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137 | Abortion | II. RELEVANT DOMESTIC LAW AND PRACTICE 52. The applicable provisions of domestic law are extensively summarised in the judgments of Tysiąc v. Poland, no. 5410/03, 20 March 2007, and R.R. v. Poland, no. 27617/04, 26 May 2011. 53. In particular, the Law on Family Planning (Protection of the Human Foetus and Conditions Permitting Pregnancy Termination), which is still in force, was passed by Parliament in 1993. Section 1 provided at that time: “every human being shall have an inherent right to life from the moment of conception”. 54. Section 4(a) of the 1993 Act reads, in its relevant part: “1. An abortion can be carried out only by a physician and where 1) pregnancy endangers the mother’s life or health; 2) prenatal tests or other medical findings indicate a high risk that the foetus will be severely and irreversibly damaged or suffer from an incurable life ‑ threatening ailment; 3) there are strong grounds for believing that the pregnancy is the result of a criminal act. 2. In the cases listed above under 2), an abortion can be performed until such time as the foetus is capable of surviving outside the mother’s body; and in cases listed under 3) above, until the end of the twelfth week of pregnancy. 3. In the cases listed under 1) and 2) above, the abortion shall be carried out by a physician working in a hospital. ... 5. The circumstances in which abortion is permitted under paragraph 1, sub-paragraphs 1) and 2) above shall be certified by a physician other than the one who is to perform the abortion, unless the pregnancy entails a direct threat to the woman’s life. The circumstances specified in paragraph 1, subparagraph 3) above shall be certified by a prosecutor.. ” THE LAW I. THIRD PARTIES’ SUBMISSIONS 55. The Court will first set out the submissions received from the third parties who were granted leave to intervene in the case. It will then examine the admissibility and merits of the applicants’ complaints under Articles 3 and 8 of the Convention. A. The Polish Helsinki Foundation for Human Rights 56. In cases of sexual violence against women and girls, distress suffered by the victims is exacerbated by the risk of unwanted pregnancy or by actual pregnancy resulting from rape. A denial of timely access to necessary medical treatment for female victims of sexual assault, including legal abortion, exposes them to additional suffering and may constitute an act of inhuman or degrading treatment. The distress of a female victim of rape may also be amplified by the unauthorised release of confidential information concerning a rape-induced pregnancy. 57. In the intervenor’s view, it is the State’s obligation, stemming from Article 3 of the Convention, to adopt detailed guidelines for the criminal justice system and health-care practitioners in order to prevent additional suffering for the victim. Therefore, developing a specialised procedure regulating conduct towards victims of sexual abuse would not only assist in collecting the necessary evidence but also, more importantly, validate and address sexual assault patients’ concerns, minimise the trauma they may experience and promote their healing. 58. In theory, the 1993 Act grants women a broad array of reproductive health services, for instance, medical, social and legal assistance, easy access to information and pre-natal testing, methods of family planning and oral contraceptives, and the possibility to terminate a pregnancy. However, despite the statutory wording, Polish women and girls face significant barriers when seeking these medical services in practice. Problems with effective access to legal abortion are reflected in governmental statistics on the execution of the Act: the official number of legal abortions carried out in Poland is very low. In 2009 there were only 538 procedures of legal abortion nationwide. In 510 of those cases the termination was caused by embryopathological factors; 27 procedures were conducted in order to protect the life and health of the pregnant woman, and only 1 abortion was carried out on grounds of the registered pregnancy having been caused by a criminal act. No comprehensive analysis has been presented to explain such a small number of abortions. The third party considers the data collected by the Government highly unreliable and doubts whether they reflect the real situation. The data should be seen against the background of police statistics to the effect that 1,816 cases of rape were reported in 2009. The low figures for lawful abortions in connection with the enforcement of the 1993 Act prove only that women find it less complicated to terminate pregnancies illegally than under the provisions of that statute. 59. Furthermore, in practice the “conscience” clause is often misused. Apart from being used by individual doctors, who fail to refer the patient to another hospital, it is also invoked by entire healthcare facilities, including public ones. Although the problem of such abuse is widely recognised, no effective monitoring mechanism has been put in place to ensure that women’s right to abortion is respected. B. The Rule of Law Institute, Lublin, Poland 60. Issues involving the legal definition of and protection of human life, the determination of the conditions for its acceptable termination, and the understanding of privacy and freedom of conscience are issues of fundamental importance deeply rooted in the culture of each society. The definition of the temporal limits of human life falls within the margin of appreciation of the States Parties. It is not the Court’s task to question the doctors’ and State authorities’ decisions on the acceptability of abortion. It has been acknowledged in the Court’s case-law that the acceptance of termination of pregnancy should be left to decisions given by the democratically elected national authorities. This approach is based on the values underpinning the Convention, such as respect for individual freedom and dignity. Understanding of notions of life and parenthood is so strongly linked to personal freedom and dignity and also to the spiritual values common to the nation that their protection cannot be taken out of the national sphere. In the examination of any case the Court should also have regard to the social and cultural specificity of Poland. 61. The notion of private life within the meaning of Article 8 of the Convention is not unlimited. Termination of pregnancy cannot be said to belong exclusively to the sphere of the mother’s private life. When a woman becomes pregnant her life becomes closely bound up with the developing child. It is not open to doubt that each decision on abortion is seriously harmful to the mother. It has long-lasting effects on her body and psyche. A woman who has decided to have an abortion for whatever dramatic reason must be treated with the utmost care and protection so as to avoid her dignity being threatened any further. This obligation of assistance rests in particular on the State officials responsible for handling such cases. C. The Coram Children’s Legal Centre, London 62. The unique, special position of children has been expressly recognised in many international human rights instruments. The best interests of the child shall be a primary consideration in proceedings touching on its situation. The best interests of the child can only be assessed properly by reference to the views, wishes and feelings of the child. Failure to establish the child’s views may render any decision as to what those best interests are, and how they are best met, unsafe and unlawful. This principle applies irrespective of the type of decision or subject matter of the decision to be taken and is applicable to judicial decision-making and to administrative proceedings. The United Nations Committee on the Rights of the Child (CRC) has emphasised the need to provide appropriate child-sensitive procedural accommodation to enable children to take part in decision-making and legal proceedings. 63. The rights protected by Article 8 of the Convention encompass protection of health and other personal information. Children are entitled to the same, if not higher, protection against non ‑ consensual disclosure of their health and other personal information to third parties, in view of their vulnerability. The CRC observed that confidential medical information concerning adolescents may only be disclosed with the consent of the person concerned or in the same situation applied to adults. Confidentiality is essential to promote the use of health services by adolescents. Other international bodies have consistently recognised the need to respect children’s privacy in matters of health as well as when they are victims of crime. 64. Separation by public authorities amounts to an interference with the family’s rights. While authorities enjoy a wide margin of appreciation in assessing the need to take a child into care, the court must still be satisfied that genuine emergency circumstances existed justifying a child’s abrupt removal from her parents’ care without consultation. The State has the burden of demonstrating that it has engaged in a careful assessment of the impact of the separation on the family and of the available alternatives. 65. In the context of a child’s placement in a juvenile centre there must be a relationship between the ground of permitted deprivation of liberty relied on and the conditions of detention. A care order resulting in placing a child in a locked room in a juvenile shelter can only be made when the child is in such danger that it is impossible for him or her to remain in the family environment. Care orders do not fall into the exhaustive list of permitted deprivations of liberty set out in Article 5 § 1 of the Convention. D. European Centre for Law and Justice, Strasbourg 66. The principle of the sanctity of life has been recognised by the Court. The right to life is an inalienable attribute of human beings and forms the supreme value in the hierarchy of human rights. Life is not merely a private good and right; it is also a public good, which explains why it should by protected by criminal law. Moreover, pregnancy does not concern merely the mother’s private life. 67. The Convention does not formulate any limitations as to the temporal scope of the protection of the right to life; it protects “everyone”. Every human life forms a continuum which begins at conception and advances towards death. Developments in in vitro fertilisation, abortion and euthanasia give rise to situations where the legal protection of life does not coincide with the natural temporal limits of life. The Court has accepted, referring to their margin of appreciation, that States are entitled to determine the moment from which that protection is accorded to a foetus. The Court has also accepted that a foetus belongs to the human race and should be protected as such. 68. Abortion amounts to an exception or derogation from the principle that human life should be protected. There is no right to abortion as such; it must be regarded only as an exception to the rule. The Convention itself does not guarantee a right to abortion. Its Article 8 does not confer such a right on women. The Convention and its Protocols must be interpreted in the light of present-day conditions; however, the Court cannot, by means of an evolutive interpretation, derive from these instruments a right that was not included therein at the outset. This is particularly so here, where the omission was deliberate. 69. Where a State allows for legal abortion, it remains under a positive obligation to protect life and to strike a balance between competing interests. Such legitimate interests must be taken into account adequately and in accordance with the obligations deriving from the Convention. Making abortion lawful does not exempt the State from its responsibility to limit recourse to it and to restrict its consequences for the exercise of fundamental rights. The fundamental rights to life and to health cannot be put on the same footing as the alleged right to abortion. These rights cannot be balanced against each other. The obligation of the State is even stronger where vulnerable persons are concerned who need to be protected against pressure exerted on them, including by their own family environment. The State should be obliged to help pregnant women respect and nurture life. When a pregnant woman envisages abortion, it is the responsibility of the State to ensure that such a decision has not been taken as a result of external pressure. 70. Medical professionals are entitled to refuse to provide medical services. This entitlement originates in their moral obligation to refuse to carry out immoral orders. The Court in its case-law has confirmed the supremacy of moral sense over positive law. Respect for the life of a human being underpins the right to conscientious objection in the medical sphere. Medical practitioners should not be obliged to perform abortion, euthanasia or in vitro fertilisation against their will and against their principles. A possible solution for this dilemma would be to establish a register of physicians qualified and willing to perform lawful abortions. E. Amnesty International 71. The United Nations Committee on the Rights of the Child has emphasised most strongly that the term “violence” must not be interpreted in such a way as to minimise the impact of, and the need to address, non ‑ physical and/or non-intentional forms of harm, such as, inter alia, neglect and psychological maltreatment. That Committee defined inhuman or degrading treatment as “violence in all its forms against children in order to extract a confession, [or] to extrajudicially punish children for unlawful or unwanted behaviours”. Unwanted behaviour in this regard may be understood broadly to include a child’s desire to terminate an unwanted pregnancy and to exercise the right to freedom of conscience. 72. The Inter-American Commission on Human Rights has remarked that victims of sexual violence cannot fully exercise their human rights unless they have access to comprehensive health-care services and information. Providing such care to victims of sexual violence should be treated as a policy priority. 73. The United Nations Special Rapporteur on Violence against Women has noted that certain violations entail different harms for men and women and therefore require different reparation regimes to remedy the wrongdoing. Unwanted pregnancies are part of this gender-specific harm. Where States fail to take a comprehensive and gender-based approach to remedying sexual violence, this may cause additional suffering. 74. The United Nations Committee on the Elimination of Discrimination against Women has recommended that States take measures to prevent coercion in regard to fertility and reproduction and to ensure that women are not forced to seek unsafe medical procedures such as illegal abortion because of a lack of appropriate services in regard to fertility control. Denial of available and legal means to prevent or terminate an unwanted pregnancy would constitute coercion. 75. The Human Rights Committee has pointed out that the extent to which a State provides rape victims with access to safe abortion is of particular relevance to an assessment of that State’s compliance with the prohibition of cruel, inhuman and degrading treatment. Given the fact that the mental distress caused by unwanted pregnancy is likely to grow over time, substantial delay in the provision of voluntary abortion services after rape may cause severe suffering. It is not enough for the State to decriminalise abortion on paper; adequate procedures must be put in place to ensure the provision of legal medical services so that both law and practice are in conformity with the international legal obligations of the State under the UN Convention against Torture. 76. Unauthorised release of confidential information about patient care and health violates the patient’s right to privacy. It may, in addition, deter women from seeking advice and treatment they need, thereby adversely affecting their health and well-being. The United Nations Committee on the Elimination of Discrimination against Women has held that breaches of confidentiality are particularly likely to render women “less willing to seek medical care ... for incomplete abortion and in cases where they have suffered sexual or physical violence”. Indeed, the general stigma attached to abortion and to sexual violence has been shown to deter women from seeking medical care, causing much distress and suffering, both physically and mentally. 77. States have an obligation to ensure that their policies favour the best interests of the child, and to give due weight to the views of the child in all matters affecting him or her, in accordance with the age and maturity of the child. The United Nations Committee on the Rights of the Child has clarified that children’s rights to be heard and to have their views given due weight must be respected systematically in all decision-making processes, and their empowerment and participation should be central to child care ‑ giving and protection. When medical personnel subjects a child to sustained and aggravated harassment with a view to getting her to continue an unwanted pregnancy she has already and repeatedly asked to terminate, this constitutes mental violence, applied by persons who have power over the child, for the purposes of forcing her to engage in an activity against her will and, potentially, punishing her for unwanted behaviour. II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION AS REGARDS THE DETERMINATION OF ACCESS TO LAWFUL ABORTION 78. The applicants complained that the facts of the case gave rise to a breach of Article 8 of the Convention. They submitted that their right to due respect for their private and family life and for the first applicant’s physical and moral integrity had been violated by the absence of a comprehensive legal framework guaranteeing her timely and unhindered access to abortion under the conditions set out by the applicable laws. Article 8 of the Convention, in so far as relevant, reads as follows: “1. Everyone has the right to respect for his private ... life ... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 1. The first applicant’s status as a victim 79. The Government submitted that the first applicant could not claim to be the victim of a breach of the Convention. The national authorities had fulfilled their positive obligation of not only ensuring a legal framework for carrying out an abortion, but, first and foremost, of guaranteeing effective measures leading to the implementation of that right. Therefore, the procedures applied by the national authorities had to be recognised as guaranteeing rights which were not only theoretical or illusory, but also practical and effective, and thus met the standards laid down in the Convention and the Court’s case ‑ law. 80. The applicants submitted that the first applicant remained a victim of a breach of Article 8 of the Convention, despite ultimately, after long and protracted efforts, having undergone an abortion. The applicants had never claimed that the first applicant’s rights had been violated because she had not been allowed access to an abortion. The core of her complaint was that the State’s actions and systemic failures in connection with the circumstances concerning the determination of her access to abortion, seen as a whole, as well as the clandestine nature of the abortion, had resulted in a violation of Article 8. 81. The unwillingness of numerous doctors to provide a referral for abortion or to carry out the lawful abortion as such constituted evidence of the State’s failure to enforce its own laws and to regulate the practice of conscientious objection. Both applicants had been misled by the doctors and the authorities as to the applicable procedure and requirements for lawful abortion. The first applicant had been given unwanted counselling by a priest, harassed by doctors and bullied by persons informed of her situation by the doctors and the priest. She had also been unlawfully torn from her mother’s custody and put into detention. When she had finally been allowed to obtain the abortion that she lawfully sought, that abortion had been performed in a clandestine manner, in a hospital five hundred kilometres from her home town. 82. The State had failed to take appropriate measures to address the systemic and deliberate violations which had breached the applicants’ right to respect for their private life. The set of circumstances surrounding the applicants’ efforts to secure a lawful abortion for the first applicant had not been remedied by the fact that she had ultimately obtained it. The first applicant had not lost her victim status because the State had not acknowledged any of the alleged violations, nor had it provided redress. 83. The Court observes that the scope of the present complaint is not limited to the mere question of access to abortion: the applicants neither challenged the Polish abortion legislation as such nor complained that the first applicant had been denied access to an abortion. Rather, the Court’s task is to examine the issues arising in connection with the procedural and practical modalities for the determination of the lawfulness of such access and, in particular, whether due regard for the applicants’ right to respect for their private and family life was had by the authorities throughout the events concerned. The fact that the first applicant ultimately obtained access to an abortion does not, by itself, deprive the applicants of their status of victims of the alleged breach of the Convention. To that extent the Government’s preliminary objection must therefore be dismissed. 84. The Court considers that the issue of the applicants’ status as victims of the alleged violation of the Convention is closely linked to the substance of their complaint under Article 8 of the Convention, and should be joined to the merits of the case. 2. Exhaustion of domestic remedies 85. The Government submitted that the applicants had failed to exhaust relevant domestic remedies. The Polish legal system provided for legal avenues which made it possible by means of civil compensation claims under Articles 417, 444 and 448 of the Civil Code, or Articles 23 and 24 of that Code, to establish liability on the part of the doctors concerned for any damage caused by medical malpractice. The Government referred to judgments given by the Supreme Court in the cases of V CK 167/03 and V CJ 161/05, given on 21 November 2003 and 13 October 2005 respectively. 86. The applicants submitted that they had had no legal means at their disposal in order to challenge the individual doctors or the decisions made by the hospital. Likewise, no remedy had been available to them in order to contest the failure to provide them with appropriate information in respect of the determination of access to abortion. The applicants had exhausted all possible effective domestic criminal-law remedies. Given the intentional nature of the acts and omissions by the State in this case, and the resulting serious impact on the applicants’ personal integrity and fundamental values, the remedy most appropriate in the circumstances of this case was a criminal ‑ law remedy (see M.C. v. Bulgaria, no. 39272/98, §§ 148 ‑ 53, ECHR 2003-XII, and X and Y v. the Netherlands, cited above, §§ 23-24). 87. The first applicant submitted that civil proceedings in this case would not have provided her with sufficient and effective remedies to vindicate her right to respect for her private life. She was a young and vulnerable rape victim, whose identity would have been disclosed to the public during civil proceedings. This would have resulted in double victimisation. She had been in a weak position and completely dependent on the doctors. The Court in M.C. v. Bulgaria stressed that “[children and other vulnerable individuals, in particular, are entitled to effective [criminal-law] protection.” ( M.C. v. Bulgaria, cited above, § 150). Applicants should therefore not be required, in the absence of a successful criminal prosecution, to obtain redress by bringing a civil action for damages. 88. The Court considers that the Government’s objection concerning the alleged failure to exhaust domestic remedies by way of pursuing a compensation claim before the civil courts in respect of this part of the application is closely linked to the substance of the applicants’ complaints under Article 8 of the Convention, and should therefore be joined to the merits of the case. 89. The Court further notes that this part of the application is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties’ submissions 90. The Government submitted that decisions concerning the carrying out of abortions belonged to the sphere of private, not family, life. Hence, solely women were able to make the relevant decisions, within the limits set by the national legal framework. They referred to the case of Boso v. Italy, where the Court had held that Article 8 of the Convention did not give a potential father any right to participate in the decision-making as to whether or not to carry out an abortion (see Boso v. Italy (dec.), no. 50490/99, 5 September 2002). Therefore this provision could not be regarded as conferring such a right on the mother of the woman seeking an abortion. 91. The fact that at the material time the first applicant was a minor did not confer on her mother, the second applicant, any rights under Article 8 of the Convention. While parental authority was a necessary element of family life, the scope and imperative nature of parental authority changed as the child developed and the functioning of the family had to be subordinated to the child’s interests. Therefore, there had been no violation of the second applicant’s rights guaranteed by Article 8 of the Convention. 92. As regards the second applicant, the Government argued that the instant case differed fundamentally from the case of Tysiąc v. Poland, because ultimately the applicant had had access to an abortion within the time ‑ limit provided for by the statute. The legal conditions for a lawful abortion had existed in the present case and there had never been any dispute between the first applicant and the doctors whether the conditions for a legal abortion obtained. The refusal to perform an abortion at the Lublin hospital had resulted from the statutory right of a doctor to refrain from performing medical services contrary to his or her conscience, the so-called “conscience clause” provided for under Article 39 of the Doctor and Dentist Professions Act. That Act obliged a doctor to refer the patient to another physician. The doctors in that hospital had failed to refer the applicants to another medical practitioner, but that had not been to the first applicant’s detriment because she had ultimately obtained access to an abortion in a public hospital within the time limit provided for by law. Hence, it could not be said that in the circumstances of the present case there had been no procedural mechanism available with a view to determining access to a lawful abortion. 93. The applicants submitted that the absence of a comprehensive legal framework governing the practice of conscientious objection and ensuring access to lawful termination of pregnancy in medical facilities had allowed the doctors to deny the first applicant her right to terminate her pregnancy in a respectful, dignified and timely manner. The applicants had been given contradictory and inaccurate information about the legal conditions that had to be met to obtain a lawful abortion (the waiting time, the necessary documents, the formal requirements which such documents had to meet, the necessity for parental consent by both parents). They had thus been hindered in taking a free decision on the matter of an abortion. 2. The Court’s assessment (a) General principles 94. The essential object of Article 8 is to protect the individual against arbitrary interference by public authorities. Any interference under the first paragraph of Article 8 must be justified in terms of the second paragraph as being “in accordance with the law” and “necessary in a democratic society” for one or more of the legitimate aims listed therein. According to the Court’s settled case-law, the notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to one of the legitimate aims pursued by the authorities (see, among other authorities, Olsson v. Sweden (No. 1), 24 March 1988, § 67, Series A no. 130). 95. In addition, there may also be positive obligations inherent in effective “respect” for private life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of relations between individuals, including both the provision of a regulatory framework of adjudicatory and enforcement machinery protecting individuals’ rights, and the implementation, where appropriate, of specific measures (see, among other authorities, X and Y v. the Netherlands, 26 March 1985, § 23, Series A no. 91). 96. The Court has previously found States to be under a positive obligation to secure to their citizens the right to effective respect for their physical and psychological integrity (see, among many other authorities, Glass v. the United Kingdom, no. 61827/00, §§ 74-83, ECHR 2004 ‑ II; Sentges v. the Netherlands (dec.), no. 27677/02, 8 July 2003; Pentiacova and Others v. Moldova (dec.), no. 14462/03, ECHR 2005-...; Carlo Dossi and others v. Italy, (dec.), no. 26053/07, 12 October 2010; Yardımcı v. Turkey, no. 25266/05, 5 January 2010; §§ 55-56; Gecekuşu v. Turkey (dec.), no. 28870/05, 25 May 2010). These obligations may involve the adoption of measures including the provision of an effective and accessible means of protecting the right to respect for private life (see, among other authorities, McGinley and Egan v. the United Kingdom, 9 June 1998, § 101, Reports of Judgments and Decisions 1998 ‑ III; and Roche v. the United Kingdom [GC], no. 32555/96, § 162, ECHR 2005 ‑ X). While the Court has held that Article 8 cannot be interpreted as conferring a right to abortion, it has found that the prohibition of abortion when sought for reasons of health and/or well ‑ being falls within the scope of the right to respect for one’s private life and accordingly of Article 8 (see A, B and C v. Ireland [GC], no. 25579/05, § 245, 16 December 2010, § 214). In particular, the Court held in this context that the State’s obligations include both the provision of a regulatory framework of adjudicatory and enforcement machinery protecting individuals’ rights, and the implementation, where appropriate, of specific measures ( Tysiąc v. Poland, cited above, § 110; A, B and C v. Ireland [GC], cited above, § 245; and R.R. v. Poland, cited above, § 184). 97. The Court has already found that there is indeed a consensus amongst a substantial majority of the Contracting States of the Council of Europe towards allowing abortion and that most Contracting Parties have in their legislation resolved the conflicting rights of the foetus and the mother in favour of greater access to abortion (see ( A, B and C v. Ireland [GC], cited above, §§ 235 and 237). In the absence of such a common approach regarding the beginning of life, the examination of national legal solutions as applied to the circumstances of individual cases is of particular importance for the assessment of whether a fair balance between individual rights and the public interest has been maintained (see also, for such an approach, A, B and C v. Ireland, cited above, § 229-241). 98. Since the nature of the right to decide on the termination of a pregnancy is not absolute, the Court is of the view that the circumstances of the present case are more appropriately examined from the standpoint of the respondent State’s positive obligations arising under Article 8 of the Convention (see, mutatis mutandis, Tysiąc v. Poland, cited above, § 108). 99. Finally, the Court reiterates that in the assessment of the present case it should be borne in mind that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective (see Airey v. Ireland, 9 October 1979, § 24, Series A no. 32). The Court has already found in the context of similar cases against Poland that once the State, acting within its limits of appreciation, adopts statutory regulations allowing abortion in some situations, it must not structure its legal framework in a way which would limit real possibilities to obtain an abortion. In particular, the State is under a positive obligation to create a procedural framework enabling a pregnant woman to effectively exercise her right of access to lawful abortion ( Tysiąc v. Poland, cited above, § 116 ‑ 124, R.R. v. Poland, cited above, § 200). The legal framework devised for the purposes of the determination of the conditions for lawful abortion should be “shaped in a coherent manner which allows the different legitimate interests involved to be taken into account adequately and in accordance with the obligations deriving from the Convention” ( A, B and C v. Ireland [GC], cited above, § 249). Whilst Article 8 contains no explicit procedural requirements, it is important for the effective enjoyment of the rights guaranteed by that provision that the relevant decision ‑ making process is fair and such as to afford due respect for the interests safeguarded by it. What has to be determined is whether, having regard to the particular circumstances of the case, and notably the nature of the decisions to be taken, an individual has been involved in the decision-making process, seen as a whole, to a degree sufficient to provide her or him with the requisite protection of their interests (see, mutatis mutandis, W. v. the United Kingdom, 8 July 1987, §§ 62 and 64, Series A no. 121). The Court has already held that in the context of access to abortion the relevant procedure should guarantee to a pregnant woman at least the possibility to be heard in person and to have her views considered. The competent body or person should also issue written grounds for its decision (see Tysiąc v. Poland, cited above, § 117). (b) Application of the principles to the circumstances of the present case 100. The Court first notes that the 1993 Act provides for the possibility of lawful abortion in certain narrowly defined situations. In its judgments referred to above the Court has already highlighted the importance of procedural safeguards in the context of the implementation of the 1993 Act when it comes to determining whether the conditions for lawful abortion provided for by that Act obtain. It held that Polish law did not contain any effective procedural mechanisms capable of determining whether these conditions were fulfilled in an individual case, either in the context of a dispute between a pregnant woman and doctors as to whether the conditions for lawful abortion on grounds of a threat to the woman’s health were met (see Tysiąc v. Poland, cited above, §§ 119–124), or in the context of possible foetal malformation confirmed by an initial diagnosis (see R.R. v. Poland, cited above, § 200 and 207). The present case differs from those two cases in that it concerns an unwanted pregnancy resulting from rape. Under Article 4 (a) 1 (5) of the 1993 Act abortion can lawfully be carried out where there are strong grounds for believing that the pregnancy was the result of a criminal act, certified by a prosecutor. 101. The Court now has to examine how the legal framework was applied to the applicants’ case. 102. In this connection, the Court observes that the first applicant received from the public prosecutor the certificate referred to above (see paragraph 10 above). However, the applicants contacted public hospitals in Lublin considerable difficulties arose in obtaining access to an abortion. They received contradictory information as to whether they needed a referral in addition to the certificate from the prosecutor, as to who could perform the abortion, who could make a decision, whether there was any waiting time prescribed by law, and what other conditions, if any, had to be complied with. Ultimately, after an argument with the second applicant, a head of the gynaecological ward at the Lublin Jan Boży hospital refused to allow the abortion to be performed in her ward, relying on her personal views. The Court notes that the second applicant was requested to sign a consent form to the first applicant’s abortion which warned that the abortion could lead to her daughter’s death (see paragraph 15 above). No cogent reasons have been advanced to show that there were special grounds on which in the circumstances of the case an abortion could entail such danger. 103. The applicants subsequently travelled to Warsaw, where the first applicant was admitted to another hospital. She was told there that she could have an abortion on the basis of the certificate issued by the prosecutor (see paragraph 10 above) and a medical certificate issued by the national consultant in gynaecology to the effect that she had a right to an abortion. However, the applicants were told that the first applicant was obliged by law to wait another three days before having an abortion. A psychologist spoke with the first applicant’s parents and with the first applicant. She apparently prepared an opinion on the case, to which the second applicant was not allowed access. The doctor who had admitted the first applicant to the hospital told her that a lot of pressure had been put on the hospital with a view to discouraging it from performing the abortion, and that the hospital had received numerous e-mails from persons criticising the applicants for the decision to have an abortion. 104. Further, when the second applicant filed a complaint with the Office for Patients’ Rights of the Ministry of Health asking them to help her daughter obtain a lawful abortion, a Ministry official told her that the daughter’s statement consenting to an abortion would have to be witnessed by three persons. When the second applicant told him that that statement had in fact been signed in the presence of three witnesses, he informed her that the witnesses’ identification numbers were required and that the faxed copy had to be notarised. 105. Ultimately, the applicants were notified by the Ministry of Health that to have an abortion the first applicant would have to go to a public hospital in Gdansk. The Court notes that that hospital was approximately 500 kilometres from the applicant’s home. The Court fails to see any justification for such an arrangement in respect of the provision of a lawful medical service. It has not been argued, let alone shown, that such a service was not available in a medical establishment closer to the applicants’ normal address. 106. In so far as the Government referred in their submissions to the right of physicians to refuse certain services on grounds of conscience, relying on Article 9 of the Convention, the Court reiterates that the word “practice” used in Article 9 § 1 does not denote each and every act or form of behaviour motivated or inspired by a religion or a belief (see, among many other authorities, Pichon and Sajous v. France (dec.), no. 49853/99, ECHR 2001-X). For the Court, States are obliged to organise their health service system in such a way as to ensure that the effective exercise of freedom of conscience by health professionals in a professional context does not prevent patients from obtaining access to services to which they are entitled under the applicable legislation (see R.R. v. Poland, cited above, no. 27617/04, § 206). 107. In this connection, the Court notes that Polish law has acknowledged the need to ensure that doctors are not obliged to carry out services to which they object, and put in place a mechanism by which such a refusal can be expressed. This mechanism also includes elements allowing the right to conscientious objection to be reconciled with the patient’s interests, by making it mandatory for such refusals to be made in writing and included in the patient’s medical record and, above all, by imposing on the doctor an obligation to refer the patient to another physician competent to carry out the same service. However, it has not been shown that these procedural requirements were complied with in the present case or that the applicable laws governing the exercise of medical professions were duly respected. 108. On the whole, the Court finds that the staff involved in the applicants’ case did not consider themselves obliged to carry out the abortion expressly requested by the applicants on the strength of the certificate issued by the prosecutor. The events surrounding the determination of the first applicant’s access to legal abortion were marred by procrastination and confusion. The applicants were given misleading and contradictory information. They did not receive appropriate and objective medical counselling which would have due regard to their own views and wishes. No set procedure was available to them under which they could have their views heard and properly taken into consideration with a modicum of procedural fairness. 109. As to the second applicant, the Court is fully aware that the issues involved for her in the case were different from those of the first applicant. The Court acknowledges that in a situation of unwanted pregnancy the mother of a minor girl is not affected in the same way. It is of the view that legal guardianship cannot be considered to automatically confer on the parents of a minor the right to take decisions concerning the minor’s reproductive choices, because proper regard must be had to the minor’s personal autonomy in this sphere. This consideration applies also in a situation where abortion is envisaged as a possible option. However, it cannot be overlooked that the interests and life prospects of the mother of a pregnant minor girl are also involved in the decision whether to carry the pregnancy to term or not. Likewise, it can be reasonably expected that the emotional family bond makes it natural for the mother to feel deeply concerned by issues arising out of reproductive dilemmas and choices to be made by the daughter. Hence, the difference in the situation of a pregnant minor and that of her parents does not obviate the need for a procedure for the determination of access to a lawful abortion whereby both parties can be heard and their views fully and objectively considered, including, if necessary, the provision of a mechanism for counselling and reconciling conflicting views in favour of the best interest of the minor. It has not been shown that the legal setting in Poland allowed for the second applicant’s concerns to be properly addressed in a way that would respect her views and attitudes and to balance them in a fair and respectful manner against the interests of her pregnant daughter in the determination of such access. 110. In so far as the Government relied on the instruments of civil law as capable of addressing the applicants’ situation, the Court has already held, in the context of the case of Tysiąc v. Poland, cited above, that the provisions of the civil law as applied by the Polish courts did not make available a procedural instrument by which a pregnant woman seeking an abortion could fully vindicate her right to respect for her private life. The civil ‑ law remedy was solely of a retroactive and compensatory character. The Court was of the view that such retrospective measures alone were not sufficient to provide appropriate protection of the personal rights of a pregnant woman in the context of a controversy concerning the determination of access to lawful abortion, and emphasised the vulnerability of the woman’s position in such circumstances (see Tysiąc v. Poland, no. 5410/03, § 125, ECHR 2007 ‑ IV, and R.R. v. Poland, cited above, § 209, ECHR 2011 (extracts)). Given the retrospective nature of compensatory civil law, the Court fails to see any grounds on which to reach a different conclusion in the present case. The Court is fully aware of examples from the case ‑ law of the Polish civil courts where damages in tort were awarded to women complaining of a breach of their personal rights in various situations connected with unwanted pregnancies and access to abortion (see R.R. v. Poland, cited above, § 79-80, see also paragraph 52 above). However, in those cases the damage had arisen out of facts posterior to the refusal of abortion. No examples of case ‑ law have been adduced before the Court whereby the civil courts acknowledged and redressed damage caused to a pregnant woman by the anguish, anxiety and suffering entailed by her efforts to obtain access to abortion. The Court finds that in the present case civil litigation did not constitute an effective and accessible procedure allowing the applicants to vindicate their rights in the context of the determination of access to a lawful abortion. The Court therefore dismisses the Government’s preliminary objection concerning civil litigation as an effective remedy. 111. The Court is of the view that effective access to reliable information on the conditions for the availability of lawful abortion, and the relevant procedures to be followed, is directly relevant for the exercise of personal autonomy. It reiterates that the notion of private life within the meaning of Article 8 applies both to decisions to become and not to become a parent ( Evans v. the United Kingdom [GC], no. 6339/05, § 71, ECHR 2007 ‑ I; R.R. v. Poland, cited above, § 180). The nature of the issues involved in a woman’s decision to terminate a pregnancy or not is such that the time factor is of critical importance. The procedures in place should therefore ensure that such decisions are taken in good time. The uncertainty which arose in the present case despite a background of circumstances in which under Article 4 (a) 1.5 of the 1993 Family Planning Act there was a right to lawful abortion resulted in a striking discordance between the theoretical right to such an abortion on the grounds referred to in that provision and the reality of its practical implementation ( Christine Goodwin v. the United Kingdom [GC], cited above, §§ 77-78; S.H. and Others v. Austria, cited above, § 74, mutatis mutandis; and A, B and C v. Ireland [GC], cited above). 112. Having regard to the circumstances of the case, the Court concludes that the authorities failed to comply with their positive obligation to secure to the applicants effective respect for their private life. There has therefore been a breach of Article 8 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION AS REGARDS THE DISCLOSURE OF THE APPLICANTS’ PERSONAL AND MEDICAL DATA 113. The applicants complained that there had been a breach of Article 8 of the Convention as a result of the disclosure of information concerning their case to the general public. A. Admissibility 114. The Government submitted that the applicants should have had recourse to civil litigation against the persons involved in their case, claiming a breach of their personal rights within the meaning of Articles 23 and 24 of the Civil Code. 115. The applicants argued that there were no effective remedies in Poland for the violations complained of. Where criminal law could be used, such measures had been resorted to in the present case, but to no avail. Civil litigation would have led to the subsequent disclosure of the applicants’ identities and to further victimisation. It should not be overlooked that all the criminal proceedings instituted at the applicants’ request against various persons had eventually been discontinued. In any event, the applicants had not known the identity and addresses of the perpetrators of certain of the offences concerned. As under the Polish law names and addresses of defendants were necessary in order to bring a civil case before the civil court, the applicants had not been in a position to pursue civil litigation. As a result, the applicants’ rights could not be vindicated under the civil law. It was the responsibility of the State to establish the identity of the perpetrators of any criminal offences. 116. The aim of the rule of exhaustion of domestic remedies referred to in Article 35 § 1 is to afford Contracting States an opportunity to put matters right through their own legal system before having to answer before an international body for their acts (see, among many other authorities, Egmez v. Cyprus, no. 30873/96, § 64, ECHR 2000-XII). Where there is a choice of remedies, the exhaustion requirement must be applied to reflect the practical realities of the applicant’s position so as to ensure the effective protection of the rights and freedoms guaranteed by the Convention (see, among many other authorities, Wiktorko v. Poland, no. 14612/02, § 36, 31 March 2009, and Krumpel and Krumpelová v. Slovakia, no. 56195/00, § 43, 5 July 2005). Moreover, an applicant who has used a remedy which is apparently effective and sufficient cannot be required also to have tried others that were also available but probably no more likely to be successful (see, among many other authorities, Assenov and Others v. Bulgaria, 28 October 1998, § 86, Reports 1998-VIII; Aquilina v. Malta [GC], no. 25642/94, § 39, ECHR 1999-III; and Günaydin v. Turkey (dec.), no. 27526/95, 25 April 2002). 117. The Court notes that the applicants complained to the prosecution authorities, which opened criminal investigations into a number of alleged offences, including two sets of investigations concerning specifically the allegations of disclosure of information about the case to the general public (see paragraphs 50 ‑ 51 above). The Court does not find the applicants’ choice of procedure unreasonable. The applicants tried to have the persons they believed to be guilty of criminal conduct towards them identified and punished. The authorities found that the persons concerned had no case to answer. In particular, the Lublin District Court considered it normal that cases of teenage pregnancy gave rise to controversy and were normally widely discussed by third parties, social and church organisations (see paragraph 51 above). Having regard to the fact that the applicants’ efforts to have the disclosure of their personal information examined in criminal proceedings were unsuccessful, the Court considers that the applicants could not be required to embark on civil proceedings which, in the light of the findings made by the authorities, did not offer good prospects of the authorities finding that the conduct complained of was unlawful within the civil sense of that term. 118. Accordingly, the Court dismisses the Government’s preliminary objection as to the non-exhaustion of domestic remedies. 119. The Court also considers that this part of the application is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further finds that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties’ submissions 120. The Government were of the view that the applicants’ complaint about the disclosure of information concerning their situation, their personal data and their whereabouts had been examined in a number of domestic investigations, including the investigations initiated by the second applicant. However, the authorities had ultimately found that no criminal offence had been committed (see paragraphs 50 ‑ 51 above). 121. The Government further submitted that the information concerning the case had been made public by the first applicant. She had informed her friend of her predicament by way of a text message sent to her friend during the night of 25 May 2008 and by instant messaging, asking for assistance and also thanking her for informing the school. Later on, the Family Court, when deciding on the first applicant’s deprivation of liberty, had had regard to correspondence from the first applicant’s school referring to this evidence (see paragraph 34 above). In the Government’s submission, this correspondence confirmed that she had taken the initiative and voluntarily provided information about her private life and her intention to have an abortion. Information made available voluntarily by the persons concerned was not subject to protection under Article 8 of the Convention (see N.F. v. Italy, no. 37119/97, § 39, 2 August 2001). 122. The Government argued that actions taken by the medical staff of the Jan Boży hospital in Lublin had constituted a part of their routine functions. The first applicant had requested to see a priest and he had talked to her in the exercise of his ministry. The medical staff had not initiated any action with a view to making her change her mind as to the abortion. The hospital had not disclosed information about the first applicant’s stay, her family situation, her health, or about her personal details. That information had not been provided to the hospital in Warsaw. 123. The Government further argued that the press release issued by the director of the Jan Boży Hospital in Lublin had never been published or announced to the public. No press conference had been organised to disseminate information about the case. Because of the media attention surrounding the case and pressure exerted by journalists, the media which had contacted the hospital’s management had received a comment that the doctors had invoked the “conscience clause”. The hospital managers had been obliged to comply with their duty of cooperating with the press in their capacity as persons exercising public function. The hospital had therefore not breached medical secrecy. 124. To sum up, the Government were of the view that the applicants’ right to respect for their private life had not been violated. 125. The applicants submitted that there had been a breach of Article 8 of the Convention as a result of the disclosure of information concerning the first applicant’s pregnancy and their situation to priest K.P. and to the general public. They complained about the press release about the case issued by the management of the Lublin hospital, communication of information to the hospital in Warsaw concerning the first applicant’s identity, her situation and her and her mother’s wish to have the pregnancy terminated, and the disclosure of the applicants’ identity and whereabouts to the general public and the ensuing harassment by various third parties. 126. The applicants complained that the medical staff of the Jan Boży hospital in Lublin had informed priest K.P. about their predicament without asking for their permission. As a result, he had been allowed to approach the first applicant without her or her family having asked to see him and without any thought having been given to the applicants’ wishes. Inappropriate and manipulative pressure had been exerted on the family by Dr. W.S. No proper respect had been shown for their own decisions and views. Information about the applicants’ case had been leaked to the public, including by way of a press release issued by that hospital. As a result, the applicants had found themselves in the midst of a public controversy and the subject of a heated media debate. A hospital in Warsaw where they had subsequently sought assistance had received information about the case from the Lublin hospital without requesting it. When the first applicant was in the hospital in Warsaw she had been harassed by anti-choice activists. The case had become national news and developments in it had been closely followed by many newspapers. 127. The respondent State was liable for the above-mentioned violations of the applicants’ private and family life. Medical staff working for the public hospital and therefore considered to be agents of the State under Polish law had released sensitive information covered by the doctor ‑ patient privilege guaranteed under Polish law. The State was therefore responsible for the actions taken by medical personnel, individual doctors, and civil servants from the Ministry of Health. 2. The Court’s assessment 128. The Court has previously held that the protection of personal data, not least medical data, is of fundamental importance to a person’s enjoyment of his or her right to respect for their private and family life as guaranteed by Article 8 of the Convention. Respecting the confidentiality of health data is a vital principle in the legal systems of all the Contracting Parties to the Convention. The disclosure of such data may dramatically affect an individual’s private and family life, as well as his or her social and employment situation, by exposing that person to opprobrium and the risk of ostracism (see Z v. Finland, 25 February 1997, §§ 95 ‑ 96, Reports 1997 ‑ I). Respecting the confidentiality of health data is crucial not only for the protection of a patient’s privacy but also for the maintenance of that person’s confidence in the medical profession and in the health services in general. Without such protection, those in need of medical assistance may be deterred from seeking appropriate treatment, thereby endangering their own health (see Z v. Finland, cited above, § 95, and Biriuk v. Lithuania, no. 23373/03, § 43, 25 November 2008). 129. The Court notes at the outset that it is not in dispute that the management of the Jan Boży hospital in Lublin issued a press release for the purposes of informing the press about the first applicant’s case, her pregnancy and the hospital’s refusal to carry out an abortion. The Government have also acknowledged that the journalists who contacted that hospital were given information about the circumstances of case. Nor is it in dispute that following the press release and information received by journalists from the hospital the case became the subject of a number of articles in the national press. The hospital was a public hospital for whose acts the State is responsible for the purposes of the Convention (see Glass v. the United Kingdom, no. 61827/00, § 71, ECHR 2004 ‑ II, and I. v. Finland, no. 20511/03, § 35, 17 July 2008). 130. The Court has noted the Government’s argument that the press release did not contain the applicants’ names or other details making it possible to establish their identity. However, the Court observes that after that communiqué the first applicant was contacted by various third parties who sent numerous text messages to her urging her to abandon her intention to have an abortion. The doctors at the Warsaw hospital informed the applicants that a lot of pressure had been put on the hospital with a view to discouraging it from carrying out the abortion. That hospital had received numerous e-mails from persons criticising the applicants for their intention to have recourse to an abortion. In the evening of 4 June 2008 an unidentified woman went to the first applicant’s room and tried to convince her to continue with the pregnancy. When the applicants were leaving that hospital on 5 June 2008 they were accosted by anti-abortion activists. Hence, the Court has no choice but to conclude that the information made available to the public must have been detailed enough to make it possible for third parties to establish the applicants’ whereabouts and to contact them, either by mobile phone or personally. 131. In so far as the Government appear to argue that the first applicant, by contacting a friend via text messages and disclosing her predicament to her, had wished to make her case public, the Court notes that this can reasonably be regarded as a call for assistance, addressed to that friend and possibly also to her close environment, such as the school, by a vulnerable and distraught teenager in a difficult life situation. By no means can it be equated with an intention to disclose information about her pregnancy, her own views and feelings about it and about her family’s attitude towards it to the general public and to the press. 132. The Court finds that there was thus an interference with the applicants’ right to respect for their private life. Such interference gives rise to a breach of Article 8 unless it can be shown that it was “in accordance with the law”, pursued one or more legitimate aim or aims as defined in paragraph 2, and was “necessary in a democratic society” to attain them. 133. It is true that a State enjoys a certain margin of appreciation in deciding what “respect” for private life requires in particular circumstances (see Stubbings and Others v. the United Kingdom, 22 October 1996, §§ 62 ‑ 63, Reports 1996 ‑ IV, and X and Y v. the Netherlands, 26 March 1985, § 24, Series A no. 91). However, the fact that the issue of the availability of legal abortion in Poland is a subject of heated debate does not confer on the State a margin of appreciation so wide as to absolve the medical staff from their uncontested professional obligations regarding medical secrecy. It has not been argued, let alone shown, that in the present case there were any exceptional circumstances of such a character as to justify public interest in the first applicant’s health (compare and contrast, Editions Plon v. France, no. 58148/00, ECHR 2004 ‑ IV, mutatis mutandis, where the Court held that a permanent ban on distribution of a book disclosing health information about a public person was not necessary in a democratic society). The Court fails to see how the disclosure of information about the first applicant’s unwanted pregnancy and about the refusal to carry out an abortion could be justified by media interest in the case. In the Court’s view it cannot be regarded as compatible either with the Convention standards as to the State’s obligation to secure respect for one’s private or family life, or with the obligations of the medical staff to respect patients’ rights laid down by Polish law. It did not therefore pursue a legitimate aim. That of itself is sufficient to ground a breach of Article 8 of the Convention. 134. However, the Court considers that it is also appropriate to address the lawfulness requirement. The Government referred in this connection to the general obligation of the hospital managers to co-operate with the press in their capacity as persons exercising a public function. However, no provision of domestic law has been cited on the basis of which information about individual patients’ health issues, even non-nominate information, could be disclosed to the general public by way of a press release. It further observes that the first applicant was entitled to respect for her privacy regarding her sexual life, whatever concerns or interest her predicament generated in the local community. The national law expressly recognised the rights of patients to have their medical data protected, and imposed on health professionals an obligation to abstain from disclosing information about their patients’ conditions. Likewise, the second applicant was entitled to the protection of information concerning her family life. Yet, despite this obligation, the Lublin hospital made information concerning the present case available to the press. 135. In the light of the foregoing considerations, the Court considers that the disclosure of information about the applicants’ case was neither lawful nor served a legitimate interest. 136. In the absence of a legitimate aim or legal basis for the interference complained of, it is not necessary to ascertain whether it was necessary in a democratic society within the meaning of Article 8 § 2 of the Convention. 137. There has therefore been a violation of Article 8 of the Convention. IV. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 138. The applicants complained of the unlawful removal of the first applicant from the custody of her mother, and her placement in a juvenile shelter and later in a hospital. They referred to Article 5 of the Convention, which, in so far as relevant, provides as follows: “1. ... No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority; ...” A. The parties’ observations 139. The Government submitted that deprivation of liberty pursuant to Article 5 § 1 (d) of the Convention was allowed in most of the States Parties for the purpose of supervision of a minor’s education or to bring him or her before a relevant authority, in the minor’s interest, and also where the minor was not charged with a punishable act, but his or her development was endangered. 140. The provision of Polish law applied in the present case empowered a family court to place a minor with a foster family or in an educational care centre. A court could interfere with parental authority as soon as a potential threat to the interests of the child came to light in order to prevent its negative consequences. Such an interference was not conditional on the inadequate performance of the parents, because a restriction of parental authority was not a measure of repression against parents, but a measure for the protection of the child which at the same time provided assistance to parents who were not coping adequately with their educational responsibilities. 141. In the present case the domestic court had had evidence at its disposal that had led it to reasonably believe that the second applicant’s interests – not only her development, but also her health and life – were seriously threatened. She had been deprived of her liberty on the basis of a lawful decision designed to guarantee her interests. 142. In the Government’s view, the procedure under which the first applicant had been deprived of her liberty had been fair. The decision had been taken promptly after the court learned about the first applicant’s situation. Likewise, the decision had been lifted as soon as the grounds on which she had been deprived of her liberty had ceased to exist. The authorities could not be accused of having acted arbitrarily. 143. The applicants submitted that, considering the first applicant’s age, her distress and her unwanted pregnancy, the decision to deprive her of her liberty had been manifestly unjustified, excessive and extremely stressful for both applicants. B. The Court’s assessment 144. It is not in dispute between the parties that the first applicant was “deprived of [her] liberty” within the meaning of Article 5 § 1. The Court reiterates that the exhaustive list of permitted deprivations of liberty set out in Article 5 § 1 must be interpreted strictly (see Guzzardi v. Italy, 6 November 1980, §§ 96, 98 and 100, Series A no. 39). 145. It is further noted that detention must be lawful both in domestic and Convention terms: the Convention lays down an obligation to comply with the substantive and procedural rules of national law and requires that any deprivation of liberty should be in keeping with the purpose of Article 5, which is to protect an individual from arbitrariness (see Winterwerp v. the Netherlands, 24 October 1979, §§ 39 and 45, Series A no. 33; Bozano v. France, 18 December 1986, § 54, Series A no. 111; and Weeks v. the United Kingdom, 2 March 1987, § 42, Series A no. 114). In this regard, there must be a relationship between the ground of permitted deprivation of liberty relied on and the conditions of detention (see Aerts v. Belgium, 30 July 1998, § 46, Reports 1998 ‑ V, with further references). 146. The Court observes that the first applicant was placed in the juvenile shelter pursuant to Article 109 of the Family and Custody Code. It can therefore accept that the decision of the Family Court was lawful in terms of domestic law. 147. As to Convention lawfulness, the Government justify her detention on the grounds of “educational supervision” within the meaning of Article 5 § 1 (d). The Court has therefore considered whether the detention complied with the conditions imposed by that subsection. The Court has accepted that, in the context of the detention of minors, the words “educational supervision” must not be equated rigidly with notions of classroom teaching: in the context of a young person in local authority care, educational supervision must embrace many aspects of the exercise, by the local authority, of parental rights for the benefit and protection of the person concerned (see Koniarska v. the United Kingdom, (dec.), no. 33670/96, 12 October 2000). 148. The Court observes that the Family Court imposed detention on the first applicant, having regard to her pregnancy and referring to the doubts as to whether she was under pressure to have an abortion. The Court has already acknowledged, in the context of Article 8 of the Convention, that there was a difference in the way in which the pregnancy affected the situation and life prospects of the first and second applicants (see paragraph 110 above). It was therefore legitimate to try to establish with certainty whether the first applicant had had an opportunity to reach a free and well ‑ informed decision about having recourse to abortion. However, the essential purpose of the decision on the first applicant’s placement was to separate her from her parents, in particular from the second applicant, and to prevent the abortion. The Court is of the view that by no stretch of the imagination can the detention be considered to have been ordered for educational supervision within the meaning of Article 5 § 1 (d) of the Convention if its essential purpose was to prevent a minor from having recourse to abortion. Furthermore, the Court is of the opinion that if the authorities were concerned that an abortion would be carried out against the first applicant’s will, less drastic measures than locking up a 14 ‑ year old girl in a situation of considerable vulnerability should have at least been considered by the courts. It has not been shown that this was indeed the case. 149. Accordingly, the Court concludes that the first applicant’s detention between 4 and 14 June 2008, when the order of 3 June 2008 was lifted, was not compatible with Article 5 § 1 of the Convention. V. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 150. The applicants further complained that the facts of the case had given rise to a breach of Article 3 of the Convention in respect of the first applicant. This provision, in so far as relevant, reads as follows: “No one shall be subjected to ... inhuman or degrading treatment ...” 151. The Court notes that this part of the application is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. A. The parties’ submissions 152. In the Government’s view, the first applicant had not been subjected to treatment constituting a breach of Article 3 of the Convention. The applicant may have experienced stress or felt uncomfortable, but the treatment she complained about had not attained the minimum level of severity to consider it a breach of the said article of the Convention. On 9 April 2008 the second applicant had been offered psychological support for the first applicant, who had been given contraception counselling (the offer of post ‑ coital contraception). When the first applicant experienced pain and vaginal bleeding at the juvenile shelter on 6 June 2008, she had been given medical assistance. 153. The purpose of the first applicant’s trip to the hospital in Gdańsk had been to help her in exercising her right to have an abortion. It had not been the intention of the authorities to subject her to debasing or inhuman treatment. Any discomfort that she might have felt had been connected with normal travel circumstances. The national authorities had taken it upon themselves to organise the travel and to provide means of transport. 154. In the Government’s assessment, the situation in which the first applicant had found herself could in no way be compared to the situation of the applicant in the case of Tysiąc, referred to above, or that of the applicants in the case of A, B and C v. Ireland [GC], cited above. It should be noted that she had obtained the medical service she requested within the time ‑ limit provided for by the law. 155. The first applicant complained that she had been subjected to physical and mental suffering amounting to inhuman and degrading treatment by the medical and law-enforcement authorities. Following the decision of the Lublin District Court, the first applicant had been taken from her mother’s custody, put in a police car, and driven around for hours without proper food, water or access to a toilet. In the shelter she had been locked up and not given prompt medical assistance despite vaginal bleeding and intense pain. 156. When the first applicant had finally been allowed to have a legal termination of pregnancy, she had been driven in secret by the Ministry of Health to a hospital approximately 500 kilometers from her home. The applicant had not been provided with information on post-abortion care and immediately after the abortion she had been driven back home. The first applicant had been unnecessarily and repeatedly questioned about the circumstances concerning the rape, which had been traumatic for her. The circumstances of the case, seen as a whole, had exposed the first applicant to serious uncertainty, fear and anguish. The case had become national news; she, along will her mother, had been harassed by various persons driven by their own agenda who had no regard whatsoever for their dignity or the difficulty and vulnerability of their situation. B. The Court’s assessment 157. According to the Court’s well ‑ established case-law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum level of severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see, among many other authorities, Price v. the United Kingdom, no. 33394/96, § 24, ECHR 2001-VII; Kupczak v. Poland, no. 2627/09, § 58, 25 January 2011; Wiktorko v. Poland, no. 14612/02, §§ 44 and 54, 31 March 2009 and R.R. v. Poland, cited above, § 148). 158. Treatment has been held by the Court to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch, and caused either actual bodily injury or intense physical and mental suffering (see, among many other authorities, Labita v. Italy [GC], no. 26772/95, § 120, ECHR 2000 ‑ IV). 159. Treatment has been considered “degrading” when it was such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them (see, among many other authorities, Iwańczuk v. Poland, no. 25196/94, § 51, 15 November 2001, and Wiktorko v. Poland, cited above). 160. Although the purpose of such treatment is a factor to be taken into account, in particular, whether it was intended to humiliate or debase the victim, the absence of any such purpose does not inevitably lead to a finding that there has been no violation of Article 3. Moreover, it cannot be excluded that acts and omissions on the part of the authorities in the field of health-care policy may in certain circumstances engage their responsibility under Article 3 (see, for example, Powell v. the United Kingdom (dec.), no. 45305/99, ECHR 2000-V). The Court has also made findings of a breach of this provision in the context of reproductive rights (see V.C. v. Slovakia, no. 18968/07, §§ 106-120, ECHR 2011 (extracts). 161. For the Court’s assessment of this complaint it is of a cardinal importance that the first applicant was at the material time only fourteen years old. The certificate issued by the prosecutor confirmed that her pregnancy had resulted from unlawful intercourse. The Court cannot overlook the fact that the medical certificate issued immediately afterwards confirmed bruises on her body and concluded that physical force had been used to overcome her resistance. 162. In the light of the above, the Court has no choice but to conclude that the first applicant was in a situation of great vulnerability. 163. However, when the applicant was admitted to Jan Boży hospital in Lublin pressure was exerted on her by the chief doctor who tried to impose her own views on the applicant. Furthermore, the applicant was obliged to talk to a priest without being asked whether she in fact wished to see one. Considerable pressure was put on her and on her mother. Dr W.S. made the mother sign a declaration acknowledging that an abortion could lead to the first applicant’s death. The Court has already noted that no cogent medical reasons have been put forward to justify the strong terms of that declaration (see paragraph 102 above). The first applicant witnessed the argument between the doctor and the second applicant, the doctor accusing the second applicant that she was a bad mother. 164. The Court has already found that information about the case was relayed by the press, also as a result of the press release issued by the hospital. The first applicant received numerous unwanted and intrusive text messages from people she did not know. In the hospital in Warsaw the authorities failed to protect her from being contacted by various persons who tried to exert pressure on her. The applicant was harassed. The authorities not only failed to provide protection to her, having regard to her young age and vulnerability, but further compounded the situation. The Court notes, in particular, that after the first applicant requested protection from the police when she was accosted by anti-abortion activists after leaving hospital in Warsaw, protection was in fact denied her. She was instead arrested in the execution of the court’s decision on her placement in the juvenile centre. 165. The Court has been particularly struck by the fact that the authorities decided to institute criminal investigation on charges of unlawful intercourse against the first applicant who, according to the prosecutor’s certificate and the forensic findings referred to above should have been considered to be a victim of sexual abuse. The Court considers that this approach fell short of the requirements inherent in the States’ positive obligations to establish and apply effectively a criminal ‑ law system punishing all forms of sexual abuse (see, M.C. v. Bulgaria, no. 39272/98, § 184, ECHR 2003 ‑ XII). The investigation against the applicant was ultimately discontinued, but the mere fact that they were instituted and conducted shows a profound lack of understanding of her predicament. 166. On the whole, the Court considers that no proper regard was had to the first applicant’s vulnerability and young age and her own views and feelings. 167. In the examination of the present complaint it is necessary for the Court to assess the first applicant’s situation as a whole, having regard in particular to the cumulative effects of the circumstances on the applicant’s situation. In this connection, it must be borne in mind that the Court has already found, having examined the complaint under Article 8 of the Convention about the determination of the first applicant’s access to abortion, that the approach of the authorities was marred by procrastination, confusion and lack of proper and objective counselling and information (see § 108 above). Likewise, the fact that the first applicant was separated from her mother and deprived of liberty in breach of the requirements of Article 5 § 1 of the Convention must be taken into consideration. 168. The Court concludes, having regard to the circumstances of the case seen as a whole, that the first applicant was treated by the authorities in a deplorable manner and that her suffering reached the minimum threshold of severity under Article 3 of the Convention. 169. The Court concludes that there has therefore been a breach of that provision. VI. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 170. The Court notes at the outset that the applicants also made various other complaints under several Articles of the Convention. 171. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Accordingly, this part of the application must be rejected as inadmissible pursuant to Article 35 §§ 3 (a) and 4 of the Convention. VII. APPLICATION OF ARTICLE 41 OF THE CONVENTION 172. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 173. The first applicant requested the Court to award her just satisfaction in the amount of 60,000 euros (EUR) in respect of non ‑ pecuniary damage. She submitted that the impact on the events concerned in the case had been extremely severe on her. She had been the object of comments expressed in public, in the media and directly to her. A book on the case by an anti-choice activist had been published, describing the events in a malicious and distorted manner. Her true identity and details of her private life had leaked to the media. She had suffered because her mother who had tried to protect and help her, was vilified in public. She had also been deprived of liberty. Her suffering during the summer of 2008 when the main events took place was intense, but she also suffered later when, for example, her teachers had made inappropriate comments and disclosed to her classmates what had happened to her. 174. The second applicant requested the Court to award her just satisfaction in the amount of EUR 40,000. She argued that she had suffered immense stress and anxiety caused by the treatment to which her daughter was subjected. She herself had fallen victim of hostility and hateful comments on the part of the hospital staff, anti ‑ choice activists, the police, the general public and certain media. As the story leaked to the media and their identity had been disclosed, she had been unable to protect her child. Her own identity had been disclosed as well. She had to appear before the courts several times and was subjected to humiliating interrogations. 175. The Government did not comment. 176. The Court, having regard to the applicants’ submissions, is of the view that in the circumstances of the case they must have experienced considerable anguish and suffering, not only in respect of the difficulties which arose in the determination of access to a lawful abortion, in so far as the 1993 Act allowed it, but also because of the unlawful disclosure of information about their case to the public and the unwelcome publicity it caused. The Court, having regard to the circumstances of the case seen as a whole, to the differences in the applicants’ situations and deciding on equitable basis, awards EUR 30,000 to the first and EUR 15,000 to the second applicant. B. Costs and expenses 177. The applicants claimed reimbursement of costs and expenses incurred in the domestic proceedings as well as in the proceedings before the Court itself, in the total amount of EUR 26 445,10. They referred to invoices which they had submitted. 178. Ms Gąsiorowska and Ms Kotiuk claimed EUR 16,445, comprising EUR 13,370 in fees plus VAT of 22 per cent) in respect of legal fees for work which they had carried out in the domestic proceedings and representing the applicants before the Court. The legal fees corresponded to 191 hours spent in preparation of the applicants’ case for the purposes of representation before the domestic courts and the case before the Court, at an hourly rate of EUR 70. The time spent on the case included 50 hours of advising the applicants, helping them to respond to various letters and in helping them in filing appeals and motions, 5 hours of representing the applicants before the Lublin courts, 10 hours of representing them before the Warsaw courts, 25 hours of drafting criminal motions and appeals, two working days of meetings with the applicants, 15 hours consulting with assisting counsel and 20 hours spent in preparation of a response to the Court’s questions. 179. Furthermore, the lawyers assisting the Polish lawyers on behalf of the Centre for Reproductive Rights, Ms Zampas and later Ms Westeson, claimed EUR 10,000 in respect of legal fees, corresponding to 100 hours at a hourly rate of EUR 100. They listed the following items: 70 hours spent in preparation of the case, 10 hours spent in communicating with Polish lawyers and 20 hours spent in drafting a response to the Court’s questions. 180. The Court reiterates that only legal costs and expenses found to have been actually and necessarily incurred and which are reasonable as to quantum are recoverable under Article 41 of the Convention (see, among other authorities, Nikolova v. Bulgaria [GC], no. 31195/96, 25 March 1999, § 79, and Smith and Grady v. the United Kingdom (just satisfaction), nos. 33985/96 and 33986/96, § 28, ECHR 2000 ‑ IX). 181. In the light of the documents submitted, the Court is satisfied that the legal costs concerned in the present case have actually been incurred. 182. The Court, deciding on an equitable basis and having regard to the details of the claims submitted, awards the applicants a global sum of EUR 16,000 in respect of fees and expenses, plus any tax on that amount that may be chargeable to the applicants. C. Default interest 183. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention. It found in particular that the applicants had been given misleading and contradictory information and had not received objective medical counselling; and, the fact that access to abortion was a subject of heated debate in Poland did not absolve the medical staff from their professional obligations regarding medical secrecy. |
628 | Doctors and health workers | II. RELEVANT DOMESTIC LAW A. The Constitution of the Republic of Poland 14. The Constitution of 2 April 1997 entered into force on 17 October 1997. Article 54 § 1 of the Constitution guarantees freedom of expression. It states, in so far as relevant: “Everyone shall be guaranteed freedom to express opinions and to acquire and to disseminate information.” 15. A right to lodge a constitutional complaint was introduced in Article 79 § 1 which provides as follows : “ In accordance with principles specified by statute, everyone whose constitutional freedoms or rights have been infringed shall have the right to appeal to the Constitutional Court for its judgment on the conformity to the Constitution of a statute or another normative act upon which basis a court or organ of public administration has made a final decision on his freedoms or rights or on his obligations specified in the Constitution .” B. Code of Medical Ethics 16. Article 10 of the Polish Code of Medical Ethics, set out in Chapter I, entitled “Relations between a physician and his patient” ( Postępowanie lekarza wobec pacjenta ) reads, in so far as relevant: “1. A physician should not exceed the limits of his or her professional competence when carrying out diagnosis, prophylaxis and treatment ... ” 17. Article 52 of Chapter III, entitled “ Mutual relations between physicians” ( Stosunki wzajemne między lekarzami ) provides as follows: “1. Physicians must show respect to each other. 2. A physician should not express an unfavourable opinion on the professional conduct of another physician or discredit him in any other way in the presence of a patient, his or her environment or [in the presence of] assisting staff. 3. All comments on the observed erroneous conduct of a physician should, in the first place, be passed on to him or her. Informing a medical court of the observed unethical behaviour or professional incompetence of another physician does not undermine the principle of professional solidarity. ” 18. On 20 September 2003 Article 52 § 2 was amended. It reads as follows: “A physician should display particular caution in formulating opinions on the professional conduct of another doctor and in particular he should not in any way discredit him publicly.” C. Law on Medical Chambers 19. According to section 1 of the Law of 17 May 1989 on Medical Chambers ( Ustawa o Izbach Lekarskich ), as it stood at the material time, the administrative units of medical self-government were the Supreme Medical Chamber ( Naczelna Izba Lekarska ) and regional medical chambers ( okręgowe izby lekarskie ). Section 19 provided that a regional medical chamber includes all physicians whose names are entered on its register. 20. Bodies of a regional medical chamber included, among others, a regional medical court ( okręgowy sąd lekarski ) and a regional attorney for professional liability (section 20). The Supreme Medical Court ( Naczelny Sąd Lekarski ) was a body of the Supreme Medical Chamber ( section 31). According to section 7, the term of office of all bodies of medical chambers was four years. 21. Section 41 of the Law, in Chapter 6, entitled “Professional Liability” ( Odpowiedzialność zawodowa ), provided : “Members of the medical self-government shall be professionally liable before medical courts for any conduct in breach of the principles of professional ethics and deontology and for any breach of the provisions governing the exercise of the medical profession. ” Section 42 read, in so far as relevant: “ 1. The medical court may impose the following penalties: 1) censure ( upomnienie ), 2) reprimand ( nagana ), 3) suspension from practice ( zawieszenie prawa do wykonywania zawodu ) for a period from six months to three years, 4) revocation of the right to practise medicine ( pozbawienie prawa wykonywania zawodu ). 2. A physician, on whom the Supreme Medical Court sitting at second instance has imposed any penalty referred to in subsections (3) or (4), has the right to lodge an appeal with the Supreme Court within 14 days from the date on which the [ court ’ s] decision has been served on him or her ... ” 22. According to section 46, matters of professional liability of medical practitioners were examined by regional medical courts and the Supreme Medical Court. 23. A physician on whom a reprimand or suspension from practice had been imposed lost eligibility for election to bodies of medical chambers until a notice of penalty was removed from the relevant register (section 47). The notice was removed from the register three years after the decision to impose a censure or reprimand became final (section 55). 24. According to section 54 the members of the Medical Courts were, in their adjudicating capacity, independent and should follow the law and the Code of Medical Ethics. Article 7 provided that the term of office of all bodies of the medical chambers was four years. As provided in section 56, the Supreme Medical Court, sitting as a second - instance court, included a judge of the Supreme Court appointed by the First President of the Supreme Court. D. The Constitutional Court ’ s judgment of 23 April 2008 25. On 23 April 2008 the Constitutional Court delivered a judgment (SK16/07) in which it found that Article 52 § 2 of the Code of Medical Ethics was unconstitutional in so far as it prohibited the truthful public assessment of the activity of a doctor by another doctor in the public interest. The relevant provision, examined in its new wording which came into force in 2003, was not quashed by the Constitutional Court as only its particular interpretation was considered to breach the constitutional norm securing the freedom of expression. THE LAW I. THE GOVERNMENT ’ S PRELIMINARY OBJECTIONS 26. The Government argued that the applicant had failed to exhaust all the remedies available under Polish law as required by Article 35 § 1 of the Convention. They noted that the applicant had not lodged a constitutional complaint against the relevant provisions of the 198 9 Law on Medical Chambers. As regards the applicant ’ s complaint raised under Article 6 § 1 of the Convention, the Government considered that the Constitutional Court would have been competent to examine whether the proceedings before the Medical Courts met the requirements of impartiality and independence. They submitted that a similar complaint concerning disciplinary proceedings for members of the Bar Association had been lodged with the Constitutional Court. However the Government failed to inform the Court about the outcome of these proceedings. With regard to the applicant ’ s complaint that his right to freedom of expression had been violated, the Government submitted that on 23 April 2008 the Constitutional Court had delivered a judgment finding that the provisions of the Code of Medical Ethics, which had been the basis for the applicant ’ s conviction, had been unconstitutional. In the Government ’ s opinion it proved that lodging a constitutional complaint with the Constitutional Court would have been an effective remedy in the applicant ’ s case. The Government also submitted that it had been open to the applicant to bring an action under Article 23 of the Civil Code to seek to establish that the proceedings against him had breached his personal rights protected by the Civil Code, and to seek damages. 27. The applicant contested the Government ’ s arguments, maintaining that he had appealed against the domestic decisions in accordance with the law. In particular, he submitted that the remedies proposed by the Government were of a theoretical nature and not practical and effective. The constitutional complaint was an extraordinary remedy and he should not have been obliged to exhaust it. Moreover, he maintained that if any additional remedy had been open to him, he should have been informed of this when the authorities gave the final domestic decision. Finally, as regards the possibility of his lodging a civil action, the applicant argued that he would have been required to prove that he had sustained damage by the unlawful action of an official, while the decisions given in his case had a legal basis in the domestic law. 28. The Court reiterates that Article 35 of the Convention, which sets out the rule on exhaustion of domestic remedies, provides for a distribution of the burden of proof. It is incumbent on the Government claiming non ‑ exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant ’ s complaints and offered reasonable prospects of success (see Selmouni v. France [GC], no. 25803/94, § 76, ECHR 1999-V, and Mifsud v. France (dec.), no. 57220/00, § 15, ECHR 2002-VIII). 29. The Court notes that the Government ’ s objection that the applicant had failed to exhaust domestic remedies since he should have lodged civil proceedings for compensation for breach of his personal rights is confined to a mere assertion and there are no further arguments or domestic court decisions indicating that recourse to such an action in the circumstances of the applicant ’ s case would have offered any reasonable prospects of success. As far as the Government ’ s objection refers to the effectiveness of the constitutional complaint with respect to the applicant ’ s allegations under Article 6 § 1 of the Convention, the Court notes that the Government relied on a press article about a constitutional complaint lodged in 2005 by members of the Bar Association. The Government failed to provide any additional information about this complaint or a relevant decision of the Constitutional Court. 30. As regards the Constitutional Court ’ s judgment of 23 April 2008, the Court notes that it was delivered almost ten years after the proceedings in the present case ended. Any relevance that these proceedings might possibly have in respect of the present case is therefore reduced by the fact that it took place so long after the relevant time (see, for example, V. v. the United Kingdom [GC], no. 24888/94, § 57, ECHR 1999 ‑ IX). Moreover, the Constitutional Court examined the constitutionality of Article 52 § 2 of the Code of Medical Ethics in its wording as amended in 2003 and not as it stood at the material time. The Court also observes that the applicant was found guilty, in addition to Article 52 § 2, of a breach of Article 10 of the Code of Medical Ethics, the constitutionality of which was not examined by the Constitutional Court. 31. Furthermore, the Court observes that at the material time, in May 1998, the right to lodge an individual constitutional complaint was a new instrument introduced by the 1997 Constitution, in force since October 1997. At this early stage of its evolution there had been no case law of the Constitutional Court demonstrating the effectiveness of the individual complaint. Thus the Court considers that, in the particular circumstances of the present the case, the applicant did everything that could reasonably be expected of him to exhaust the national channels of redress (see Aksoy v. Turkey, 18 December 1996, § 54, Reports of Judgments and Decisions 1996-VI; Hansen v. Turkey, (dec) no. 36141/97, 19 June 2001). 32. It follows that the Government ’ s plea of inadmissibility on the ground of non-exhaustion of domestic remedies must be dismissed. II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 33. The applicant complained about a breach of Article 10 of the Convention, which reads as follows: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” A. Admissibility 34. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds (see paragraph 3 2 above). It must therefore be declared admissible. B. Merits 1. The parties ’ submissions 35. The applicant submitted in a general manner that, as a doctor, he should have had a right to state his opinion on the treatment received by his patient from another doctor. He argued that the medical court ’ s decisions showed the hostile attitude of the medical authorities towards his community work, as he had been active in an association. The applicant also maintained that the reprimand by the Medical Court was an element of persecution by the medical authorities and was caused by the fact that he had been the President of the Association for the Protection of the Rights of Patients in Poland and had been fighting for the interests of patients. The applicant argued that the reprimand ordered by the Medical Court was a harsh penalty as he had been prevented from applying for and taking up management functions in hospitals and public administration. He submitted that he had been the victim of a campaign launched against him by the medical society. As a result, he could not take a post of director in the Ministry of Health, had difficulties in finding a job, had to close down his private practice and was prevented from taking up an additional specialisation. 36. The Government submitted that there had been no interference with the applicant ’ s right to freedom of expression. They maintained that the applicant had discredited another doctor before the patient and that he had prepared a critical opinion on the patient ’ s medical treatment without having adequate medical specialisation and expertise. The Government reiterated that the applicant had been giving critical opinions on other doctors within his commercial activity, and thus the disciplinary courts had been right to punish him and thus prevent him from abusing the rights of other doctors any further. The Government maintained that the provision of Article 52 of the Code of Medical Ethics was aimed at maintaining good relations between doctors and preserving the principle of professional solidarity. While the Code of Medical Ethics does not prevent doctors from making critical statements on other practitioners, certain rules should be observed, for example a doctor should not discredit another colleague in the presence of the patient. The Government also maintained that the applicant did not have sufficient knowledge to comment on treatment relating to a field of medicine in which he had not practised. In consequence, the Medical Court had correctly imposed a reprimand on the applicant and thus prevented him from infringing ethical rules and rules regarding competition. 37. The penalty imposed on the applicant was necessary for the protection of other doctors ’ rights and reputation and was the most lenient possible. In sum, the interference was necessary to achieve a balance between the protection of patients ’ health, the interests of other medical practitioners and the applicant ’ s right to freedom of expression. The Government submitted that there had been no violation of Article 10 of the Convention. 2. The Court ’ s assessment (a) The general principles 38. The Court reiterates that freedom of expression, as secured in paragraph 1 of Article 10, constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual ’ s self-fulfilment. Subject to paragraph 2, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society” (see, among many other authorities, Oberschlick v. Austria (no. 1), 23 May 1991, § 57, Series A no. 204, and Nilsen and Johnsen v. Norway [GC], no. 23118/93, § 43, ECHR 1999 ‑ VIII ). 39. The Court would also point out that Article 10 guarantees freedom of expression to “everyone”. The Court has held on many occasions that Article 10 applies to all kinds of information or ideas or forms of expression including when the type of aim pursued is profit-making or relates to a commercial activity of an applicant (see Casado Coca v. Spain, 24 February 1994, § 35, Series A no. 285 ‑ A, Barthold v. Germany, 25 March 1985, § 42, Series A no. 90 and Stambuk v. Germany, no. 37928/97, §§ 43-5 2, 17 October 2002). 40. In exercising its supervisory jurisdiction, the Court must look at the impugned interference in the light of the case as a whole, including the content of the publication held against the applicant and the general context of the publication. In particular, it must determine whether the interference in question was “proportionate to the legitimate aims pursued” and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient” (see Sunday Times (no. 1) v. the United Kingdom, 26 April 1979, § 62, Series A no. 30 ). In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they based themselves on an acceptable assessment of the relevant facts. 41. Under the Court ’ s case-law, the States parties to the Convention have a certain margin of appreciation in assessing the necessity of an interference, but this margin is subject to European supervision as regards both the relevant rules and the decisions applying them (see, inter alia, markt intern Verlag GmbH and Klaus Beermann v. Germany, 20 November 1989, § 33, Series A no. 165 and Casado Coca, cited above, § 50). ( b ) The application of the general principles to the above case 42. The Court must first determine whether the impugned conviction amounted to an “interference” with the exercise of the applicant ’ s right to freedom of expression. It notes that the Government submitted that there had been no interference with the applicant ’ s rights as the opinion in question had been made in the context of his commercial activity. 43. The Court observes that a disciplinary sanction had been imposed on the applicant for having prepared an opinion on the treatment received by a patient which was critical of another doctor. He had been sanctioned by the Medical Court for having breached the Code of Ethics and reprimanded. The Court points out that notice of the sanction remained in the applicant ’ s file for 3 years and that it was not claimed by the parties that the penalty did not constitute a detriment to the applicant. 44. The Court reiterates that, contrary to the Government ’ s opinion, matters relating to professional practice are not removed from the protection of Article 10 of the Convention ( see paragraph 39 above ). The Court thus considers that the applicant ’ s conviction and disciplinary sanction for having expressed a critical opinion on medical treatment received by a patient amounted to an interference with his right to freedom of expression. 45. Such interference infringes the Convention if it does not satisfy the requirements of paragraph 2 of Article 10. It must therefore be determined whether it was “prescribed by law”, whether it pursued one or more of the legitimate aims set out in that paragraph and whether it was “necessary in a democratic society” to achieve such aims. 46. The Court finds, and this was not disputed, that the interference was “prescribed by law,” the applicant ’ s disciplinary sanction having been based on Articles 52 § 2 and 10 of the Code of Medical Ethics (see paragraph 10 above). The Court agrees with the Government that the interference with the applicant ’ s right to freedom of expression was intended to pursue a legitimate aim referred to in Article 10 § 2 of the Convention, namely to protect the rights and reputation of others. 47. The Court will then examine whether the interference with the applicant ’ s right to freedom of expression was necessary in a democratic society. The Court recalls that the applicant, a medical practitioner, wrote an opinion in which he criticised medical treatment received by a patient. The disciplinary authorities considered the applicant guilty of unethical conduct in breach of the principle of professional solidarity, in violation of the Code of Medical Ethics. 48. The applicant based his report on the patient ’ s medical file, and on the results of some additional medical examinations which the patient had undergone at his suggestion. The opinion was requested by the patient himself who turned to the applicant ’ s company, which specialised in preparing assessments of medical treatment undertaken by patients. The opinion was then handed to the patient, who could use it for whatever purpose he intended. However there is no indication that it was subsequently published or otherwise made known to a wider public. 49. The Court has previously agreed, in the context of lawyers, members of the Bar, that the special nature of the profession practised by an applicant must be considered in assessing whether the restriction on the applicant ’ s right answered any pressing need (see Steur v. the Netherlands, no. 39657/98, § 38, ECHR 2003 ‑ XI ). Medical practitioners also enjoy a special relationship with patients based on trust, confidentiality and confidence that the former will use all available knowledge and means for ensuring the well - being of the latter. That can imply a need to preserve solidarity among members of the profession. On the other hand, the Court considers that a patient has a right to consult another doctor in order to obtain a second opinon about the treatment he has received and to expect a fair and objective evaluation of his doctor ’ s actions. 50. The fact that the opinion in question was issued within the framework of the applicant ’ s commercial activity, and was critical of another doctor, does not automatically deprive it of genuineness or objectivity. The Court observes that the domestic authorities, in finding that the applicant had discredited another doctor, did not make any serious assessment of the truthfulness of the statements included in the opinion (see Veraart v. the Netherlands, no. 10807/04, §§ 60 and 61, 30 November 2006). The Regional Medical Court found that, since no criticism of another doctor was permissible, the question of whether the applicant ’ s report actually reflected reality had been without importance. 51. Such a strict interpretation by the disciplinary courts of the domestic law as to ban any critical expression in the medical profession is not consonant with the right to freedom of expression (see Stambuk, cited above, § 50). This approach to the matter of expressing a critical opinion of a colleague, even in the context of the medical profession, risks discouraging medical practitioners from providing their patients with an objective view of their state of health and treatment received, which in turn could jeopardise the ultimate goal of the doctor ’ s profession - that is to protect the health and life of patients. 52. Finally the Court notes that the domestic authorities did not examine whether the applicant had been defending a socially justified interest. The Court considers that the applicant ’ s opinion was not a gratuitous personal attack on another doctor, but a critical assessment, from a medical point of view, of treatment received by his patient from another doctor. Thus, it concerned issues of public interest. 53. In conclusion the interference complained of was not proportionate to the legitimate aim pursued and, accordingly, was not “necessary in a democratic society” “for the protection of the rights of others”. Consequently, it gave rise to a violation of Article 10 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 54. The applicant complained that the Medical Courts which decided in the proceedings against him cannot be considered “an independent and impartial tribunal” as provided in Article 6 § 1 of the Convention, which reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.” 55. The Government contested that argument. A. Applicability of Article 6 of the Convention 56. As a preliminary issue, the Court has to determine whether Article 6 of the Convention is applicable to the proceedings in issue. It is clear from the Court ’ s case-law that where, as in the instant case, what is at stake is the right to continue to practise medicine as a private practitioner, disciplinary proceedings give rise to “ contestations (disputes) over civil rights” within the meaning of Article 6 § 1 (see, among other authorities, König v. Germany, 28 June 1978, §§ 87–95, Series A no. 27; Le Compte, Van Leuven and De Meyere v. Belgium, 23 June 1981, §§ 41 ‑ 51, Series A no. 43; Albert and Le Compte v. Belgium, 10 February 1983, §§ 25–29, Series A no. 58 and Gautrin and Others v. France, 20 May 1998, § 33, Reports 1998 ‑ III, Gubler v. France, no. 69742/01, § 24, 27 July 2006 ). Moreover, the parties did not dispute before the Court that Article 6 § 1 is applicable to the circumstances of this case. The Court thus finds that this Article, under its civil head, is applicable to the present case. B. Admissibility 57. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds (see paragraph 33 above). It must therefore be declared admissible. C. Merits 1. The parties ’ submissions 58. The applicant submitted that there had been a violation of Article 6 § 1 of the Convention in that he had been deprived of the right to a fair trial by an impartial tribunal. He submitted that the judges sitting in the Regional and Supreme Medical Courts had not been independent, as those bodies had been composed of doctors, members of the Regional Medical Council, and thus represented the interests of the doctors ’ lobby. Only one of the five members of the Supreme Medical Court was a professional judge, delegated from the Supreme Court. However, such a judge would often follow the conclusions of the majority. Moreover, the applicant ’ s case had not been heard at the later stage by an impartial tribunal as the domestic law did not provide for a right to appeal to a court against the decision of the Medical Court when it had imposed a penalty taking the form of a reprimand. 59. The Government submitted that the proceedings in the applicant ’ s case had been conducted fairly and that the applicant had enjoyed all procedural guarantees under Article 6 § 1 of the Convention. The applicant had been represented and his case heard at two instances before Medical Courts which had been independent and impartial. As regards the personal impartiality of the members of the Medical Courts, the Government argued that they had been impartial and that there was no proof to the contrary. Although the applicant had attempted to challenge the members of the Medical Court, this challenge had not included any specific complaint or evidence pointing to a lack of impartiality; it had thus been dismissed as manifestly ill-founded. The Government, referring to the Albert and Le Compte case (cited above), submitted that it had been necessary for the members of the Medical Courts to have expertise in medicine. They had been independent in exercising their functions and had followed the law and the Code of Ethics. Moreover, one judge sitting in the Supreme Medical Court had been appointed by the Supreme Court. The Government concluded that there had been no violation of Article 6 § 1 of the Convention. 2. The Court ’ s assessment 60. The Court reiterates that, even in instances where Article 6 § 1 of the Convention is applicable, conferring the duty of adjudicating on disciplinary offences on professional disciplinary bodies does not in itself infringe the Convention. Nonetheless, in such circumstances the Convention calls for at least one of the following two systems: either the professional disciplinary bodies themselves comply with the requirements of that Article, or they do not so comply but are subject to subsequent review by a judicial body which has full jurisdiction and does provide the guarantees of Article 6 § 1 (see Albert and Le Compte cited above, § 29, and Gautrin, cited above, § 57 ). 61. The applicant maintained that the Regional and Supreme Medical Courts, which decided his case, lacked independence and impartiality. 62. There are two tests for assessing whether a tribunal is impartial within the meaning of Article 6 § 1: the first consists in seeking to determine the personal conviction of a particular judge in a given case and the second in ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect (see, among other authorities, mutatis mutandis, Saraiva de Carvalho v. Portugal, 22 April 1994, § 33, Series A no. 286-B and Kyprianou v. Cyprus [GC], no. 73797/01, § 118, ECHR 2005 ‑ XIII and, a contrario, Brudnicka and Others v. Poland, no. 54723/00, § 41, ECHR 2005 ‑ II ). 63. As regards the subjective approach, the Court reiterates that the personal impartiality of each member must be presumed until there is proof to the contrary. In the present case the applicant exercised his right to challenge the impartiality of the judges composing the Regional Medical Court on the ground that they might be subject to pressure from the Tarnów Governor (see paragraph 11 above). The Government maintained that the challenge had not been specified or substantiated. The Court considers that the substance of his challenge was that the disciplinary courts, being composed of medical practitioners and not professional judges, might be under pressure from their hierarchical superiors or local government. However, the applicant failed to provide any prima facie evidence that the Tarnów Governor had put, or attempted to put, pressure on the members of the Medical Court. Moreover, there is no indication of any personal prejudice or bias on the part of the members of the disciplinary courts and indeed the applicant does not suggest this. As regards the manner in which the challenges to the three members of the Regional Medical Court were examined, the Court observes that they were dealt with by the court sitting in a different composition (see in this connection Debled v. Belgium, 22 September 1994, § 37, Series A no. 292 ‑ B). The dismissal of the applicant ’ s challenge to particular members of the court and the refusal to transfer the case to another region were adverted to by the applicant in his appeal. However, the Supreme Medical Court dismissed the appeal, considering as unfounded the allegation that the members of the Regional Court had been put under pressure when dealing with the applicant ’ s case. 64. As to the issue of objective and structural impartiality, the Court observes that the members of the Medical Courts were elected from among medical practitioners for a period of four years and they acted not as representatives of medical self-government but in their personal capacity. Moreover, in the composition of the Supreme Medical Court there was one professional judge appointed by the Supreme Court (see paragraph 25 above). As for the impartiality of the members from an objective and organisational point of view, the applicant did not raise any additional, specific, complaints in this respect. In any event, there were sufficient safeguards to exclude any legitimate doubt about the Medical Courts impartiality (see, a contrario, Kyprianou, cited above, § § 127 and 128 ). 65. The Court is also satisfied, and it has not been disputed by the parties, that both bodies were established by law, that is, the 1989 Law on Medical Chambers (see paragraph 20 above). 66. The Court finally notes that, at the material time, the decisions of the Medical Courts, if their consequence was suspension from practice and revocation of the right to practise, were open to appeal to the Supreme Court - which offered an additional safeguard as regards the requirements of Article 6 § 1 of the Convention. 67. Regard being had to all the circumstances examined above, the Court considers that the applicant ’ s doubts about the independence and impartiality of the members of the Medical Courts that reprimanded him for having breached the Code of Medical Ethics have not been sufficiently substantiated (see Gubler v. France, no. 69742/01, § 30, 27 July 2006 ). Thus, there has been no violation of Article 6 § 1 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 68. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 69. The applicant claimed 316,000 Polish zlotys (PLN) in respect of pecuniary damage. This sum covered loss of wages for the period of nine years during which he had difficulties practising medicine given the reprimand by the medical court and the hostility of the medical authorities towards him. 70. As to non-pecuniary damage, the applicant claimed PLN 10,000 by way of symbolic compensation for suffering endured by him and his family. 71. The Government submitted that the applicant ’ s claim in relation to pecuniary damage, with respect to the loss of hypothetical income, did not have a causal link with the alleged violations of the Convention. With regard to non-pecuniary damage, the Government argued that the sum claimed by the applicant was excessive. They invited the Court to rule that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant. 72. With regard to pecuniary damage the Court finds that there is no causal link between the damage claimed and the violation found. It therefore dismisses this claim. The Court considers, however, that the applicant must have sustained non-pecuniary damage and that sufficient just satisfaction would not be provided solely by a finding of a violation of the Convention. It awards the applicant EUR 3,0 00 under this head. B. Costs and expenses 73. The applicant did not claim reimbursement of any costs and expenses. C. Default interest 74. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 10 (freedom of expression) of the Convention, finding that the interference with the applicant’s freedom of expression had not been proportionate to the legitimate aim pursued, namely protecting the reputation of others. It observed in particular that, in the applicant’s case, the Polish authorities had concluded, without having attempted to verify the truthfulness of the findings in the medical opinion, that the applicant had discredited another doctor. That decision was made on the basis of the absolute prohibition in Poland on any criticism between doctors. The Court considered that that absolute prohibition was likely to discourage doctors from providing their patients with an objective opinion on their health and any treatment received, which could compromise the very purpose of the medical profession, namely to protect the health and life of patients. |
691 | Incitement to religious intolerance | II. RELEVANT DOMESTIC LAW AND PRACTICE 17. The third and fourth paragraphs of Article 175 of the Criminal Code provide: “It shall be an offence punishable by six months to one year's imprisonment and a fine of 5,000 to 25,000 Turkish liras to blaspheme against God, one of the religions, one of the prophets, one of the sects or one of the holy books ... or to vilify or insult another on account of his religious beliefs or fulfilment of religious duties ... The penalty for the offence set out in the third paragraph of this Article shall be doubled where it has been committed by means of a publication.” 18. Section 16(4) of the Press Act (Law no. 5680) provides: “With regard to offences committed through the medium of publications other than periodicals, criminal responsibility shall be incurred by the author [or] translator ... of the publication which constitutes the offence, and by the publisher. ...” THE LAW ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 19. The applicant alleged that his criminal conviction had infringed his right to freedom of expression. He relied on Article 10 of the Convention, the relevant parts of which provide: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ... 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society ... for the prevention of disorder or crime, for the protection of ... morals, [and] for the protection of the reputation or rights of others ...” 20. The Government submitted that the applicant's conviction had met a pressing social need in that the book in issue had contained an abusive attack on religion, in particular Islam, and had offended and insulted religious feelings. They argued in that connection that the criticism of Islam in the book had fallen short of the level of responsibility to be expected of criticism in a country where the majority of the population were Muslim. 21. The Court observes that the book in question conveyed the author's views on philosophical and theological issues in a novelistic style. It notes that the domestic courts found that the book contained expressions intended to blaspheme against and vilify religion. 22. The Court notes that it was common ground between the parties that the applicant's conviction constituted interference with his right to freedom of expression under Article 10 § 1. Furthermore, it was not disputed that the interference was prescribed by law and pursued the legitimate aims of preventing disorder and protecting morals and the rights of others, within the meaning of Article 10 § 2. The Court endorses that assessment. The dispute in the instant case relates to the question whether the interference was “necessary in a democratic society”. 23. The Court reiterates the fundamental principles underlying its judgments relating to Article 10 as set out, for example, in Handyside v. the United Kingdom (judgment of 7 December 1976, Series A no. 24), and in Fressoz and Roire v. France ([GC], no. 29183/95, § 45, ECHR 1999-I). Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual's self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. 24. As paragraph 2 of Article 10 recognises, the exercise of that freedom carries with it duties and responsibilities. Among them, in the context of religious beliefs, may legitimately be included a duty to avoid expressions that are gratuitously offensive to others and profane (see, for example, Otto-Preminger-Institut v. Austria, judgment of 20 September 1994, Series A no. 295-A, pp. 18-19, § 49, and Murphy v. Ireland, no. 44179/98, § 67, ECHR 2003 ‑ IX). This being so, as a matter of principle it may be considered necessary to punish improper attacks on objects of religious veneration (ibid.). 25. In examining whether restrictions to the rights and freedoms guaranteed by the Convention can be considered “necessary in a democratic society”, the Court has frequently held that the Contracting States enjoy a certain but not unlimited margin of appreciation (see Wingrove v. the United Kingdom, judgment of 25 November 1996, Reports of Judgments and Decisions 1996-V, p. 1956, § 53). The fact that there is no uniform European conception of the requirements of the protection of the rights of others in relation to attacks on their religious convictions means that the Contracting States have a wider margin of appreciation when regulating freedom of expression in connection with matters liable to offend intimate personal convictions within the sphere of morals or religion (see Otto- Preminger-Institut, cited above, p. 19, § 50; Wingrove, cited above, pp. 1957-58, § 58; and Murphy, cited above, § 67). 26. A State may therefore legitimately consider it necessary to take measures aimed at repressing certain forms of conduct, including the imparting of information and ideas, judged incompatible with respect for the freedom of thought, conscience and religion of others (see, in the context of Article 9, Kokkinakis v. Greece, judgment of 25 May 1993, Series A no. 260-A, and Otto- Preminger-Institut, cited above, pp. 17-18, § 47). It is, however, for the Court to give a final ruling on the restriction's compatibility with the Convention and it will do so by assessing in the circumstances of a particular case, inter alia, whether the interference corresponded to a “pressing social need” and whether it was “proportionate to the legitimate aim pursued” (see Wingrove, cited above, p. 1956, § 53, and Murphy, cited above, § 68). 27. The issue before the Court therefore involves weighing up the conflicting interests of the exercise of two fundamental freedoms, namely the right of the applicant to impart to the public his views on religious doctrine on the one hand and the right of others to respect for their freedom of thought, conscience and religion on the other hand (see Otto-Preminger-Institut, cited above, p. 20, § 55). 28. Pluralism, tolerance and broadmindedness are hallmarks of a “democratic society” (see Handyside, cited above, p. 23, § 49). Those who choose to exercise the freedom to manifest their religion, irrespective of whether they do so as members of a religious majority or a minority, cannot reasonably expect to be exempt from all criticism. They must tolerate and accept the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith (see Otto-Preminger-Institut, cited above, pp. 17-18, § 47). 29. However, the present case concerns not only comments that offend or shock, or a “provocative” opinion, but also an abusive attack on the Prophet of Islam. Notwithstanding the fact that there is a certain tolerance of criticism of religious doctrine within Turkish society, which is deeply attached to the principle of secularity, believers may legitimately feel themselves to be the object of unwarranted and offensive attacks through the following passages: “Some of these words were, moreover, inspired in a surge of exultation, in Aisha's arms. ... God's messenger broke his fast through sexual intercourse, after dinner and before prayer. Muhammad did not forbid sexual intercourse with a dead person or a live animal.” 30. The Court therefore considers that the measure taken in respect of the statements in issue was intended to provide protection against offensive attacks on matters regarded as sacred by Muslims. In that respect it finds that the measure may reasonably be held to have met a “pressing social need”. 31. The Court concludes that the authorities cannot be said to have overstepped their margin of appreciation in that respect and that the reasons given by the domestic courts to justify taking such a measure against the applicant were relevant and sufficient. 32. As to the proportionality of the impugned measure, the Court is mindful of the fact that the domestic courts did not decide to seize the book, and accordingly considers that the insignificant fine imposed was proportionate to the aims pursued. There has therefore been no violation of Article 10 of the Convention. | The Court held that there had been no violation of Article 10 (freedom of expression) of the Convention. It reiterated, in particular, that those who chose to exercise the freedom to manifest their religion, irrespective of whether they did so as members of a religious majority or a minority, could not reasonably expect to be exempt from all criticism. They had to tolerate and accept the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith. However, the present case concerned not only comments that were disturbing or shocking or a “provocative” opinion but an abusive attack on the Prophet of Islam. Notwithstanding the fact that there was a certain tolerance of criticism of religious doctrine within Turkish society, which was deeply attached to the principle of secularity, believers could legitimately feel that certain passages of the book in question constituted an unwarranted and offensive attack on them. In those circumstances, the Court considered that the measure in question had been intended to provide protection against offensive attacks on matters regarded as sacred by Muslims and had therefore met a “pressing social need”. It also took into account the fact that the Turkish courts had not decided to seize the book in question, and consequently held that the insignificant fine imposed had been proportionate to the aims pursued by the measure in question. |
588 | Expulsion or extradition cases | II. RELEVANT DOMESTIC LAW 19. The Aliens Act formerly provided in so far as relevant: Section 22 “An alien who has lawfully lived in Denmark for more than the last seven years, and an alien issued with a residence permit under sections 7or 8 may be expelled only if: ... (iv) the alien is sentenced to imprisonment or other custodial penalty pursuant to the Euphoriants Act or Articles 191 or 191a of the Criminal Code.” Section 26: 1. “In deciding whether or not to expel the alien, regard must be had not only to the alien's ties with the Danish community, including the duration of his stay in Denmark, but also to the question whether expulsion must be assumed to be particularly burdensome on him, in particular because of: (i) the alien's age, health, and other circumstances; (ii) the alien's personal or family ties with Danish or foreign nationals living in Denmark; (iii) the alien's other ties with Denmark, including whether the alien came to Denmark in his childhood or tender years and therefore spent some or all of his formative years in Denmark; (iv) the alien's slight or non-existent ties with his country of origin or any other country in which he may be expected to take up residence; (v) the risk that the alien will be ill-treated in his country of origin or any other country in which he may be expected to take up residence; and (vi) exposure to outrages, misuse or other harm etc. in the present country causing an alien holding a residence permit pursuant to section 9, subsection 1 (ii) to no longer cohabit at a shared residence with the person permanently resident in Denmark, or the alien's otherwise particularly weak position. 2. An alien may be expelled pursuant to section 22(iv) unless factors mentioned in subsection 1 above constitute a decisive argument against doing so.” Section 50 (1) provides: “If expulsion under section 49 (1) has not been enforced, an alien claiming that a material change in his circumstances has occurred, cf. section 26, may demand that the public prosecutor bring before the court the question of revocation of the expulsion order. Such a petition may be submitted not less than six months and no later than two months before the date when enforcement of the expulsion can be expected. If a petition is submitted at a later date, the court may decide to examine the case if it deems it to be excusable that the time-limit has been exceeded.“ THE LAW I. THE GOVERNMENT'S PRELIMINARY OBJECTION 20. The Government requested that the Court reconsider its decision of 28 June 2001 to declare the current complaint admissible, as in the Government's view the applicant failed to exhaust national remedies, notably by failing to request leave from the Leave to Appeal Board to appeal to the Supreme Court against the High Court's decision of 9 October 1998. Noting the Court's finding that a review pursuant to section 50 of the Aliens Act may be regarded as an adequate and effective remedy, the Government pointed out that such a review can only be carried out once (see the Supreme Court's decision of 7 September 2000). The applicant availed himself of this remedy when the City Court and the High Court rejected his request on 11 September 1998 and 9 October 1998. However, he failed to seek leave to appeal against the latter decision and has therefore not exhausted domestic remedies. 21. The Court points out that under Rule 55 of the Rules of Court any plea of inadmissibility must, in so far as its character and the circumstances permit, be raised by the Government in its observations on the admissibility of the application submitted as provided in Rule 51 or 54, as the case may be. 22. The Government's objection was not raised, as it could have been, when the admissibility of the application was being considered by the Court. Thus, in the Court's view there is estoppel (see, inter alia, Nikolova v. Bulgaria [GC], no. 31195/96, § 44, ECHR 1999-II and Rehbock v. Slovenia, no. 29462/95, 28 November 2000). II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 23. The applicant complained that if deported he would lose contact with his wife, children and stepdaughter as they cannot be expected to follow him to Iran. He invoked Article 8 of the Convention, which states: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Parties' submissions 24. The applicant submitted that his wife, his children and the daughter from his wife's previous relationship cannot be expected to go to Iran. His wife is not a Muslim and the daughter from his wife's previous relationship refuses to follow him to Iran. Accordingly, an expulsion would result in the break up of his family life. 25. The Government submitted that even if the expulsion order interferes with the applicant's family life, it discloses no violation of Article 8 of the Convention. Given the seriousness of the offence which the applicant committed in Denmark the measure of expulsion was called for in the interest of public safety, for the prevention of disorder or crime, and for the protection of the rights and freedoms of others, and was necessary in a democratic society within the meaning of Article 8 § 2 of the Convention. The Government drew attention to the fact that the applicant has very strong ties with his country of origin since he was already an adult when he left Iran and had his entire school education in Iran. He masters the local language, he served part of his compulsory military service and he has family there. In comparison, the applicant does not have strong ties with Denmark. At the time the expulsion order was made he had resided for only eight years in Denmark. Moreover, in the Government's view, there is no evidence to prove that the applicant's spouse, the children of the marriage, and the spouse's child of another relationship will not be able to accompany the applicant to Iran. B. The Court's assessment 1. Whether there was an interference with the applicant's right under Article 8 of the Convention 26. The Court recalls that no right for an alien to enter or to reside in a particular country is as such guaranteed by the Convention. However, the removal of a person from a country where close members of his family are living may amount to an infringement of the right to respect for family life as guaranteed in Article 8 § 1 of the Convention (see the Moustaquim v. Belgium judgment of 18 February 1991, Series A no. 193, p. 18, § 16). 27. In the present case, the applicant, an Iranian citizen, is married to a Danish citizen with whom at the time when the expulsion order became final he had one child, also holding Danish citizenship. Accordingly, the expulsion order interfered with the applicant's right to respect for his family life within the meaning of Article 8 § 1 of the Convention. 28. Such interference will infringe the Convention if it does not meet the requirements of paragraph 2 of Article 8. It is therefore necessary to determine whether it was “in accordance with the law”, motivated by one or more of the legitimate aims set out in that paragraph, and “necessary in a democratic society”. 2. Whether the interference was “in accordance with the law” 29. The Court observes, and this was not in dispute between the parties, that the Danish authorities, when expelling the applicant relied on various provisions of the Aliens Act, especially sections 22 and 26. 30. The Court is satisfied that the interference was “in accordance with the law” within the meaning of Article 8 § 2 of the Convention. 3. Whether the interference pursued a legitimate aim 31. When ordering the expulsion of the applicant, the Danish authorities, notably the City Court of Hobro in its judgment of 1 October 1997, considered that the applicant should be expelled on the basis of the serious offence which he had committed and in the interests of public order and security. 32. The Court is therefore satisfied that the measure was ordered “for the prevention of disorder (and) crime” within the meaning of Article 8 § 2 of the Convention. 4. Whether the interference was “necessary in a democratic society” 33. The Court recalls that it is for the Contracting States to maintain public order, in particular by exercising their right, as a matter of well ‑ established international law and subject to their treaty obligations, to control the entry and residence of aliens. To that end they have the power to deport aliens convicted of criminal offences. However, their decisions in this field must, insofar as they may interfere with a right protected under paragraph 1 of Article 8, be necessary in a democratic society, that is to say justified by a pressing social need and, in particular, proportionate to the legitimate aim pursued (see the Dalia v. France judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I, p. 91, § 52 and the Mehemi v. France judgment of 26 September 1997, Reports 1997 ‑ VI, p. 1971, § 34). 34. Accordingly, the Court's task consists in ascertaining whether the decision to expel the applicant in the circumstances struck a fair balance between the relevant interests, namely the applicant's right to respect for his family life, on the one hand, and the prevention of disorder and crime, on the other. 35. In cases where the main obstacle to expulsion is the difficulties for the spouses to stay together and in particular for a spouse and/or children to live in the country of origin of the person to be expelled, the guiding principles in order to examine whether the measure was necessary in a democratic society have been established by the Court as follows (see Boultif v. Switzerland, no. 54273/00, § 48, to be published in ECHR-2001). In assessing the relevant criteria in such a case, the Court will consider the nature and seriousness of the offence committed by the applicant; the length of the applicant's stay in the country from which he is going to be expelled; the time elapsed since the offence was committed and the applicant's conduct during that period; the nationalities of the various persons concerned; the applicant's family situation, such as the length of the marriage; and other factors expressing the effectiveness of a couple's family life; whether the spouse knew about the offence at the time when he or she entered into a family relationship; and whether there are children in the marriage, and if so, their age. Not least, the Court will also consider the seriousness of the difficulties which the spouse is likely to encounter in the country of origin, though the mere fact that a person might face certain difficulties in accompanying her or his spouse cannot in itself exclude an expulsion. 36. The Court has first considered the nature and seriousness of the offence committed. It notes that the applicant arrived in Denmark in 1989 and was subsequently convicted for drug trafficking committed during 1996. In its judgment of 1 October 1997 the City Court of Hobro found the applicant guilty, inter alia, of drug trafficking with regard to at least 450 grams of heroine contrary to Article 191 of the Criminal Code. The expulsion order was therefore based on a serious offence. 37. In view of the devastating effects drugs have on people's lives, the Court understands why the authorities show great firmness to those who actively contribute to the spread of this scourge (see, inter alia, the Dalia v. France judgment of 19 February 1998, Reports 1998-I, p. 92, §54). In the Court's view, even if the applicant had not previously been convicted, this does not detract from the seriousness and gravity of such a crime (see the Bouchelkia v. France judgment of 29 January 1997, Reports, 1997-I, p. 65, § 51 and Nwosu v. Denmark (dec.), no. 50359/99, 10 July 2001). 38. As to the applicant's connections with his country of origin, the Court recalls that he left Iran in 1987 when he was twenty-one years old. His mother tongue is Farsi and he had received all his schooling in Iran. Thus, undoubtedly he has ties with Iran. However, on the material before the Court, nothing suggests that the applicant has maintained strong links, if any, with Iran, notably since he lost contact with his family there in 1987. 39. As to the applicant's ties with Denmark, these are mainly connected with his wife, children and stepdaughter, who are all Danish citizens. The applicant and A got married in September 1997, one week before his conviction by the City Court. However, noting that their relationship commenced in 1992 and that they had their first child in October 1996 the Court has no doubt as to the “ effectiveness” of the couple's family life and it considers that the applicant must be considered to have strong ties with Denmark. 40. The Court has next examined the possibility of the applicant, his wife and his children establishing family life elsewhere. The Court has considered, first, whether the applicant and his wife and their children could live together in Iran. 41. The applicant's wife, A, is a Danish national. She has never been to Iran, she does not know Farsi and she is not a Muslim. Besides being married to an Iranian man, she has no ties with the country. In these circumstances the Court accepts even if it is not impossible for the spouse and the applicant's children to live in Iran that it would, nevertheless, cause them obvious and serious difficulties. In addition, the Court recalls that A's daughter from a previous relationship, who has lived with A since her birth in 1989, refuses to move to Iran. Taking this fact into account as well, A cannot, in the Court's opinion, be expected to follow the applicant to Iran. 42. The question of establishing family life elsewhere must also be examined. In this connection the Court notes that during the period from April 1987 until August 1989 the applicant stayed in Turkey and Greece respectively. Nevertheless, the applicant was apparently residing there illegally and it has not been established that he or A has any attachment to either of those countries. In the Court's opinion there is therefore no indication that both spouses can obtain authorisation to reside lawfully in either of the said countries or in any other country but Iran. 43. Accordingly, as a consequence of the applicant's permanent exclusion from Denmark the family will be separated, since it is de facto impossible for them to continue their family life outside Denmark. 44. In the light of the above elements, the Court considers that the expulsion of the applicant to Iran would be disproportionate to the aims pursued. The implementation of the expulsion would accordingly be in breach of Article 8 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 45. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 46. Following the decision of the Court declaring the application admissible, the Court requested the applicant to submit his claims for just satisfaction. Although the applicant had claimed just satisfaction in his original application, no claims were submitted in response to the Court's invitation. 47. The Court recalls that it is not required to examine such matters of its own motion and, consequently, finds that it is unnecessary to apply Article 41 in this case (the Huvig v. France judgment of 24 April 1990, Series A no. 176-B, p. 57, §§ 37-38). | In this case the Court decided to apply Rule 39 of the Rules of Court to prevent the applicant’s expulsion until his application had been examined. The Court ultimately reached the conclusion that there would be a violation of Article 8 of the Convention if he were deported to Iran. |
1 | Right to life | RELEVANT LEGAL FRAMEWORK domestic law 77. The relevant provisions of the Criminal Code ( Kazneni zakon, Official Gazette, no. 125/2011, with subsequent amendments), read as follows: Article 9 § 1 “A criminal offence shall be deemed to have been committed in the place where the perpetrator [undertook an action] or was obliged to undertake it, and in the place where the consequence [corresponding to] the legal description of the criminal offence occurred in whole or in part ...” Article 10 “The criminal law of the Republic of Croatia shall apply to anyone who commits a criminal offence within its territory.” 78. The relevant provisions of the International and Temporary Protection Act ( Zakon o međunarodnoj i privremenoj zaštiti, Official Gazette nos. 70/2015 and 127/2017) read as follows: Meaning of terms Section 4 “... 5. An international protection seeker (hereafter: ‘the seeker’) is a third-country national or a stateless person who expresses an intention to submit an application for international protection (hereafter: ‘the application’), until the decision on the application becomes enforceable. ... ... 12. An intention to submit an application for international protection (hereafter: ‘the intention’) is an intention expressed by a third-country national or a stateless person, orally or in written, to submit an application pursuant to section 33 of this Act. ... 16. A child is a seeker ... younger than eighteen. ... 21. A decision on an application shall become enforceable upon its delivery to the seeker, provided that an administrative action is not brought or does not have suspensive effect. If the action has suspensive effect, the decision on the application shall become enforceable upon the delivery of the first-instance judgment of the administrative court. ...” Expressing an intention Section 33 “(1) A third-country national or a stateless person may express an intention [to seek international protection] during border controls at the border crossing. (2) If the third-country national or stateless person is already on the territory of Croatia, he or she may express such an intention to the police administration; that is, at a police station or an immigration reception centre. (3) By derogation from subsection 2 of this section, such an intention may be expressed in a reception centre for seekers of international protection in extraordinary circumstances, so that access to the procedure for granting international protection is ensured. (4) If a third-country national or a stateless person cannot, for justified reasons, express an intention in accordance with subsections 2 and 3 of this section, the body to which he or she expressed the intention shall be obliged to inform the Ministry within three days. ... (8) The police officers or officials of the reception centre shall be obliged, immediately after the intention has been expressed, to take fingerprints from the seeker and his or her photograph, establish his or her identity, the way he or she arrived in Croatia, the direction of travel from his or her country of origin to Croatia and his or her personal circumstances ..., of which they shall be obliged to immediately inform the Ministry. ...” Procedure at the border or in transit area Section 42 “(1) The procedure for granting international protection following an expressed intention or a subsequent application at the border, or in the transit area of an airport, sea port or internal port, shall be conducted at the border crossing or in the transit area ... provided that: - the seeker is provided with reception conditions set out in section 55 of this Act and - the application, or subsequent application, can be dismissed as manifestly ill ‑ founded under section 38(1)(5) of this Act or declared inadmissible under section 43 of this Act. (2) Organisations for protecting the rights of refugees which, on the basis of an agreement with the Ministry, provide legal counselling under section 59(3) of this Act shall have effective access to border crossings or transit areas of airports, sea ports or internal ports. (3) The representative of an organisation that deals with protection of the rights of refugees, except UNHCR, may temporarily be restricted in accessing the seeker, when this is strictly necessary for protecting the national security or public order of Croatia. (4) The Ministry shall decide on an application for international protection in the procedure at the border or transit area within twenty-eight days from the submission of the application. (5) If a decision is not given within [twenty-eight days], the seeker shall be allowed to enter the Republic of Croatia for the purpose of conducting the procedure for international protection. ...” Declaring inadmissible an application or a subsequent application Section 43 “1. The Ministry shall declare an application inadmissible if: ... (3) it is possible to apply the concept of a safe third country, pursuant to section 45 of this Act; ... 3. The decision declaring the application inadmissible ...may be challenged by an administrative action before the administrative court pursuant to section 51 of this Act. ...” Legal remedy Procedure before the administrative court Section 51 “1. An administrative action lodged with the administrative court shall have suspensive effect ... ... 3. An appeal against the first-instance judgment of the administrative court shall not have suspensive effect.” Rights and obligations Section 52 “(1) The seeker has the right to: 1. stay [in Croatia]; 2. freedom of movement in Croatia; 3. adequate reception conditions; ... (3) The seeker is obliged to: 1. respect the Croatian Constitution and laws; 2. cooperate with the state authorities and comply with their measures and instructions; 3. submit to verification and establishing of identity; 4. submit to a medical exam; 5. respect the immigration reception centre’s house rules; 6. report to the immigration reception centre within given deadline; 7. appear at the interview before the Ministry and cooperate during the procedure for international protection; 8. stay on the territory of Croatia during the procedure for international protection; 9. inform the Ministry within two days after changing residence; 10. comply with the Ministry’s instructions and measures concerning restriction of freedom of movement.” Right to stay Section 53 “(1) A seeker shall have the right to stay in Croatia from the day of expressing an intention [to seek international protection] until the decision on his or her application becomes enforceable. ...” Freedom of movement of seekers Section 54 “(1) Seekers and foreigners in transit shall have the right to freedom of movement in Croatia. (2) The freedom of movement of seekers may be restricted if, on the basis of all the facts and circumstances of the specific case, this is deemed to be necessary for [the purpose of]: 1. establishing the facts and circumstances on which the application for international protection is based, and which cannot be established without restriction of movement, in particular if it is deemed that there is a risk of flight; 2. establishing and verifying identity or citizenship: 3. protection of the national security or public order of the Republic of Croatia; 4. prevention of abuse of the procedure if, on the basis of objective criteria, which include the possibility of access to the procedure for granting international protection, there is a well-founded suspicion that the intention expressed during the procedure of expulsion was aimed at preventing the procedure from continuing. ... (4) The risk of flight shall be assessed on the basis of all the facts and circumstances of the specific case, especially in view of earlier attempts to leave Croatia, the refusal to submit to verification and establishment of identity, concealment of information or providing false information on identity and/or nationality, violations of the provisions of the house rules of the reception centre, the results from the Eurodac system, and opposition to transfer. (5) The freedom of movement of a seeker or foreigner in transit may be restricted by the following measures: 1. prohibition of movement outside the reception centre; 2. prohibition of movement outside a specific area; 3. appearance in person at the reception centre at a specific time; 4. handing over travel documents or tickets for deposit at the reception centre; 5. accommodation in a reception centre for foreigners. (6) The measure of accommodation in a reception centre for foreigners may be imposed if, following an individual assessment, it is established that other measures referred to in subsection 5 of this section would not achieve the purpose of restriction of freedom of movement. (7) The freedom of movement of a member of a vulnerable group may be restricted by means of accommodation in a reception centre for foreigners if, following an individual assessment, it is established that such a form of accommodation is suitable for the applicant’s personal circumstances and needs, and especially for his or her health. ... (9) The measure of restriction of freedom of movement shall be imposed for as long as there are reasons for this as referred to in subsection 2 of this section, but for no longer than three months. Exceptionally, for justified reasons, the application of the measure of restriction of freedom of movement may be extended for no longer than three more months. ...” Right to information and legal counselling Section 59 “(1) [When] a third-country national or a stateless person placed in a reception centre, at the border crossing, in the transit area of an airport, seaport or internal port, wishes to express an intention [to seek international protection], the police officers shall provide to that person all the necessary information concerning the procedure for international protection in a language which that person is justifiably presumed to understand and in which he or she can communicate. (2) The Ministry shall, within fifteen days from expressing the intention, inform the seeker about the way the procedure for international protection is conducted, his or her rights and obligations in those proceedings and the possibility of contacting UNHCR and other organisations that deal with protection of rights of refugees, as well as the possibility of being granted legal aid. ...” 79. The relevant provisions of the Aliens Act ( Zakon o strancima, Official Gazette nos. 130/2011, 74/2013, 69/2017 and 46/2018), in force from 1 January 2012 to 31 December 2020, read as follows: Section 35 “A third-country national who meets the requirements for entry under the Schengen Borders Code shall be granted entry to the Republic of Croatia.” Section 36 “(1) A third-country national who does not meet the requirements for entry under the Schengen Borders Code may be granted entry to the Republic of Croatia at a border crossing on the basis of serious humanitarian grounds, international obligations or the interest of the Republic of Croatia. (2) The Ministry of the Interior shall issue a decision granting the entry referred to in subsection 1 of this section through the police station in charge of controlling the crossing of the State border. (3) The decision referred to in subsection 2 of this section shall determine the purpose of the stay, the place and address of the accommodation, the period in which the person may lawfully reside in Croatia ... The decision shall be issued without hearing the third-country national, unless he or she is an unaccompanied minor. ...” 80. Under the Act confirming the Readmission Agreement between Croatia and Serbia ( Zakon o potvrđivanju Sporazuma između Vlade Republike Hrvatske i Vlade Republike Srbije o predaji i prihvatu osoba kojih je ulazak ili boravak nezakonit, Official Gazette no. 1/2010), the two countries were required to accept into their territory, at each other’s request, a foreigner or a person without citizenship who did not meet the requirements to enter or stay in the country making the request, if it was established or could reasonably be assumed that the person had entered that country directly from the country receiving the request. 81. Pursuant to the Regulation on the internal structure of the Ministry of the Interior ( Uredba o unutarnjem ustrojstvu Ministarstva unutarnjih poslova, Official Gazette nos. 70/2012, 140/2013, 50/2014, 32/2015 and 11/2017), the Tovarnik Centre ( Tranzitni prihvatni centar za strance Tovarnik ) is designated for, inter alia, restriction of the freedom of movement of foreigners caught irregularly crossing the external EU border, pending their transfer to an immigration centre or their expulsion under a readmission agreement; participation in the procedure of establishing the identity of the foreigners placed there; provision of medical and psychological support; and fingerprinting for Eurodac. 82. Section 11(2) of the Ordinance on the Treatment of Third-Country Nationals ( Pravilnik o postupanju prema državljanima trećih zemalja, Official Gazette no. 68/2018) defined the humanitarian grounds referred to in section 36(1) of the Aliens Act as emergency medical assistance, human organ donation, natural disasters and unforeseen events involving close family members (such as severe illness or death). 83. The Government submitted that in 2019 the authorities had issued eighty decisions granting entry to Croatia on the basis of section 36 of the Aliens Act (see paragraph 79 above). As an example, they submitted two decisions granting entry to Croatia in 2019; one was issued at the Strmica border crossing point with Bosnia and Herzegovina to a Serbian national in possession of a valid passport on the grounds of unforeseen events involving close family members. The other one was issued at the Bajakovo border crossing point with Serbia to a person born in Bosnia and Herzegovina on the grounds of urgent medical assistance. 84. Section 18 of the Lawyers’ Ethics Code ( Kodeks odvjetničke etike, Official Gazette nos. 64/2007, 72/2008 and 64/2018) reads as follows: “Any disloyalty in conducting business is contrary to the honour and reputation of the advocacy service, and in particular: – acquiring clients through intermediaries; – giving third persons an empty power of attorney to complete; ...” European Union law AND PRACTICE 85. As regards European Union law, see N.D. and N.T. v. Spain ([GC], nos. 8675/15 and 8697/15, §§ 41-43, 13 February 2020). 86. Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (recast) states, in its 33rd introductory remark, that “the best interests of the child should be a primary consideration of Member States when applying this Directive, in accordance with the Charter of Fundamental Rights of the European Union (the Charter) and the 1989 United Nations Convention on the Rights of the Child. In assessing the best interest of the child, Member States should in particular take due account of the minor’s well-being and social development, including his or her background”. The relevant provisions of that Directive further read as follows: Article 6 Access to the procedure “1. ... Member States shall ensure that those other authorities which are likely to receive applications for international protection such as the police, border guards, immigration authorities and personnel of detention facilities have the relevant information and that their personnel receive the necessary level of training which is appropriate to their tasks and responsibilities and instructions to inform applicants as to where and how applications for international protection may be lodged.” Article 8 Information and counselling in detention facilities and at border crossing points “1. Where there are indications that third-country nationals or stateless persons held in detention facilities or present at border crossing points, including transit zones, at external borders, may wish to make an application for international protection, Member States shall provide them with information on the possibility to do so. In those detention facilities and crossing points, Member States shall make arrangements for interpretation to the extent necessary to facilitate access to the asylum procedure. ....” Article 26 Detention “1. Member States shall not hold a person in detention for the sole reason that he or she is an applicant. The grounds for and conditions of detention and the guarantees available to detained applicants shall be in accordance with Directive 2013/33/EU. 2. Where an applicant is held in detention, Member States shall ensure that there is a possibility of speedy judicial review in accordance with Directive 2013/33/EU.” 87. The relevant provisions of Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (recast) read as follows: Article 8 Detention “1. Member States shall not hold a person in detention for the sole reason that he or she is an applicant in accordance with Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection. 2. When it proves necessary and on the basis of an individual assessment of each case, Member States may detain an applicant, if other less coercive alternative measures cannot be applied effectively. 3. An applicant may be detained only: (a) in order to determine or verify his or her identity or nationality; (b) in order to determine those elements on which the application for international protection is based which could not be obtained in the absence of detention, in particular when there is a risk of absconding of the applicant; ...” Article 9 Guarantees for detained applicants “1. An applicant shall be detained only for as short a period as possible and shall be kept in detention only for as long as the grounds set out in Article 8(3) are applicable. Administrative procedures relevant to the grounds for detention set out in Article 8(3) shall be executed with due diligence. Delays in administrative procedures that cannot be attributed to the applicant shall not justify a continuation of detention. ... 3. Where detention is ordered by administrative authorities, Member States shall provide for a speedy judicial review of the lawfulness of detention to be conducted ex officio and/or at the request of the applicant. ... When conducted at the request of the applicant, it shall be decided on as speedily as possible after the launch of the relevant proceedings. To this end, Member States shall define in national law the period within which the judicial review ex officio and/or the judicial review at the request of the applicant shall be conducted. Where, as a result of the judicial review, detention is held to be unlawful, the applicant concerned shall be released immediately. 4. Detained applicants shall immediately be informed in writing, in a language which they understand or are reasonably supposed to understand, of the reasons for detention and the procedures laid down in national law for challenging the detention order, as well as of the possibility to request free legal assistance and representation. ...” Article 10 Conditions of detention “... 2. Detained applicants shall have access to open-air spaces. ... 4. Member States shall ensure that family members, legal advisers or counsellors and persons representing relevant non-governmental organisations recognised by the Member State concerned have the possibility to communicate with and visit applicants in conditions that respect privacy. Limits to access to the detention facility may be imposed only where, by virtue of national law, they are objectively necessary for the security, public order or administrative management of the detention facility, provided that access is not thereby severely restricted or rendered impossible.” Article 11 Detention of vulnerable persons and of applicants with special reception needs “... 2. Minors shall be detained only as a measure of last resort and after it having been established that other less coercive alternative measures cannot be applied effectively. Such detention shall be for the shortest period of time and all efforts shall be made to release the detained minors and place them in accommodation suitable for minors. The minor’s best interests, as prescribed in Article 23(2), shall be a primary consideration for Member States. ...” Article 23 Minors “1. The best interests of the child shall be a primary consideration for Member States when implementing the provisions of this Directive that involve minors. Member States shall ensure a standard of living adequate for the minor’s physical, mental, spiritual, moral and social development. .... 3. Member States shall ensure that minors have access to leisure activities, including play and recreational activities appropriate to their age within the premises and accommodation centres referred to in Article 18(1)(a) and (b) and to open-air activities. 4. Member States shall ensure access to rehabilitation services for minors who have been victims of any form of abuse, neglect, exploitation, torture or cruel, inhuman and degrading treatment, or who have suffered from armed conflicts, and ensure that appropriate mental health care is developed and qualified counselling is provided when needed. ...” 88. In its judgment of 14 May 2020 in the case of FMS and Others v. Országos Idegenrendészeti Főigazgatóság Dél-alföldi Regionális Igazgatóság and Országos Idegenrendészeti Főigazgatóság (C-924/19 PPU and C-925/19 PPU), the Court of Justice of the European Union held, inter alia, as follows: “In the first place, it should be observed that the first subparagraph of Article 8(3) of Directive 2013/33 lists exhaustively the various grounds that may justify the detention of an applicant for international protection and that each of those grounds meets a specific need and is self-standing ... ... In addition, Article 8(2) of that directive provides that detention may be applied only when it proves necessary, on the basis of an individual assessment of each case and if other less coercive alternative measures cannot be applied effectively. It follows that the national authorities cannot place an applicant for international protection in detention without having previously determined, on a case-by-case basis, whether such detention is proportionate to the aims which it pursues ... It follows from the foregoing that Article 8(2) and (3) and Article 9(2) of Directive 2013/33 preclude an applicant for international protection being placed in detention without the necessity and proportionality of that measure having first been examined and without an administrative or judicial decision stating the reasons in fact and in law for which such detention is ordered having been adopted.” UNITED NATIONS 89. The relevant provisions of the Convention on the Rights of the Child, which came into force on 2 September 1990, read as follows: Article 1 “For the purposes of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.” Article 3 “1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. ...” Article 22 “1. States Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties. ...” Article 37 “States Parties shall ensure that: ... (b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time; (c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances; (d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.” 90. The relevant part of General Comment No. 6 (2005) of the United Nations Committee on the Rights of the Child – Treatment of unaccompanied and separated children outside their country of origin (UN Doc. CRC/GC/2005/6, 1 September 2005) – reads as follows: “12. ... the enjoyment of rights stipulated in the Convention [on the Rights of the Child] are not limited to children who are citizens of a State party and must therefore, if not explicitly stated otherwise in the Convention, also be available to all children - including asylum-seeking, refugee and migrant children - irrespective of their nationality, immigration status or statelessness ... 19. ... In the case of a displaced child, [the principle of the best interests of the child] must be respected during all stages of the displacement cycle. At any of these stages, a best interests determination must be documented in preparation of any decision fundamentally impacting on the unaccompanied or separated child’s life. 20. A determination of what is in the best interests of the child requires a clear and comprehensive assessment of the child’s identity, including her or his nationality, upbringing, ethnic, cultural and linguistic background, particular vulnerabilities and protection needs. Consequently, allowing the child access to the territory is a prerequisite to this initial assessment process. The assessment process should be carried out in a friendly and safe atmosphere by qualified professionals who are trained in age and gender sensitive related interviewing techniques. ... 66. Asylum-seeking children, including those who are unaccompanied or separated, shall enjoy access to asylum procedures and other complementary mechanisms providing international protection, irrespective of their age. In the case that facts become known during the identification and registration process which indicate that the child may have a well-founded fear or, even if unable to explicitly articulate a concrete fear, the child may objectively be at risk of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion, or otherwise be in need of international protection, such a child should be referred to the asylum procedure and/or, where relevant, to mechanisms providing complementary protection under international and domestic law.” 91. The relevant part of General Comment No. 14 (2013) of the United Nations Committee on the Rights of the Child on the right of the child to have his or her best interests taken as a primary consideration (UN Doc. CRC/C/GC/14, 29 May 2013), reads as follows: “6. The Committee underlines that the child’s best interests is a threefold concept: (a) A substantive right: The right of the child to have his or her best interests assessed and taken as a primary consideration when different interests are being considered in order to reach a decision on the issue at stake, and the guarantee that this right will be implemented whenever a decision is to be made concerning a child, a group of identified or unidentified children or children in general. Article 3, paragraph 1, creates an intrinsic obligation for States, is directly applicable (self-executing) and can be invoked before a court. (b) A fundamental, interpretative legal principle: If a legal provision is open to more than one interpretation, the interpretation which most effectively serves the child’s best interests should be chosen. The rights enshrined in the Convention and its Optional Protocols provide the framework for interpretation. (c) A rule of procedure: Whenever a decision is to be made that will affect a specific child, an identified group of children or children in general, the decision ‑ making process must include an evaluation of the possible impact (positive or negative) of the decision on the child or children concerned. Assessing and determining the best interests of the child require procedural guarantees. Furthermore, the justification of a decision must show that the right has been explicitly taken into account. In this regard, States parties shall explain how the right has been respected in the decision, that is, what has been considered to be in the child’s best interests; what criteria it is based on; and how the child’s interests have been weighed against other considerations, be they broad issues of policy or individual cases. ... 37. The expression “primary consideration” means that the child’s best interests may not be considered on the same level as all other considerations. This strong position is justified by the special situation of the child: dependency, maturity, legal status and, often, voicelessness. Children have less possibility than adults to make a strong case for their own interests and those involved in decisions affecting them must be explicitly aware of their interests. If the interests of children are not highlighted, they tend to be overlooked. .... 39. However, since article 3, paragraph 1, covers a wide range of situations, the Committee recognizes the need for a degree of flexibility in its application. The best interests of the child – once assessed and determined – might conflict with other interests or rights (e.g. of other children, the public, parents, etc.). Potential conflicts between the best interests of a child, considered individually, and those of a group of children or children in general have to be resolved on a case-by-case basis, carefully balancing the interests of all parties and finding a suitable compromise. The same must be done if the rights of other persons are in conflict with the child’s best interests. If harmonization is not possible, authorities and decision-makers will have to analyse and weigh the rights of all those concerned, bearing in mind that the right of the child to have his or her best interests taken as a primary consideration means that the child’s interests have high priority and not just one of several considerations. Therefore, a larger weight must be attached to what serves the child best. 40. Viewing the best interests of the child as “primary” requires a consciousness about the place that children’s interests must occupy in all actions and a willingness to give priority to those interests in all circumstances, but especially when an action has an undeniable impact on the children concerned.” 92. As regards the views adopted by the Committee on the Rights of the Child on 1 February 2019 under the Optional Protocol to the Convention on the Rights of the Child on a communications procedure, concerning communication No. 4/2016, see N.D. and N.T. v. Spain (cited above, § 68). The relevant part of these views reads as follows: “14.2. The issue before the Committee is whether, in the circumstances of this case, the author’s return to Morocco by the Spanish Civil Guard on 2 December 2014 violated his rights under the Convention. In particular, the author claimed that, by summarily deporting him to Morocco on 2 December 2014, without performing any form of identity check or assessment of his situation, the State party: (a) failed to provide the author with the special protection and assistance to which he was entitled as an unaccompanied minor (art. 20); (b) failed to respect the principle of non‑refoulement and exposed the author to the risk of violence and cruel, inhuman and degrading treatment in Morocco (art. 37); and (c) failed to consider the best interests of the child (art. 3). 14.3. The Committee is of the view that the State’s obligations to provide special protection and assistance to unaccompanied children, in accordance with article 20 of the Convention, apply even ‘with respect to those children who come under the State’s jurisdiction when attempting to enter the country’s territory’. Similarly, the Committee considers that ‘the positive aspect of these protection obligations also extends to requiring States to take all necessary measures to identify children as being unaccompanied or separated at the earliest possible stage, including at the border’. Accordingly, it is imperative and necessary that, in order to comply with its obligations under article 20 of the Convention and to respect the best interests of the child, the State conducts an initial assessment, prior to any removal or return, that includes the following stages: (a) assessment, as a matter of priority, of whether the person concerned is an unaccompanied minor, with, in the event of uncertainty, the individual being accorded the benefit of the doubt such that, if there is a possibility that the individual is a child, he or she is treated as such; (b) verification of the child’s identity by means of an initial interview; and (c) assessment of the child’s specific situation and particular vulnerabilities, if any. 14.4. The Committee is also of the view that, in compliance with its obligations under article 37 of the Convention, in order to ensure that no child is subjected to torture or other cruel, inhuman or degrading treatment, the State should not return a child ‘to a country where there are substantial grounds for believing that there is a real risk of irreparable harm to the child’. The Committee therefore considers that, in accordance with article 37 of the Convention and the principle of non-refoulement, the State has an obligation to carry out a prior assessment of the risk, if any, of irreparable harm to the child and serious violations of his or her rights in the country to which he or she will be transferred or returned, taking into account the best interests of the child, including, for example, ‘the particularly serious consequences for children of the insufficient provision of food or health services’. In particular, the Committee recalls that, in the context of best interest assessments and within best interest determination procedures, children should be guaranteed the right to: (a) access the territory, regardless of the documentation they have or lack, and be referred to the authorities in charge of evaluating their needs in terms of protection of their rights, ensuring their procedural safeguards. ... 14.6. The Committee also notes the State party’s allegation that the principle of non-refoulement does not apply in the present case because it only applies when the person comes from a territory where there is a risk of persecution. However, the Committee reiterates that the State party has an obligation not to return a child ‘to a country where there are substantial grounds for believing that there is a real risk of irreparable harm to the child’. The Committee also notes that, before returning the author to Morocco, the State party did not ascertain his identity, did not ask about his personal circumstances and did not conduct a prior assessment of the risk, if any, of persecution and/or irreparable harm in the country to which he was to be returned. The Committee considers that, given the violence faced by migrants in the Moroccan border area and the ill-treatment to which the author was subjected, the failure to assess the risk of irreparable harm to the author prior to his deportation or to take into account his best interests constitutes a violation of articles 3 and 37 of the Convention. 14.7. The Committee considers that, in the light of the circumstances of the case, the fact that the author, as an unaccompanied child, did not undergo an identity check and assessment of his situation prior to his deportation and was not given an opportunity to challenge his potential deportation violates his rights under articles 3 and 20 of the Convention. 14.8. Lastly, the Committee considers that the manner in which the author was deported, as an unaccompanied child deprived of his family environment and in a context of international migration, after having been detained and handcuffed and without having been heard, without receiving the assistance of a lawyer or interpreter and without regard to his needs, constitutes treatment prohibited under article 37 of the Convention. 14.9. The Committee, acting under article 10 (5) of the Optional Protocol, is of the view that the facts before it amount to a violation of articles 3, 20 and 37 of the Convention.” 93. The General Assembly of the United Nations stated in Article 3 of its Declaration on Territorial Asylum, adopted on 14 December 1967 (A/RES/2312 (XXII)): “No person referred to in article 1, paragraph 1, shall be subjected to measures such as rejection at the frontier or, if he has already entered the territory in which he seeks asylum, expulsion or compulsory return to any State where he may be subjected to persecution.” 94. On 19 September 2016 the General Assembly of the United Nations adopted the New York Declarations for Refugees and Migrants, in which it stated: “24. ... We will ensure that public officials and law enforcement officers who work in border areas are trained to uphold the human rights of all persons crossing, or seeking to cross, international borders. ... We reaffirm that, in line with the principle of non-refoulement, individuals must not be returned at borders. ... 33. Reaffirming that all individuals who have crossed or are seeking to cross international borders are entitled to due process in the assessment of their legal status, entry and stay, we will consider reviewing policies that criminalize cross-border movements. ... 65. We reaffirm the 1951 Convention relating to the Status of Refugees and the 1967 Protocol thereto as the foundation of the international refugee protection regime. ...” 95. The relevant part of the Joint General Comment No. 3 (2017) of the Committee on the Protection of the Rights of All Migrant Workers and Members of their Families and No. 22 (2017) of the Committee on the Rights of the Child on the general principles regarding the human rights of children in the context of international migration, reads as follows: “3. In the context of international migration, children may be in a situation of double vulnerability as children and as children affected by migration who (a) are migrants themselves, either alone or with their families ... ... 11. States should ensure that children in the context of international migration are treated first and foremost as children. States parties to the Conventions have a duty to comply with their obligations set out therein to respect, protect and fulfil the rights of children in the context of international migration, regardless of their or their parents’ or legal guardians’ migration status. ... 30. ... the best interests of the child should be ensured explicitly through individual procedures as an integral part of any administrative or judicial decision concerning the entry, residence or return of a child, placement or care of a child, or the detention or expulsion of a parent associated with his or her own migration status. ... 32. The Committees stress that States parties should: ... (h) “ensure that children are identified promptly in border controls and other migration-control procedures within the State’s jurisdiction, and that anyone claiming to be a child is treated as such, promptly referred to child protection authorities and other relevant services, and appointed a guardian, if unaccompanied or separated”. Council of Europe 96. On 4 May 2005 the Committee of Ministers of the Council of Europe adopted twenty guidelines on forced return. The guideline of relevance to the present case reads as follows: Guideline 11. Children and families “1. Children shall only be detained as a measure of last resort and for the shortest appropriate period of time. 2. Families detained pending removal should be provided with separate accommodation guaranteeing adequate privacy. 3. Children, whether in detention facilities or not, have a right to education and a right to leisure, including a right to engage in play and recreational activities appropriate to their age. The provision of education could be subject to the length of their stay. ... 5. The best interest of the child shall be a primary consideration in the context of the detention of children pending removal.” 97. In Recommendation Rec(2003)5 of the Committee of Ministers of the Council of Europe to member States on measures of detention of asylum-seekers, adopted by the Committee of Ministers on 16 April 2003 at the 837 th meeting of the Ministers’ Deputies, the Committee of Ministers recommended that, in particular in respect of minors: “4. Measures of detention of asylum-seekers should be applied only after a careful examination of their necessity in each individual case. These measures should be specific, temporary and non-arbitrary and should be applied for the shortest possible time. Such measures are to be implemented as prescribed by law and in conformity with standards established by the relevant international instruments and by the case ‑ law of the European Court of Human Rights. ... 6. Alternative and non-custodial measures, feasible in the individual case, should be considered before resorting to measures of detention. ... 20. As a rule, minors should not be detained unless as a measure of last resort and for the shortest possible time. 21. Minors should not be separated from their parents against their will, nor from other adults responsible for them whether by law or custom. 22. If minors are detained, they must not be held under prison-like conditions. Every effort must be made to release them from detention as quickly as possible and place them in other accommodation. If this proves impossible, special arrangements must be made which are suitable for children and their families. 23. For unaccompanied minor asylum-seekers, alternative and non-custodial care arrangements, such as residential homes or foster placements, should be arranged and, where provided for by national legislation, legal guardians should be appointed, within the shortest possible time.” 98. In Recommendation 1985 (2011) of 7 October 2011, entitled “Undocumented migrant children in an irregular situation: a real cause for concern”, the Parliamentary Assembly of the Council of Europe considered that undocumented migrant children were triply vulnerable: as migrants, as persons in an undocumented situation and as children. It recommended that member States refrain from detaining undocumented migrant children, and protect their liberty by abiding by the following principles: “9.4.1. a child should, in principle, never be detained. Where there is any consideration to detain a child, the best interest of the child should always come first; 9.4.2. in exceptional cases where detention is necessary, it should be provided for by law, with all relevant legal protection and effective judicial review remedies, and only after alternatives to detention have been considered; 9.4.3. if detained, the period must be for the shortest possible period of time and the facilities must be suited to the age of the child; relevant activities and educational support must also be available; 9.4.4. if detention does take place, it must be in separate facilities from those for adults, or in facilities meant to accommodate children with their parents or other family members, and the child should not be separated from a parent, except in exceptional circumstances; 9.4.5. unaccompanied children should, however, never be detained; 9.4.6. no child should be deprived of his or her liberty solely because of his or her migration status, and never as a punitive measure; 9.4.7. where a doubt exists as to the age of the child, the benefit of the doubt should be given to that child; ...” 99. Prior to the above recommendation, in Resolution 1707 (2010) of 28 January 2010, the Parliamentary Assembly called on Council of Europe member States in which asylum-seekers and irregular migrants were detained to comply fully with their obligations under international human rights and refugee law, and encouraged them to abide by a number of guiding principles requiring, inter alia, that vulnerable people should not, as a rule, be placed in detention and specifically that unaccompanied minors should never be detained. 100. In Resolution 2295 (2019) of 27 June 2019, the Parliamentary Assembly reiterated its position of condemning violent practices such as detaining migrant children and using invasive methods in age-assessment procedures, which may have devastating effects on the child’s physical, emotional and psychological development. It welcomed the activities of the Parliamentary Campaign to End Immigration Detention of Children in promoting alternatives to immigration detention and encouraging a holistic approach to age assessment. It urged the member States of the Council of Europe to prevent all cases of violence against migrant children by: “... 8.1.2. ensuring the compliance of national legislation with international standards for the protection of migrant children, in particular prohibiting their detention and ensuring the best interests of the child and their right to participate in decisions affecting them; 8.1.3. supporting the development of alternatives to detention of migrant children – such as foster care and supervised independent living with reporting obligations – and the setting out of a clear roadmap to end the practice of detention of children in a migration context; 8.1.4. providing legal safeguards for migrant children regarding their access to asylum procedures and guarantees that children are provided with child-friendly and age-appropriate information about asylum possibilities and other rights; ... 8.2.1. refraining from push-back practices in particular in relation to migrant children; ... 8.2.4. providing special training for law-enforcement and immigration officers, and border guards on international humanitarian law and the main international standards on the treatment of migrant children; ... 8.2.9. creating asylum units specialised in assisting migrant children and providing child-friendly information in the child’s native language; ...” 101. In Resolution 2299 (2019) of 28 June 2019 on pushback policies and practice in Council of Europe member States, the Parliamentary Assembly expressed concern about the persistent and increasing practice and policies of pushbacks, which were in clear violation of the rights of asylum-seekers and refugees, including the right to asylum and the right to protection against refoulement, which were at the core of international refugee and human rights law. It urged the member States of the Council of Europe: “12.1. with respect to border controls, to 12.1.1. refrain from any measure or policy leading to pushbacks or collective expulsions, as they lead to a violation of the core rights of international asylum law, notably the right to asylum, the right to be protected against refoulement and the right to access an asylum procedure; 12.1.2. refrain from any type of violence against migrants and measures depriving them of their basic needs such as food, water, housing and emergency health care; 12.1.3. ensure independent and sustainable monitoring of border control activities, which is essential in putting an end to (violent) pushback action, by granting independent bodies and NGOs access to all border areas, by granting independent bodies access to all border surveillance material, and by effectively addressing reports and complaints by migrants and NGOs, ensuring sufficient independence; 12.1.4. combine the investigation of incidents with protective measures for alleged victims pending conclusions. Prevention measures must be introduced against informal forced return procedures, including standardised procedures at borders and clear rules of conduct; 12.1.5. encourage and support legal research, investigative journalism and reliable information from recognised, reputable, international and non-governmental organisations as a means of correctly informing the public, rather than relying on unsubstantiated reports, hearsay and misinformation. Satellite and digital data enable registration of cases which require investigation by official and impartial bodies; 12.1.6. comply with judgments of national courts and of the European Court of Human Rights, including their interim measures, in relation to pushbacks and refusing access to asylum and even to an asylum procedure, and to follow up recommendations of national independent bodies such as ombudspersons; 12.1.7. introduce and/or improve police training programmes, emphasising that border protection and surveillance must be carried out in full compliance with international obligations to respect individual rights to protection, to information, to legal assistance and not to be detained arbitrarily; 12.2. with respect to services at borders, to: 12.2.1. increase the means given to border services to allow them to provide adequate services to refugees, asylum seekers and migrants arriving at national borders, whatever their status and pending the implementation of appropriate procedures; 12.2.2. ensure the provision to migrants arriving at borders of information on their legal position, including on their right to apply for international protection (as enshrined in Article 8 of Directive 2013/32/EU of the European Parliament and of the Council on common procedures for granting and withdrawing international protection – the recast Asylum Procedures Directive) in a language they can understand, including oral interpretation (if necessary using the possibilities of distant interpretation using services available on the internet), taking into account the special difficulties of vulnerable people such as children and traumatised and illiterate people; 12.2.3. ensure the provision of interpretation at borders and throughout reception and medical examinations, registration and asylum processing, and to immediately cease any practices consisting in obliging migrants to sign documents they do not comprehend, which could lead them to believe they are signing asylum applications when the documents concern deportation; 12.3. concerning legal assistance, to: 12.3.1. ensure migrants can make a claim for protection at borders, and obtain legal aid and accessible and comprehensible information regarding their legal rights, taking into account the special circumstances of vulnerable people; 12.3.2. allow NGOs to provide assistance at places where human rights violations are reported (in particular in transit zones and along borders); 12.4. concerning medical and psychological assistance, to: 12.4.1. provide adequate access to medical services and health care at borders and immediately after transportation to reception centres, ensuring a permanent presence of medical staff, taking into account the special needs of vulnerable people, such as children, traumatised people and pregnant women; 12.4.2. in this framework, enable formal testimonies of physical violence perpetrated by border officials to be verified objectively; 12.4.3. give access to psychological support for asylum seekers, especially children, who often suffer from multiple trauma on arrival in Europe. The psychologists working with NGOs should be involved as partners in providing support, in view of the extensive experience and expertise of international NGO networks working with migrants; 12.5. concerning NGOs, to: 12.5.1. consider NGOs as partners and refrain from action that undermines their legitimate activities aimed at saving human lives; 12.5.2. refrain from using stigmatising rhetoric against NGOs assisting migrants, and refrain from taking any measures criminalising, stigmatising or putting at any disadvantage individuals and NGOs providing humanitarian assistance to, and defending the rights of, refugees, asylum seekers and migrants; the authorities are thereby invited to restore an enabling environment conducive to their work; 12.5.3. investigate allegations of infractions by NGOs of national laws or regulations before independent courts for adjudication and sanctions, which should only be applied in proven cases, respecting the principle of proportionality and founded on a clear legal basis.” 102. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) Factsheet on immigration detention (CPT/Inf(2017)3), in so far as relevant, reads as follows: 5. Open regime “Conditions of detention for irregular migrants should reflect the nature of their deprivation of liberty, with limited restrictions in place and a varied regime of activities. Within the detention facility, detained persons should be restricted in their freedom of movement as little as possible. Detained irregular migrants should in principle have free access to outdoor exercise throughout the day (i.e. considerably more than one hour per day) and outdoor exercise areas should be appropriately equipped (benches, shelters, etc.). The longer the period for which persons are held, the more developed should be the activities which are offered to them. ... Immigration detention centres should include access to a day room and to radio/television and newspapers/magazines, as well as other appropriate means of recreation (e.g. board games, table tennis, sports), a library and a prayer room. All multiple occupancy rooms should be equipped with tables and chairs commensurate with the number of persons detained. The presumption should be in favour of open visits for detained foreign nationals. Visiting rooms should enable immigration detainees to meet under open conditions with family and friends visiting them, and the environment should be child-friendly (including a play area for children). If, exceptionally, it is considered necessary to impose restrictions on a particular foreign national, this should be done on the basis of an individual risk assessment. ...” 10. Care of vulnerable persons (in particular children) “Specific screening procedures aimed at identifying victims of torture and other persons in situation of vulnerability should be put in place and appropriate care should be provided. In this context, the CPT considers that there should be meaningful alternatives to detention for certain vulnerable categories of person. These categories include inter alia victims of torture, victims of trafficking, pregnant women and nursing mothers, children, families with young children, elderly persons and persons with disabilities. The CPT wishes to recall its position that every effort should be made to avoid resorting to the deprivation of liberty of an irregular migrant who is a child. When, exceptionally, children are held with their parents in a detention centre, the deprivation of liberty should be for the shortest possible period of time. Mother (or any other primary carer) and child should be accommodated together in a facility catering for their specific needs. ... Children should only be held in centres designed to cater for their specific needs and staffed with properly trained men and women. In order to limit the risk of exploitation, special arrangements should be made for living quarters that are suitable for children, for example, by separating them from adults, unless it is considered in the child’s best interests not to do so. This would, for instance, be the case when children are in the company of their parents or other close relatives. In that case, every effort should be made to avoid splitting up the family. Children deprived of their liberty should be offered a range of constructive activities (with particular emphasis on enabling a child to continue his/her education).” Material describing THE situation of migrants arriving IN CroatiaEuropean Union Agency for Fundamental Rights European Union Agency for Fundamental Rights European Union Agency for Fundamental Rights 103. The relevant part of the European Union Agency for Fundamental Rights (FRA) report “Periodic data collection on the migration situation in the EU - February 2018 – Highlights” concerning Croatia reads: “According to the Ombudsperson and UNHCR, Croatian police continued to force asylum-seekers back to Serbia and Bosnia and Herzegovina, in some cases using violence, without giving them an opportunity to lodge claims for international protection. For example, a Syrian national who had allegedly been subject to abuse and sexual exploitation was pushed back to Bosnia and Herzegovina although the police was informed about his vulnerability, the Croatian Law Center reported. A 6 ‑ year-old Afghani girl, who had already applied for asylum with her family in Croatia, lost her life after a train hit her at the border between Croatia and Serbia. According to media reports, the police had allegedly instructed the family to follow the railroad tracks back to Serbia, instead of processing the asylum application. ... According to the Ombudspersons Office, police stations at the Eastern border of Croatia recorded only some 150 asylum applications, while 1,100 persons were returned to Serbia or Bosnia and Herzegovina. All decisions on expulsion had the same non-individualised wording. As no interpreter was available, procedures were held in English. ... Reception centres in Croatia did not respect procedural and reception guarantees for vulnerable people as prescribed by law, the Croatian Law Center stated. No identification procedures, interpreters or specialised support services for victims of torture, trauma or human trafficking, people with mental health problems or addictions were available, according to the Centre for Peace Studies. ... During the reporting period in Croatia, 40 immigrants were detained, including a girl who had been a trafficking victim. She was detained for five weeks before being transferred to the Centre for missing and abused children, according to the Jesuit Refugee Service.” The relevant part of the FRA report “Periodic data collection on the migration situation in the EU - March 2018 Highlights” concerning Croatia reads: “The Ombudsperson confirmed that the allegations of pushbacks at the border of Croatia continued, as stated in his letter to the State Attorney in January. ... In Croatia, the Centre for Peace Studies has unsuccessfully been trying to access the detention centre since the beginning of 2018, in order to conduct regular visits as previously informally agreed with the Head Officer of the Detention Centre. As the main building is under reconstruction, persons in detention cannot get out for fresh air, according to the Jesuit Refugee Service. ... In Croatia, the NGO ‘Are You Syrious’ reported on the police driving migrants back to the Serbian border or forcing them to walk for eight hours back to Šid. According to their reports, at least one woman was physically assaulted by officers. Pushed back migrants had to sleep outside in harsh winter conditions without food or water.” The relevant part of the FRA report “Periodic data collection on the migration situation in the EU – May 2018 Highlights” concerning Croatia reads: “Pushbacks of people who crossed the border without authorisation, including children who intended to seek asylum, continued from Croatia towards Serbia and Bosnia and Herzegovina on a daily basis, sometimes involving the use of excessive force, according to an interview with the NGO Welcome Initiative Service and media reports. Several children suffered injuries, including a 17-year-old boy from Afghanistan who sustained a concussion and a broken arm. Two men drowned trying to cross the river Kupa between Croatia and Slovenia. ... According to an interview with the Ombudsperson’s Office in Croatia, the conditions for children and vulnerable persons in the Ježevo Detention Centre and the Tovarnik Transit Detention Centre were sub-standard. Following a visit, the Ombudsperson’s Office reported his observations to the relevant state bodies. The Asylum and Foreigners Service introduced a new practice making the approval of visits of NGOs to detention facilities more cumbersome, the Croatian Law Centre reported.” The relevant part of the FRA report “Periodic data collection on the migration situation in the EU – November 2018 Highlights” concerning Croatia reads: “Reports noted that the Croatian police continue to use force against migrants to push them back to neighbouring countries after they have crossed the Croatian border in an unauthorised manner. The Ministry of the Interior repeatedly denied the Ombudsperson access to information regarding police treatment. UNHCR, the Council of Europe and Members of the European Parliament called on Croatia to investigate allegations of collective expulsions of migrants and of excessive use of force by law enforcement officers, which have been witnessed for more than two years. ... Access to asylum in Croatia remained restricted. According to the Jesuit Refugee Service, police officers said to asylum-seekers at the border that they had no time to take asylum requests and instructed them to proceed towards Bregana (border crossing between Croatia and Slovenia). The lack of translators, as well as the lack of defined standards for translators working in counselling and psychotherapy, remained concerns, according to an interview with the Society for Psychological Assistance.” The relevant part of the FRA report “Migration: Key fundamental rights concerns – Quarterly bulletin 1” issued in February 2019 concerning Croatia reads: “Asylum requests are being ignored and people, including children, continue to be pushed back from Croatia, NGOs and individuals reported to the Ombudsperson’s Office. According to Save the Children, the largest number of pushbacks involving children in 2018 was reported at the border between Serbia and Croatia ... News about police violence against refugees appears on a daily basis. A Guardian video showed asylum-seekers from Algeria, Syria and Pakistan being brutally beaten and sent back after being captured by the Croatian police while attempting to cross the Bosnia ‑ Croatia border. The NGO No Name Kitchen reports regularly about police violence. The Centre for Peace Studies has filed criminal charges against unidentified Croatian police officers for unlawful acts against refugees and migrants at Croatia’s border with Bosnia and Herzegovina. Border Violence Monitoring – a Serbian non ‑ profit database – published video footage of pushbacks of migrants including children and has collected more than 150 push-back reports from the Bosnian ‑ Croatian border. ... The Croatian Law Centre reported that there are no alternatives to detention in Croatia and access to detention centres for NGOs and lawyers remains limited. According to the new By-law on the Rules Regarding Detention in the Reception Centre for Foreigners to the Ministry of Interior, lawyers need to announce their visit two days in advance (same as regular visitors) and police officials are present throughout the visit.” Croatian Ombudswoman’s letters to the State authoritiesLetter of 23 January 2018 to the State Attorney of the Republic of Croatia Letter of 23 January 2018 to the State Attorney of the Republic of Croatia Letter of 23 January 2018 to the State Attorney of the Republic of Croatia 104. On 23 January 2018 the Croatian Ombudswoman sent a letter to the State Attorney of the Republic of Croatia regarding the event of 21 November 2017 during which the first and second applicant’s daughter, MAD.H., was hit by a train, as well as regarding the general practice of the Croatian police in respect of migrants entering Croatia from Serbia. On the first point she submitted that she had conducted an inquiry after receiving a complaint from the first applicant lodged through the Serbian branch of Médecins sans Frontières. She noted that the applicants and the police officers had reported differently on the sequence of events which had led to the first and second applicants’ daughter’s death. The Ombudswoman noted, however, that there had been no thermographic camera recordings of the event. She noted that in previous cases in which she had sought to obtain such recordings, the thermographic camera recordings had also not been available owing to technical problems. She submitted that a criminal investigation should be conducted. She suggested that the contacts between the applicants and the police before the train had hit MAD.H. on 21 November 2017 be established by inspecting the signals from their mobile telephones and the police car GPS. On the second point she noted that the results of her inquiries conducted in 2016 and 2017 had shown reasonable suspicion that the practice of the police officers on the border with Serbia, and in particular the fact that they were returning irregular migrants to Serbia without conducting proceedings under the Aliens Act and the International and Temporary Protection Act, had not been adequately investigated. The Ombudswoman reported on an order of the Police Directorate of 15 February 2017 concerning migrants who had been caught deep into Croatian territory. All police administrations had been instructed to escort irregular migrants, regardless of where they had been encountered, to the border police administration, which would take over the proceedings and examine the circumstances of their entry and stay. She reported that between 15 February and 24 November 2017 summary proceedings had been conducted in respect of 1,116 persons. Every summary proceedings case file inspected had contained the same expressions, for example that the person in question had not had visible injuries and had not complained about his or her condition of health, that he or she spoke Arabic and English, that an interpreter had not been available and so the person had been interviewed in English, and that the person had not requested asylum. The latter circumstance raised serious doubts that such summary proceedings had gone into the individual circumstances of the persons in question. Letter of 6 April 2018 to the Minister of the Interior and the Head of Police 105. On 6 April 2018 the Croatian Ombudswoman sent a letter to the Minister of the Interior and the Head of Police concerning the restriction of the first applicant’s and her children’s freedom of movement. She noted from the case file that the procedure had been conducted in English, which the first applicant did not understand, and that the interpreter had not signed the note on information concerning legal aid. She asked about the action taken to verify the applicants’ identity and nationality, which was the reason for their placement in the Tovarnik Centre, in particular because in situations concerning the return of aliens the police deemed it sufficient that the persons submit a “Statement on identity for foreigners without identification documents”. Letter of 18 April 2018 to the Minister of the Interior, the Minister of Health and the Head of Police 106. On 18 April 2018 the Croatian Ombudswoman sent a letter to the Minister of the Interior, the Minister of Health ( Ministar zdravstva Republike Hrvatske ) and the Head of Police concerning the visit by her representatives to the Tovarnik Centre on 26 March 2018. The Croatian Ombudswoman noted that, apart from the police officers who guarded the Tovarnik Centre, it lacked personnel to conduct activities with the persons placed there, especially with the children. She warned that there were no staff to provide food in and clean the Centre. The food had been ordered from local restaurants, and on the day of the visit all the persons held in the Tovarnik Centre, including two-year-old children, had been served with pizza, which was inappropriate nourishment for persons of their age. The Croatian Ombudswoman reported having received contradictory information concerning the possibility of the persons placed in the Tovarnik Centre to use outdoor facilities and rooms for daily activities. She warned that vulnerable persons, particularly children, should be granted constant access to fresh air, the library and open areas. She proposed providing the persons placed in the Centre with clothes and shoes, rather than leaving it to the NGOs to meet this need. She noted that medical assistance was not provided in the Tovarnik Centre, whereas according to the standards of the CPT, a medical officer should have been present in the Centre on a daily basis. She further asked to be informed about the reasons why lawyers and NGOs had allegedly been denied the opportunity to visit the Tovarnik Centre. The Croatian Ombudswoman noted that on the day of the visit it had been established that the persons placed in the Tovarnik Centre had had their mobile phones taken away from them and returned to them only occasionally. At the same time there had been no telephone available in the Centre for detainees to use to contact the outside world, or at least certain pre-designated persons or institutions. Finally, she warned the Ministry of the Interior not to use media coverage of the fact that she had been allowed to visit the Tovarnik Centre as proof that the police had been treating migrants well, because the inadequacy of the material conditions in the Centre had only come to light when her report had been published. Croatian Children’s Ombudswoman’s letters to the State authorities 107. On 10 April 2018 the Croatian Children’s Ombudswoman sent a letter to the Head of Police concerning the conditions under which families with children were being held in the Tovarnik Centre. She submitted that after visiting the Tovarnik Centre, her representative had concluded that it was inadequate for accommodating families with children, in that it entailed a limitation of freedom of movement, was not adequately equipped and there were no experts to provide psychosocial support. The Children’s Ombudswoman recommended that measures to ensure adequate conditions of placement for children be urgently taken, in accordance with the relevant international obligations. 108. In her letter to the Head of Police of 28 May 2018, the Croatian Children’s Ombudswoman stated that after visiting the Tovarnik Centre again on 2 May 2018 and talking with the families placed there, including the applicants, she had established that the conditions had improved: the rooms were clean, the external door were locked at midnight, all the persons placed in the Centre could use the entire space, including the playground for children and the sports courts. The children had been given toys and books in Farsi, a television showing children programmes and a table football game. There was a special room for changing nappies and children’s clothes, and the parents had been given baby food. However, she noted that most of the children had been unhappy because there was no possibility of schooling and there were no activities to structure their time. The children complained about bad food and the lack of fruit, vegetables and cooked meals. Some had health issues such as infections and allergies, and also psychological difficulties such as nightmares, phobias and sleep disorders. Although the persons held in the Centre had been provided with medical and dental care, as well as psychological support through weekly visits by the medical staff, social workers and a psychologist, the latter had been inefficient since there had been no interpreter present during the consultations. The Children’s Ombudswoman recommended the transfer of families with children to appropriate accommodation in which the children could benefit from such facilities as pedagogical support and instruction in the Croatian language, and where they would be able to express themselves and benefit from medical and psychological and legal support with the help of an interpreter. She concluded that although the conditions in the Tovarnik Centre had improved, they were not appropriate for the long-term accommodation of persons. No reasons had been given for the fact that such families as the applicants were being kept there for several months. Verification of the persons’ identities and their illegal crossing of the border could not justify long-term detention and restriction of freedom of movement for such vulnerable groups as families with children. Letter of 20 September 2018 from the Council of Europe Commissioner for Human Rights 109. On 20 September 2018 the Commissioner for Human Rights wrote to the Croatian Prime Minister, expressing concern regarding the reports from expert refugee and migrant organisations that provide consistent and substantiated information about a large number of collective expulsions from Croatia to Serbia and to Bosnia and Herzegovina of irregular migrants, including potential asylum-seekers. According to UNHCR, Croatia had allegedly collectively expelled 2,500 migrants since the beginning of 2018. Among them, 1,500 had reported having been denied access to asylum procedures, while 700 of those persons had reported violence and theft by law enforcement officers during summary expulsions. Concerns in this context had also been expressed by the Croatian Ombudswoman. The Croatian authorities were invited to initiate and carry out prompt, effective and independent investigations into all recorded cases of collective expulsions and of allegations of violence against migrants and to ensure that anyone who intended to make an asylum application was given access to a fair and effective procedure. Report of the fact-finding mission to Croatia by the Special Representative of the Secretary General on Migration and Refugees 110. On 23 April 2019 the Special Representative on Migration and Refugees published a report on his fact-finding mission to Croatia from 26 ‑ 30 November 2018. He noted that Croatia, which was responsible for a European Union external border on the Balkan route, had registered an increase in arrivals, with a total of 7,388 people registered in the first eleven months of 2018. However, the number of those remaining in the country was much lower: 352 asylum-seekers were accommodated in open reception centres in Croatia in November 2018. He further noted that in its attempts to thwart the unauthorised crossing of the European Union’s external border, and in view of preparations for entering the border-free Schengen area, since mid-2017 Croatia had been focusing on policies and measures to deter access to its territory and to return irregular migrants mainly to neighbouring countries, and that the implementation of these policies and measures had coincided with the emergence of reports of pushbacks, sometimes accompanied by violence, of migrants and refugees attempting to cross the border to Croatia. During his interviews in Croatia, the Special Representative heard witness statements concerning repeated attempts to enter Croatia and injuries caused by physical violence, dog bites, and gunshot wounds. UNHCR and other international organisations had reported alleged incidents of ill-treatment of asylum-seekers and refugees by the Croatian Border Police, resulting in physical injuries. Several videos allegedly recorded in September-October 2018 showed instances of summary returns. The Special Representative noted that since 2016, the Ministry of the Interior had received 193 complaints concerning allegations of ill-treatment at the border and of confiscation and destruction of possessions. Police inquiries had been made into these complaints but no violations of the law by the police forces had been found. At the same time, the investigation into the allegations had been hampered by the lack of information to identify the alleged victims and pinpoint the locus of the alleged ill-treatment, as well as by the difficulty of cross-checking data once the alleged victims had left Croatia. The Special Representative had not been informed of any practical steps taken to investigate those allegations, for example whether inquiries had been initiated by an authority independent from the police force or whether attempts had been made to identify or contact the alleged victims. As regards access to the territory, the Special Representative noted with concern the intimidation perceived by NGOs working with refugees and migrants when their members and volunteers had been apprehended or convicted for having supported this group of people, which support was classified as assistance in the illegal crossing of the border. The Croatian authorities had explained to the Special Representative that anyone who crossed the State border unlawfully was subject to an administrative procedure under the Aliens Act, with a view to their return. Once migrants were intercepted on Croatian territory, they were brought to the police station for identification and assessment of their needs in terms of protection. Refugees and migrants were asked, usually with the help of French or English interpretation, to fill in a form stating their identity and the circumstances of their illegal entry. If they expressed an intention to seek asylum, that fact was recorded in a database and the provisions of the International and Temporary Protection Act came into play. They were fingerprinted and redirected to reception or immigration detention centres. The Special Representative was told that many people preferred to withdraw their intention to seek asylum when informed of the role of fingerprinting under Eurodac, since they did not wish to stay in Croatia. In the absence of any intention to seek asylum, they were considered for voluntary removal or for immigration detention for the purposes of forced removal or taken immediately to the border to be handed over to the Bosnia and Herzegovina authorities under a readmission agreement. Despite the fairly effective legal framework for affording protection, the Special Representative had heard reports of cases where asylum claims had been overlooked by the police or where people had been returned without having been taken to a police station in order to verify their need for international protection. He also heard testimonies on cases in which oral interpretation was provided in English in the course of procedures even though the person concerned had insufficient knowledge of that language; all documents were served only in Croatian and the person was unaware of the possibility of obtaining legal aid. The Special Representative warned that the lack of interpretation in languages spoken by foreigners in police stations where foreigners were held for illegally crossing the border prevented or delayed the identification of people in need of international protection and their access to asylum procedures. The Special Representative noted that Croatia’s border control policies were characterised by a deterrent approach to the admission of migrants and refugees in the country, at the Croatian-Bosnian border in particular. He warned that in the absence of a physical barrier, the considerable technical and human resources deployed for border control should not be used to create obstacles to asylum for those who might be in need of international protection. The interception of migrants and refugees who were in Croatian territory but were then returned without the requisite administrative procedure raised questions as to the very essence of the right to seek asylum and respect for the principle of non-refoulement. Several detainees in the Ježevo Centre to whom the Special Representative had spoken reported that they had not had access to a lawyer or an interpreter and had not been apprised of why they were in detention. They showed documents in Croatian (decisions ordering their expulsion and detention) and asked the Special Representative to translate and explain their content. The Special Representative was informed that upon arrival everyone had received a list providing information on how to access legal aid; however, the people he spoke to did not appear aware of their rights to have a lawyer and to appeal to a court against the detention decision. During the Special Representative’s visit, he had noticed next to the pay telephones a paper on the wall with an NGO’s contact details. He did not notice any other publicly displayed information on access to asylum and legal assistance. The Special Representative noted that although the social welfare system was willing and able to accommodate unaccompanied children in their facilities, very few were detained in practice, but it was worrying that domestic legislation allowed for it. He pointed out that the situation of confinement of children should be addressed as a matter of urgency based on the principle that the best interests of the child should be the primary consideration, and that every effort should be made to avoid resorting to the deprivation of liberty of migrant and refugee children solely on grounds of their migration status. Developing effective alternatives to immigration detention should be a priority. The Special Representative recommended the following: “a. Call on the authorities to ensure the respect for the principle of non-refoulement by those guarding the borders; assist the authorities in providing continued training to those guarding the borders, including involved riot police, so as to ensure that they carry out their duties in compliance with the country’s human-rights obligations; and strengthen complaints mechanisms and the authorities’ capacity to conduct swift and effective investigations into allegations of shortcomings in this respect; b. Support the authorities in drafting and implementing minimum standards for conditions of reception and services for women and children, to ensure compliance with European human rights standards; c. Assist the authorities in developing and implementing a system of alternatives to immigration detention for families and other vulnerable groups; ...” Report on pushback policies and practice by the rapporteur of the Committee on Migration, Refugees and Displaced Persons of the Parliamentary Assembly of the Council of Europe 111. The rapporteur of the Parliamentary Assembly’s Committee on Migration, Refugees and Displaced Persons published a report on her fact ‑ finding mission to Croatia and Bosnia and Herzegovina from 26 ‑ 29 March 2019. The rapporteur was struck by the large discrepancies between the statements of the authorities and non-State actors like the Ombudswoman and NGOs. The authorities expressed mistrust of NGOs, seen as questioning unnecessarily the country’s border management, accusing the Croatian police of mistreatment where cases were extremely rare, and in some cases encouraging border crossing by illegal migrants. On the other hand, the findings of the Ombudswoman and NGOs “were so consistent and substantiated” that the rapporteur “had to take them seriously and investigate”. In this context, the Deputy Ombudswoman of Croatia had told the rapporteur about the high number of complaints (over 200) she had lodged with the Ministry of the Interior about alleged pushbacks and collective expulsions from Croatia to Bosnia and Herzegovina but also from Croatia to Serbia. Only 1% of them had been declared admissible, which caused the Ombudswoman concerns about the level of independence with which the complaints are being dealt. The rapporteur’s meeting with the Deputy Ombudswoman of Croatia “corroborated, notably, the conclusions of the Council of Europe Human Rights Commissioner concerning increasing (administrative and other) obstacles facing human rights defenders and NGOs dealing with migrants in many parts of Europe”. For instance, the National Preventive Mechanisms in place since June 2018 required advance written requests from the Ombudsperson’s office to consult specific police records rather than holding database information available without restrictions. Lawyers and NGOs were seeing their access to persons in need of assistance reduced and their presence resented, if not hampered, by the authorities. According to the rapporteur, these restrictions illustrated that it had become more difficult to reach out to migrants in need of help or to monitor border practices, and that the democratic space was progressively shrinking. The rapporteur had met with the NGOs Centre for Peace Studies and Are You Syrious, which provided legal assistance and other services to migrants. Lawyers funded by UNHCR visited camps for two hours per week. Between April and October 2017, NGOs had escorted 300 people to the Croatian border who had asked for their support, announcing their arrival to the police, but this had been stopped as it gave asylum-seekers false hopes of receiving protection. These organisations had received many testimonies about pushbacks, a significant part accompanied by violence. The rapporteur reported that all non-State actors she had interviewed had informed her about many other cases in which detected migrants had reported not being sent to a police station, but being immediately taken to the border or far inland within Bosnian territory, implying that no access to an asylum procedure was offered and official return procedures were circumvented. In some cases, this happened even with migrants who were found in the north of Croatia, sometimes after a formal readmission procedure applied by the Slovenian authorities. An element that appeared to be structural, especially in those informal procedures, was the brutal way pushbacks were carried out. Respondents referred to several documentaries in which the Croatian authorities had been shown mistreating groups of migrants, among them women and minors, while directing them to Bosnian territory. This was also confirmed by the mayor of the Bosnian city of Bihać, Mr Š.F., who claimed he had been confronted with special units of the Croatian authorities in the forests within Bosnian territory, forcing migrants to walk. Report by Amnesty International “Pushed to the edge: Violence and abuse against refugees and migrants along the Balkans Route” 112. The Amnesty International report of 13 March 2019 was based on research carried out between June 2018 and January 2019. It found that systemic and deliberate pushbacks and collective expulsions – sometimes accompanied by violence and intimidation – were a regular occurrence at the border between Croatia and Bosnia and Herzegovina. Among the ninety-four refugees and migrants stranded in the temporary accommodation camps in Bihać and Velika Kladuša who were interviewed, nearly all confirmed that they had been returned from Croatia, often several times and after having been held in police stations deep inside Croatian territory, without due process and without access to asylum procedures. Many had made several unsuccessful attempts to reach Schengen borders only to encounter Croatian police who promptly returned them to Bosnia and Herzegovina without registering their asylum claims. Those intercepted in Croatian territory were told that “there was no asylum in Croatia”, shouted at and frequently beaten and detained for hours without food or water, before being transported in overcrowded, windowless and poorly ventilated police vans and dropped off at the Bosnian border. One third of those interviewed had experienced violence at the hands of the Croatian police. Others reported how Croatian police took their shoes, warm clothes and sleeping bags and forced them to walk barefoot for kilometres through freezing rivers and streams towards the Bosnian border. These returns regularly took place at night and in remote areas outside of the regular border crossings and without the presence of Bosnian border guards. Amnesty International reported that the accounts of returns cited above indicated that pushbacks and collective expulsions to Bosnia and Herzegovina of persons irregularly entering Croatia were widespread and were carried out summarily, without any of the guarantees required by international and EU law. Judgment of the Federal Administrative Court of Switzerland of 12 July 2019 113. On 12 July 2019 the Federal Administrative Court of Switzerland suspended the transfer of a Syrian asylum-seeker to Croatia under Dublin Regulation 604/2013 because of the prevalence of summary returns at the Croatian border with Bosnia and Herzegovina. The court acknowledged the increasing number of reports that the Croatian authorities were denying access to asylum procedures and that large numbers of asylum-seekers were being returned to the border with Bosnia and Herzegovina, where they were forced to leave the country. Report by the United Nations Special Rapporteur on the human rights of migrants 114. On 1 October 2019 the UN Special Rapporteur on the human rights of migrants, having visited Bosnia and Herzegovina between 24 September and 1 October 2019, reported having received reliable information about violent pushbacks of migrants and asylum-seekers by Croatian border police into the territory of Bosnia and Herzegovina. According to the testimonies he received, many migrants were forcibly escorted back to Bosnia and Herzegovina without going through any official procedure. The concrete tactics varied; however, common patterns included the capture of people on the move, confiscation of their property, especially communication equipment, beating with batons and chasing by dogs with the purpose of physically exhausting them and preventing them from attempting another crossing. The Special Rapporteur noted that abusive actions by the Croatian border police clearly violated the human rights of these individuals and in reality did not deter people on the move from advancing towards the European Union territory, but instead led to a flourishing network of smugglers and organised criminal activities, which required immediate attention and action by all countries in the region. Statement of 21 October 2020 by the Council of Europe Commissioner for Human Rights 115. In her statement “Croatian authorities must stop pushbacks and border violence, and end impunity” published on 21 October 2020 following reports she had received of new allegations of collective expulsions of migrants, denial of access to asylum and extreme violence by Croatian law enforcement used in this context, the Commissioner stressed that these new and disturbing reports suggested that violence and dehumanising acts during pushbacks were increasing, and that it seemed that Croatian law enforcement officers continued to enjoy impunity for such serious human rights violations. The Commissioner was also concerned that the Croatian government’s reaction had been to dismiss reports published by NGOs or resulting from investigative journalism. She reiterated her call for the Croatian authorities to stop pushbacks and border violence and eradicate impunity for serious human rights violations committed against migrants by law-enforcement officers. She called on the Croatian authorities to publish the report by the CPT on its rapid reaction visit to Croatia in August 2020 as soon as possible after its adoption. OTHER RELEVANT MATERIAL 116. On 6 January 2016 the Afghan Translation Service published an article “The Challenge of Translating Afghan Government Issued Documents”. It was noted that the war had dispersed Afghans across continents where they have to prove their identity. There were numerous problems with the documents issued by the government in Afghanistan; they were all handwritten, none were digital and there was no uniformity between the government-issued citizenship ID documents. The challenge of authenticating such documents was an issue for the translating agencies. THE LAW PRELIMINARY REMARKS 117. In several letters submitted in connection with application no. 15670/18 between 17 July 2018 and 8 March 2019, the Government referred to the applicants’ departure from Croatia and, while not requesting the striking-out of the case, referred to the case of V.M. and Others v. Belgium ((striking out) [GC], no. 60125/11, 17 November 2016). 118. The applicants’ lawyer replied that she was in contact with the applicants through the fourth applicant, who had sent her Viber messages on 17 and 20 July 2018 confirming that they wished to pursue their case before the Court. On 22 March 2019 she submitted a written statement signed by the first to fourth applicants on 20 March 2019, confirming that the family wished to pursue their case before the Court. 119. In a letter submitted in connection with application no. 43115/18, the Government objected that the authority form attached to the application was not signed by the applicants. In reply, the applicants’ lawyer submitted authorisations signed on 2 June 2020 by the first to fourth applicants to act on behalf of the family in the case. 120. In view of these circumstances, the Court will first examine whether it is necessary to continue the examination of the applications in the light of the criteria set forth in Article 37 of the Convention (see N.D. and N.T. v. Spain [GC], nos. 8675/15 and 8697/15, § 71, 13 February 2020). 121. In the case of V.M. and Others v. Belgium (cited above), the Court specified, in the light of Article 37 § 1 (a), that an applicant’s representative not only had to supply a power of attorney or written authority (Rule 45 § 3 of the Rules of Court), but that it was also important that contact between the applicant and his or her representative be maintained throughout the proceedings, both in order to learn more about the applicant’s particular circumstances and to confirm the applicant’s continuing interest in pursuing the examination of his or her application. 122. The Court considers that in the present case there is no reason to doubt the validity of the powers of attorney or the credibility of the information provided by the applicants’ lawyer as to the truth of her contact with the applicants (compare Asady and Others v. Slovakia, no. 24917/15, §§ 37-42, 24 March 2020). 123. In any event, the Court considers that special circumstances relating to respect for human rights as defined in the Convention and the Protocols thereto require it to continue the examination of the applications in accordance with Article 37 § 1 in fine of the Convention. Indeed, the present case raises several important issues in terms of immigration control by the Croatian authorities. The participation of five third parties testifies to the public’s interest in the case. The impact of this case thus goes beyond the particular situation of the applicants (see N.D. and N.T. v. Spain, cited above, § 78). JOINDER OF THE APPLICATIONS 124. Having regard to the intertwined subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 125. The applicants complained that the State had been responsible for the death of MAD.H., and that in the ensuing criminal investigation all the relevant facts concerning her death had not been properly established. They relied on Article 2 of the Convention, the relevant part of which reads as follows: “1. Everyone’s right to life shall be protected by law ...” 126. The Court will first look into the manner in which the authorities investigated the applicants’ allegations concerning the death of MAD.H. on 21 November 2017. Procedural obligation under Article 2 of the ConventionAdmissibility Admissibility Admissibility (a) Compatibility ratione loci of the complaint 127. Although the Government made no plea as to the Court’s competence ratione loci to examine the present complaint against Croatia in view of the fact that MAD.H. was hit by a train in the territory of Serbia (see paragraph 151 below), the Court will examine this question of its own motion. 128. In the case of Güzelyurtlu and Others v. Cyprus and Turkey ([GC], no. 36925/07, 29 January 2019), the Court set out the principles concerning the existence of a “jurisdictional link” for the purposes of Article 1 of the Convention in cases where the death occurred outside the territory of the Contracting State in respect of which the procedural obligation under Article 2 of the Convention was said to have arisen (ibid., §§ 188-90). 129. Applying those principles to the present case, the Court firstly observes that according to the criminal complaint lodged by the applicants, MAD.H.s’ death had allegedly been caused by the actions of the Croatian police undertaken within Croatian territory (see paragraph 10 above). Accordingly, under their domestic law which applies the principle of ubiquity (see paragraph 77 above), regardless of the fact that the death of MAD.H. had occurred in the territory of Serbia, the Croatian authorities were under the obligation to conduct a criminal investigation in order to examine the liability of the Croatian police officers for her death, which they did (see paragraphs 10-27 above and compare Güzelyurtlu and Others, cited above, §§ 188, 191 and 196, and Isaksson and Others v. Sweden, (dec.), no. 29688/09 et al., §§ 51 and 55, 8 March 2016). Lastly, the Court observes that the Croatian Constitutional Court raised no questions as to its own jurisdiction to examine the compliance of the domestic authorities with their procedural obligation under Article 2 of the Convention concerning MAD.H.’s death (see paragraphs 24 and 27 above). 130. In these circumstances, the Court finds that there was a “jurisdictional link” between the applicants, with respect to their complaint under the procedural limb of Article 2 concerning MAD.H.’s death, and Croatia. 131. The Court therefore finds that the applicants’ complaint against Croatia is compatible ratione loci with the provisions of the Convention. (b) Non-exhaustion of domestic remedies 132. The Government submitted that the present case was similar to that of M.M. v. Croatia ((dec.), no. 4955/15 of 22 October 2019), where the Court had held that the applicant could have recourse to the Court only after the domestic proceedings directed towards rectifying any possible violation of Article 2 of the Convention had come to an end. Furthermore, they argued that the complaint was premature as the applicants had brought it to the Court before the Constitutional Court had had an opportunity to examine it. 133. The applicants submitted that they had exhausted the domestic remedies for their complaint. 134. In so far as the Government’s reference to the case of M.M. v. Croatia (cited above) could be understood as an argument that the applicants had failed to exhaust domestic remedies in that they had never brought a civil action for damages against the State in relation to the events in issue, the Court notes that the said case concerned the applicant’s allegation that the police had not taken all reasonable and adequate steps in order to prevent the killing of his wife and mother perpetrated by his son (ibid.). The present case, on the other hand, concerns the allegation that the Croatian police officers had put the first applicant and her children in a dangerous situation, which resulted in one of the children tragically dying. 135. In that connection, the Court reiterates that even in cases of non ‑ intentional interferences with the right to life or physical integrity, there may be exceptional circumstances where an effective criminal investigation is necessary to satisfy the procedural obligation imposed by Article 2 (see Lopes de Sousa Fernandes v. Portugal [GC], no. 56080/13, § 215, 19 December 2017). Such circumstances can be present, for example, where a life was lost or put at risk because of the conduct of a public authority which goes beyond an error of judgment or carelessness, or where a life was lost in suspicious circumstances or because of the alleged voluntary and reckless disregard by a private individual of his or her legal duties under the relevant legislation (see Nicolae Virgiliu Tănase v. Romania [GC], no. 41720/13, § 160, 25 June 2019, and the cases cited therein). In Öneryıldız v. Turkey ([GC], no. 48939/99, § 93, ECHR 2004 ‑ XII), the Court held that where it was established that the negligence attributable to State officials or bodies had gone beyond an error of judgment or carelessness, in that the authorities in question, fully realising the likely consequences and disregarding the powers vested in them, had failed to take measures that were necessary and sufficient to avert the risks inherent in a dangerous activity, the fact that those responsible for endangering life had not been charged with a criminal offence or prosecuted could amount to a violation of Article 2, irrespective of any other types of remedy which individuals could pursue on their own initiative. 136. In the present case, while it is not for the Court to assess the liability of police officers for the death of MAD.H., it notes that the police actions which allegedly immediately preceded her death might have involved a deliberate disregard of the relevant rules on access to asylum procedures (see paragraph 78 above, sections 33 and 59 of the International and Temporary Protection Act; see also Articles 6 and 8 of the relevant European Union Directive cited in paragraph 86 above, and Article 22 of the United Nations Convention on the Rights of the Child, paragraphs 89 and 90 above), or at the very least a disregard of the readmission agreement between Croatia and Serbia on the safe return of migrants unlawfully entering the country (see paragraph 80 above), despite the obvious risks involved in view that it was night-time in the winter and that there were several children present in the group aged one, two, six, nine and fourteen at the time (see, mutatis mutandis, Sinim v. Turkey, no. 9441/10, § 63, 6 June 2017, see also the third-party submissions outlined in paragraphs 144-147 below). 137. In these circumstances the Court considers that the procedural obligation imposed by Article 2 required that a criminal investigation be opened, also having regard to the fact that the situation could have given rise to criminal liability on the part of the police officers involved. 138. Accordingly, the applicants’ complaint cannot be rejected on the grounds that they did not institute civil proceedings for damages against the State. 139. The Court further notes that the Constitutional Court twice examined the merits of the applicants’ complaint concerning the ineffectiveness of the investigation into MAD.H.’s death and found that there had been no breach of Article 2 of the Convention in its procedural limb (see paragraphs 24 and 27 above). The Court has previously accepted that the last stage of a particular remedy may be reached after the application has been lodged but before its admissibility has been determined, as is the situation in the present case (see Karoussiotis v. Portugal, no. 23205/08, § 57, 1 February 2011, and Şahin Alpay v. Turkey, no. 16538/17, § 86, 20 March 2018). 140. The Court is therefore satisfied that the applicants brought their grievances before the domestic authorities, affording those authorities the opportunity of putting right the alleged violation of the Convention. It follows that the Government’s objection must be dismissed. (c) Conclusion 141. The Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. Merits (a) The parties’ arguments (i) The applicants 142. The applicants contended that the Croatian authorities ought to have investigated MAD.H.’s death on their own initiative immediately after being apprised of the circumstances. The authorities ignored the evidence on the basis of which it had been possible to establish that the first applicant and her six children had entered Croatian territory, and that the police had apprehended and returned them to the border with Serbia. The applicants had not had an effective opportunity to participate in the investigation. Even though the investigation had been initiated following the criminal complaint lodged by their lawyer S.B.J. on their behalf, the investigating authorities had excluded S.B.J. from the investigation, and they had not been allowed to meet her until 7 May 2018. (ii) The Government 143. The Government submitted that the investigation into the circumstances of MAD.H.’s death had complied with all the requirements of Article 2 of the Convention. Independent investigating authorities had promptly undertaken all actions with a view to verifying any causal link between the conduct of the Croatian border police officers and MAD.H.’s death. They gathered all documents, heard all witnesses and obtained documents from the Serbian authorities which had conducted an on-site inspection. The applicants’ statements given in the investigation had been contradictory. Moreover, had they not left Croatia several months after lodging their criminal complaint, they could have contributed to the investigation by proposing evidence and pointing to possible failures. In their application to the Court the applicants had not pointed to a single piece of evidence which the authorities had failed to obtain. They were merely dissatisfied with the outcome of the investigation. (b) The third-party interveners (i) The Centre for Peace Studies 144. The Centre for Peace Studies submitted that, since 2016, Croatian authorities had been conducting collective expulsions of migrants without any identification or registration of the persons intercepted, access to a lawyer and interpreter or access to asylum procedure. A large majority of reported cases involved persons being ordered to cross the border to Serbia and Bosnia and Herzegovina, thus being forced to swim through rivers and pass through mountains or exposed to other dangerous situations. In 2019 the Croatian Ombudsperson for Children had received several complaints concerning unlawful expulsions of children at the borders with Serbia and Bosnia and Herzegovina. These expulsions were in breach of the children’s right to seek asylum, and in complete denial of their best interests as extremely vulnerable persons. There had been no effective investigation into allegations of illegal practices of the Croatian police against migrants. (ii) The Belgrade Centre for Human Rights 145. The Belgrade Centre for Human Rights referred to its joint report with the International Aid Network entitled “Documenting abuse and collective expulsions of refugees and migrants”, containing testimonies of collective expulsions and ill-treatment by Croatian officials in 2017. Most of the migrants interviewed had told similar stories: after crossing into Croatian territory though fields or forests, they had been spotted by Croatian officials, put into vans, transported to a place where they had been beaten, and later been pushed back to Serbia. Several persons reported that they had been taken near the railway line and told to return to Serbia by following the train tracks. Another field mission undertaken in 2019 had confirmed that such practices had continued in 2019. (iii) Rigardu e.V. 146. Rigardu e.V. referred to its report of July 2017 containing testimonies of violent pushbacks from Croatia to Serbia gathered during its field work in Šid, Serbia, from 31 May to 13 July 2017. The circumstances in which these pushbacks had been carried out – in the middle of the night, outside official border crossings, in dangerous terrains and without notification of the authorities of the country to which the migrants were being returned – demonstrated that Croatian officials were systematically putting migrants’ lives in danger. There was a systemic lack of an adequate response by the Croatian authorities regarding allegations of illegal and violent pushbacks, despite numerous reports and evidence in that regard. When it came to deaths and severe injuries, the investigating authorities should not predominantly rely on statements of officials implicated in the incidents, and testimonies of migrants should not be easily discredited on account of the linguistic challenges and their limited opportunities to gather and provide evidence. (iv) The Asylum Protection Center 147. The Asylum Protection Center submitted that, since 2016, numerous NGOs in the Western Balkans had reported widespread practices of unlawful and violent expulsions of migrants from Croatia to Serbia and Bosnia and Herzegovina. Such returns were being conducted outside official border crossings and without any prior notification of the authorities of the country to which the migrants were being returned, and thus in breach of the readmission agreements. The police usually ordered migrants to follow railways or roads, or cross rivers, as a result of which many of them had sustained accidents and died. (c) The Court’s assessment (i) General principles 148. The general principles applicable in a situation where an effective criminal investigation is necessary to satisfy the procedural obligation imposed by Article 2 (see paragraph 137 above) have been summarised in Nicolae Virgiliu Tănase (cited above, §§ 164-71). (ii) Application of the above principles to the present case 149. The present case concerns the death of a six-year-old migrant child, MAD.H., who was hit by a train after allegedly being denied the opportunity to seek asylum by the Croatian police officers and ordered to return to Serbia by following the train tracks. 150. In such circumstances and having in mind the fundamental importance of the right to life guaranteed under Article 2 of the Convention, the Court must apply careful scrutiny when examining whether the particular investigation satisfied all the guarantees required by the Convention. 151. The Court notes that MAD.H. was hit by a train at around 8 p.m. on 21 November 2017 in the territory of Serbia, some 200 metres from the border with Croatia. Her death was heavily covered by the national and international media. The key elements in the ensuing investigation were establishing the exact whereabouts of, and contact between, the first applicant and her children and the Croatian police officers on that date, and verifying allegations of pushbacks and deterrent practices allegedly used by the Croatian authorities in the present case. 152. The domestic authorities concluded that the first applicant and her children had never entered Croatian territory and that the police officers had not had any direct contact with them prior to the train hitting the child in Serbia. In so doing they relied on the statements of the police officers on duty on 21 November 2017, which were deemed concurring, whereas the statements of the first, second and thirteenth applicants were deemed contradictory as regards the crucial facts (see paragraphs 19 and 21 above). In particular, the second applicant stated that he had been with the group at the material time, whereas according to the first applicant and the Serbian police reports, the second applicant had stayed in Serbia. 153. In the circumstances of the case, the Court does not see why the latter discrepancy was given such crucial importance. The authorities did not consider the possibility that it could have been the result of a translation error during the first and second applicants’ hearing on 31 March 2018 (see paragraph 16 above), nor has it ever been disputed that the first applicant remained with the children throughout. It was also not disputed that the thirteenth applicant had been present, who on the night of the accident had told the Serbian authorities that he and his family had been walking in Croatian territory when the police had made them board a van, transported them to the border and told them to return to Serbia by following the train tracks (see paragraph 18 above). 154. On the other hand, the domestic authorities in no way addressed the change in the police officers’ statements during the investigation. In particular, on 22 November 2017 the police officers submitted that they had not had any contact with the first applicant or her children before the train hit MAD.H, but had merely spotted them inside Serbian territory and had then heard a train passing (see paragraph 11 above), whereas on 9 February 2018 they submitted that they had gone to the border and had signalled to the applicants not to cross it (see paragraph 13 above). 155. Moreover, the police officers submitted that, after the train accident, they had transported the mother and the child to the railway station, while the rest of the group had stayed at the border (ibid.). This appears to be contrary to the statement of the doctor who intervened after the accident and who submitted that at the railway station she had seen a group of migrants in the police van, and next to it a man holding a child (see paragraph 11 above). The domestic authorities did not address this discrepancy either. 156. The Court further notes that no material evidence was obtained which could have confirmed beyond any doubt the applicants’ and the Croatian police officers’ exact whereabouts on the evening of 21 November 2017. The police had informed the Vukovar County State Attorney’s Office that the recordings of the thermographic cameras could not be submitted because the storage system had been broken at the material time, whereas police officer D. stated that it had been broken for one year before the event (see paragraph 15 above). 157. The case file does not show whether the investigating authorities ever verified the allegation that the storage system had indeed been broken and that there had been no recordings of the impugned events, as proposed by the applicants (see paragraph 20 above). When the applicants’ lawyer raised the issue of the “loss” of the recordings, she received a reply that she did not have a power of attorney to represent the applicants (see paragraph 17 above). 158. Furthermore, in January 2018 the Croatian Ombudswoman suggested that the contact between the applicants and the police be established by inspecting the signals from their mobile telephones and the police car GPS (see paragraph 12 above). The applicants also proposed obtaining such GPS locations in order to prove that they had been in Croatian territory before the train accident (see paragraph 20 above). In the circumstances, this appeared to be an obvious item of material evidence which could have elucidated the sequence of events (compare Sergey Shevchenko v. Ukraine, no. 32478/02, §§ 72-73, 4 April 2006, and Oğur v. Turkey [GC], no. 21594/93, §§ 89-90, ECHR 1999 ‑ III). However, neither the Office for the Suppression of Corruption and Organised Crime, nor the Osijek County Court’s investigating judge or the appeal panel addressed these proposals (see paragraphs 19 and 21 above). 159. The Court further notes that the investigating authorities did not address the Serbian authorities’ finding that the Croatian authorities had forcefully returned the first applicant and her children to Serbia on 21 November 2017 in breach of the readmission agreement between the two countries (see paragraphs 20 and 25 above). 160. Moreover, even though the investigation into the circumstances of MAD.H.’s death was initiated following a criminal complaint lodged by the lawyer S.B.J. on the applicants’ behalf, the investigating authorities did not inform her about the hearing of the first and second applicants on 31 March 2018 (see paragraph 16 above), where she could have helped clarify the alleged inconsistency in their statements. 161. The Court notes in that connection that, although doubts concerning the validity of her power of attorney may have arisen on 23 March 2018 (see paragraphs 49 above and 326 below), they were removed on 28 March 2018 (see paragraphs 58-59 above and 327 below), and at the latest on 31 March 2018 (see paragraphs 16 above and 328 below). Moreover, the authorities must have known that S.B.J. had meanwhile lodged a request for an interim measure with the Court on the applicants’ behalf (see paragraph 67 above). Nevertheless, on 19 April 2018 the investigating authorities refused to provide S.B.J. with information regarding the investigation, or to take into account her proposals concerning material evidence (see paragraph 17 above), and the applicants were allowed to meet with her only on 7 May 2018 (see paragraphs 66 above and 329 below). 162. Having regard to the fact that the applicants are an Afghan family with no knowledge of the Croatian language or legal system and no contacts in Croatia, it is hard to imagine how they could have effectively participated in the investigation without the assistance of a lawyer. In these circumstances, the investigative authorities failed to ensure that the applicants, as MAD.H.’s next-of-kin, were involved in the procedure to the extent necessary to safeguard their legitimate interests (compare Benzer and Others v. Turkey, no. 23502/06, § 193, 12 November 2013, and Mezhiyeva v. Russia, no. 44297/06, § 75, 16 April 2015). 163. In view of the above-mentioned deficiencies, the Court concludes that the State authorities failed to conduct an effective investigation into the circumstances leading to MAD.H.’s death on 21 November 2017. 164. There has accordingly been a violation of Article 2 of the Convention under its procedural limb. Substantive obligation under Article 2 of the Convention 165. On the basis of the material available in the case file, the Court considers that it is not in a position to reach any definitive findings under the Convention with regard to the alleged responsibility of the respondent State for the death of MAD.H. For that reason the Court has decided to confine its examination to an assessment of whether the domestic investigation was in compliance with the relevant standards under the procedural limb of Article 2 (see, mutatis mutandis, Sakvarelidze v. Georgia, no. 40394/10, § 50, 6 February 2020). In deciding not to make a separate assessment of the admissibility and merits of this part of the complaint, the Court has had particular regard to the continuing obligation of the domestic authorities under Article 2 of the Convention to carry out an effective investigation into alleged breaches of the substantive limb of that Article in order not to allow life-endangering offences to go unpunished (see Žarković and Others v. Croatia (dec.), no. 75187/12, § 23, 9 June 2015), and the possibility for the domestic authorities to resume the investigation into the applicants’ allegations (compare Kušić v. Croatia (dec.), no. 71667/17, §§ 50 and 97, 10 December 2019), since the statutory limitation period for prosecution has not yet expired. 166. Accordingly, the Court shall not examine this complaint. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 167. The applicants complained that the conditions of their placement in the Tovarnik Centre had been in breach of Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” AdmissibilityThe parties’ submissions The parties’ submissions The parties’ submissions 168. In their observations of 29 June 2018 in connection with application no. 11570/18, the Government contended that the complaint was premature because on 6 April 2018 the applicants had also brought it before the Constitutional Court. 169. The applicants replied that they had lodged their application with the Court on 16 April 2018 because they had been invited to do so following the issuing of the interim measure by the Court. The Court’s assessment 170. The Court notes that on 18 December 2018 the Constitutional Court examined the applicants’ complaint concerning their placement in the Tovarnik Centre and found no violation of Article 3 of the Convention in that regard (see paragraph 45 above). On 11 July 2019 it conducted another review of the conditions of the applicants’ placement in the Tovarnik Centre and found no breach of Article 3 of the Convention (see paragraph 46 above). 171. Accordingly, the Court concludes that the Constitutional Court was afforded an opportunity to examine the applicants’ complaint and that the Government’s objection must be dismissed. 172. The Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. MeritsThe parties’ submissions The parties’ submissions The parties’ submissions (a) The applicants 173. The applicants submitted that in the Tovarnik Centre they had been kept in prison-like conditions. Initially, the rooms in which they had been placed had been locked all day long and they were able to see each other only during meals. The children had not been allowed to use the playroom, or any toys, colouring books or similar items shown by the Government in the photographs, and they were allowed to use the outdoor facilities for only one or two hours per day. Towards the end of their stay the regime had changed a little, but there had still been no means of structuring their time. 174. The applicants further submitted that in the Tovarnik Centre they had been visited by a psychologist, who had been unable to help them in any meaningful way because there was no interpreter present. The fourth and thirteenth applicants had borne the burden of interpreting for the rest of the family during the treatment. Even in those circumstances the psychologist had concluded that the applicants were in a poor psychological state. Most of the child applicants had developed psychosomatic disorders owing to exposure to stressful situations and unfavourable living conditions. 175. The applicants lastly submitted that they were in a state of fear and confusion because the authorities had placed them in the Tovarnik Centre without providing them with any information concerning their situation. They had been given documents to sign in a language they did not understand and had been prevented from contacting their lawyer, S.B.J. (b) The Government 176. The Government submitted that the conditions of the applicants’ placement in the Tovarnik Centre had complied with the standards of the CPT and Article 3 of the Convention. 177. The Tovarnik Centre was a closed-type centre located in a small town, far away from any source of noise or pollution. There was no public address system in the Centre, as this could potentially scare small children, and there was practically no noise. The Centre was newly built, having opened on 1 April 2017, and its main purpose was to accommodate aliens and asylum-seekers whose freedom of movement had been restricted. It could accommodate sixty-two persons, and at the material time there had been twenty-six persons placed there (the fourteen applicants and another Afghan family of twelve). It was fully equipped to accommodate families with small children. There were bedrooms for families with children and a children’s playroom equipped with toys and books. There was a restaurant, a room for socialising and a basketball, football and handball court outside the building, as well as a children’s playground. As of 16 May 2018, the child applicants had been provided with various leisure and educational activities carried out by the Jesuit Refugee Service NGO. 178. The Government submitted photographs of the Tovarnik Centre showing the facility as newly built, dry, freshly painted, clean and furnished. The photographs showed that there were barriers in the hallways which could be locked and that the entire centre was surrounded by a wall. The photographs indicated that the applicants could open the windows in their rooms to let in air and light, the windows had bars on them and the doors to the rooms had a glass opening through which it was possible to see from the hallway into the room. There were also bars on the windows in the toilets, bathrooms and common rooms. The Centre was guarded by police officers who were posted outside the Centre, at the entrance and beside the doors to each floor but, according to the Government, the applicant children had not felt intimidated by them. 179. The Government submitted that the applicants had been placed in the Centre in three adjoining rooms. The doors to the rooms in which they had been placed had been open all the time. Initially the Government had submitted that the applicants had been allowed to use the outdoor facilities for two hours in the morning and two hours in the afternoon, but they subsequently rectified their statement, explaining that in fact they had been allowed to use the outdoor facilities and playground from 8 a.m. to 10 p.m. 180. Immediately after their arrival the applicants had been provided with clean clothes, underwear, toiletries and material required for childcare. They had been provided with medical assistance on 42 occasions, mainly at their request, and had been regularly examined by a psychologist. The Government observed that the applicants had been in a situation of uncertainty ever since they had started their journey to Europe in 2016, and that their placement in the Tovarnik Centre had not particularly exacerbated their state. 181. During their stay in the Tovarnik Centre the applicants had been allowed to use their mobile phones. They had been in contact with the lawyers I.C. and S.B.J. and had been visited by various NGOs, UNHCR, the Red Cross, the Croatian Ombudswoman and the Croatian Children’s Ombudswoman, none of whom had had any significant objections to their accommodation. Third-party intervener - Hungarian Helsinki Committee 182. The Hungarian Helsinki Committee submitted that under the Court’s case-law, the extreme vulnerability of children was a decisive factor, which took precedence over their status as illegal immigrants. States therefore had a duty, as part of their positive obligations under Article 3 of the Convention, to protect them and adopt appropriate measures to this end. Article 3 made no provision for exceptions, and States were required to pay extreme care and due consideration to the best interests of children in a migratory context, owing to their inherent vulnerability. Asylum-seeking children, whether accompanied or not, were likely to be a particularly underprivileged and vulnerable group in need of special protection. Careful assessment of the best interests of the child was therefore a prerequisite for the State in order to avoid breaching its positive obligations under Article 3. The installation of playgrounds, child-friendly rooms and colourful pictures on the walls could not satisfy those legal requirements. Detention, especially when accompanied by substandard conditions, could easily render the enjoyment of those rights illusory. No child could make use of her or his rights in an environment that was a constant source of anxiety and psychological disturbance and deteriorated the parental image in the eyes of the children, which was a particularly traumatic experience. Being confined to a guarded institution, where the level of surveillance was high and the whole of everyday life strictly controlled, could be perceived by children as a never-ending state of despair, which could in itself breach Article 3 of the Convention. The Court’s assessment (a) General principles 183. The general principles applicable to the treatment of persons held in immigration detention were set out in the case of Khlaifia and Others v. Italy ([GC], no. 16483/12, §§ 158-67, 15 December 2016). 184. It should be noted that the confinement of minors raises particular issues in that regard, since children, whether accompanied or not, are considered extremely vulnerable and have specific needs related in particular to their age and lack of independence, but also to their asylum‑seeker status (see Popov v. France, nos. 39472/07 and 39474/07, § 91, 19 January 2012; A.B. and Others v. France, no. 11593/12, § 110, 12 July 2016; and R.R. and Others v. Hungary, no. 36037/17, § 49, 2 March 2021). Article 22 § 1 of the United Nations Convention on the Rights of the Child encourages States to take appropriate measures to ensure that children seeking refugee status, whether or not accompanied by their parents or others, receive appropriate protection and humanitarian assistance (see paragraph 89 above, and see also S.F. and Others v. Bulgaria, no. 8138/16, § 79, 7 December 2017). Likewise, the European Union directives regulating the detention of migrants adopt the position that minors, whether or not they are accompanied, constitute a vulnerable category requiring the special attention of the authorities (see paragraph 87 above). Moreover, the Court already held that the extreme vulnerability of children – whether or not they were accompanied by their parents – was a decisive factor that took precedence over considerations relating to the child’s status as an illegal immigrant (see G.B. and Others v. Turkey, no. 4633/15, § 101, 17 October 2019). 185. Accordingly, the reception conditions for children seeking asylum must be adapted to their age, to ensure that those conditions do not create for them “a situation of stress and anxiety, with particularly traumatic consequences” (see Tarakhel v. Switzerland [GC], no. 29217/12, § 119, ECHR 2014 (extracts)). Otherwise, the conditions in question would attain the threshold of severity required to come within the scope of the prohibition under Article 3 of the Convention (ibid.). 186. In recent years the Court has in several cases examined the conditions in which accompanied minors were held in immigration detention. In finding a violation of Article 3 of the Convention in those cases, the Court had regard to several elements such as the age of the children involved, the length of their detention, the material conditions in the detention facilities and their appropriateness for accommodating children, the particular vulnerability of children caused by previous stressful events and the effects of detention to the children’s psychological condition (see S.F. and Others, cited above, §§ 79-83, and the cases referred to therein; see also G.B. and Others, cited above, §§ 102-17; and R.R. and Others, cited above, §§ 58-65). (b) Application of these principles in the present case (i) Preliminary remarks 187. The Court notes that the domestic courts, including the Constitutional Court, examined the conditions of the applicants’ placement in the Tovarnik Centre and found that they were Article 3 compliant (see paragraphs 45-46 above). 188. In this connection, the Court’s approach in examining the applicants’ complaint must be guided by the principle, stemming from Article 1 of the Convention, according to which the primary responsibility for implementing and enforcing the guaranteed rights and freedoms is laid on the national authorities. The machinery of complaint to the Court is subsidiary to national systems safeguarding human rights. It is not the Court’s task to substitute its own assessment of the facts for that of the domestic courts. The Court must be satisfied, however, that the assessment made by the authorities of the Contracting State is adequate and sufficiently supported by domestic materials, as well as by materials originating from other reliable and objective sources (see Ilias and Ahmed v. Hungary [GC], no. 47287/15, § 150, 21 November 2019). 189. The Court further notes that the applicants had no identity papers and that different information was given on their exact age. The fact that the fifth to fourteenth applicants were children born between 2003 and 2017 (see appended table) was broadly accepted. 190. As to the fourth applicant, the Court observes that in the proceedings concerning the applicants’ placement in the Tovarnik Centre, the authorities treated her as an adult (see paragraph 29 above). However, it notes that at the court hearing she stated that she had turned eighteen in April 2018 (see paragraph 39 above), and that according to the Bulgarian authorities she was born on 16 April 2000 (see paragraph 34 above), which would mean that during the first twenty-five days of her stay in the Tovarnik Centre she was a minor. Having also regard to the presumption of minority in case of uncertainty about age (see paragraphs 92, 95 and 98 above), and the fact that the doctor who examined her on 21 March 2018 noted that she was seventeen years old (see paragraph 28 above), the Court finds it appropriate to examine the fourth applicant’s Article 3 complaint together with the Article 3 complaints submitted by the other child applicants. Indeed, while it is true that the fourth applicant was not a young child but a person closer to adulthood, she would still fall within the international definition of minors, in respect of whom the considerations outlined in paragraph 186 above apply. (ii) Examination of the complaint in respect of the applicant children 191. The Court notes that at the material time the eleven applicant children were aged one, two, three, eight, ten, fifteen and seventeen (see appended table). They were held at the Tovarnik Centre from 21 March to 4 June 2018, that is to say, for two months and fourteen days. 192. The Court notes that the applicant children were accompanied by their parents throughout the said period. It finds, however, that this fact is not capable of exempting the authorities from their duty to protect children and take adequate measures as part of their positive obligations under Article 3 of the Convention (see R.R. and Others, cited above, § 59). 193. The Court observes that the material conditions in the Tovarnik Centre were satisfactory. From the photographs submitted by the Government, the facility appeared newly built, dry, freshly painted, clean and furnished. There was a children’s playroom, a restaurant, a room for socialising, a basketball, football and handball court outside the building, as well as a children’s playground (see paragraphs 177-178 above). There were no issues of overcrowding, excessive noise or lack of proper ventilation. The applicants were placed in rooms equipped to accommodate families with small children, they were given clean clothes, underwear, toiletries and material tailored to childcare, and were provided with medical and psychological assistance (see paragraphs 32 and 180 above, and contrast Muskhadzhiyeva and Others v. Belgium, no. 41442/07, § 59, 19 January 2010; Popov, §§ 93-97; A.B. and Others, § 113; S.F. and Others, §§ 84-88; G.B. and Others, §§ 102-17; and R.R. and Others, §§ 60-61, all cited above). 194. However, the Court cannot overlook the presence of elements in the Tovarnik Centre resembling a prison environment; it was surrounded by a wall, with police officers posted by its entrance and by the doors to each floor, and with barriers in the hallways and bars on the windows. Also, the doors to the applicants’ rooms had a glass opening through which it was possible to see from the hallway into the room (see paragraph 178 above). 195. The Court finds worrying the Croatian Ombudswoman’s remarks made, after her representatives had visited the applicants on 26 March 2018, that apart from the police officers who guarded the Centre, there had been no staff to carry out activities with the persons placed there, especially the children, or to provide food or cleaning and ensure daily medical assistance (see paragraph 106 above). It further takes into account the Croatian Children’s Ombudswoman’s remarks made, after visiting the Tovarnik Centre in April 2018, that the Centre had been inadequate for accommodating families with children, in that it had entailed a limitation of freedom of movement, had not been adequately equipped and there had been no experts to provide psychosocial support (see paragraph 107 above). 196. The Court further observes that the applicants consistently complained to the NGOs, the domestic authorities and the Court that during the initial part of their stay in the Tovarnik Centre they had been confined to their rooms and had been restricted in their access to indoor leisure activities and the outdoor facilities (see paragraphs 31, 35, 38-39 and 173 above). The Government initially submitted that the applicants had been allowed to use the outdoor facilities for two hours in the morning and two hours in the afternoon, but they subsequently rectified their statement, explaining that in fact they had been allowed to use the outdoor facilities and playground from 8 a.m. to 10 p.m. (see paragraph 179 above). The Croatian Ombudswoman reported having received contradictory information in that regard (see paragraph 106 above). 197. The Court is unable to make any definitive findings on this particular issue based on the material before it. However, it finds it important to emphasise that the restriction of access to leisure activities, outdoor facilities and fresh air inevitably causes anxiety and is harmful for children’s well-being and development (see Article 23 of the relevant European Union directive cited in paragraph 87 above, and see also paragraphs 96 and 102 above). 198. The Court further observes that the psychologist established on 28 March 2018 that the applicants were mourning the death of MAD.H. and that they had been experiencing fear of uncertainty. He recommended providing them with further psychological support and organising activities to occupy the children’s time (see paragraph 32 above). The Government submitted that the applicant children had been provided with activities carried out by the Jesuit Refugee Service NGO as of 16 May 2018 (see paragraph 177 above), without submitting any proof to that effect. In any event, by 16 May 2018, the applicant children had already spent almost two months in the Tovarnik Centre without any organised activities to occupy their time (see R.R. and Others, cited above, § 61, where no activities were organised for the applicant children for period of a month and a half). 199. The Court is of the view that the detention of children in an institution with prison-type elements, where the material conditions were satisfactory, but where the level of police surveillance was high and there were no activities structuring the children’s time, would perhaps not be sufficient to attain the threshold of severity required to engage Article 3 where the confinement was for a short duration, depending on the circumstances of the case. However, in the case of a protracted period, such an environment would necessarily have harmful consequences for children, exceeding the above-mentioned threshold. The Court reiterates that the passage of time is of primary significance in this connection for the application of Article 3 of the Convention (see A.B. and Others, § 114, and R.R. and Others, § 64, both cited above). 200. The Court notes in that regard that various international bodies, including the Council of Europe, are increasingly calling on States to expeditiously and completely cease or eradicate immigration detention of children, emphasising the negative impact such detention can have on children’s physical and mental health and on their development, even when they are detained for a short period of time or with their families (see G.B. and Others, cited above, §§ 67-79 and 151). The relevant European Union directive adopts the position that detention of minors should be “for the shortest period of time and all efforts shall be made to release the detained minors and place them in accommodation suitable for minors” (see paragraph 87 above). In the present case, the Court has found that the domestic authorities failed to act with the required expedition in order to limit, as far as possible, the detention of the eleven applicant children and their parents (see paragraphs 254 and 257 below). 201. The Court considers that the children’s detention over a period of two months and fourteen days, in the conditions set out above, exceeded the permissible duration beyond which Article 3 of the Convention is engaged (see paragraph 199 above). Indeed, it was significantly longer than in the reference cases against France (fifteen days in Popov, cited above, § 92; eighteen days in A.B. and Others, cited above, § 111; and ten days in R.C. and V.C. v. France, no. 76491/14, § 36, 12 July 2016), and it must have been perceived by the applicant children as a never-ending situation. Bearing in mind that they were in a particularly vulnerable condition due to painful past events, as most of them had witnessed the tragic death of their six-year-old sister near the Croatian-Serbian border, the situation must have caused them accumulated psychological disturbance and anxiety. 202. The Court also takes note of the applicants’ uncertainty as to whether they were in detention and whether legal safeguards against arbitrary detention applied, having regard to the fact that they were placed in the Tovarnik Centre on 21 March 2018 and received legal advice in that regard only on 12 April 2018 (see paragraph 35 above), and that they were not allowed to see their chosen lawyer S.B.J. until 7 May 2018 (see paragraph 66 above). Inevitably, this situation caused additional anxiety and degradation of the parental image in the eyes of the child applicants. 203. Accordingly, in view of the numerous children involved, some of whom were of a very young age, the children’s particular vulnerability on account of painful past events, and the length of their detention in conditions set out above, which went beyond the shortest permissible duration due to the failure of the domestic authorities to act with the required expedition (see paragraphs 254 and 257 below), the Court finds that the situation subjected the applicant children to treatment which exceeded the threshold of severity required to engage Article 3 of the Convention. 204. There has accordingly been a violation of Article 3 of the Convention in respect of the fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth and fourteenth applicants. (iii) Examination of the complaint in respect of the adult applicants 205. The Court has already held that it was unable to make any definitive findings on the applicants’ complaint that during the first part of their stay they were allowed to spend only one or two hours per day in the outdoor facilities (see paragraph 197 above). However, it finds it useful to emphasise that the adult applicants were not persons suspected or convicted of a criminal offence, but migrants detained pending the verification of their identity and application for international protection. Accordingly, there should not have been any unreasonable restriction in their using the outdoor facilities (see the immigration detention standards developed by the CPT, paragraph 102 above). 206. The Court must further examine the available evidence to establish whether, as alleged by the adult applicants, they could be considered particularly vulnerable and, if so, whether the conditions in which they stayed in the Tovarnik Centre were incompatible with any such vulnerability to the extent that those conditions constituted inhuman and degrading treatment with specific regard to the adult applicants (see Ilias and Ahmed, cited above, § 191). 207. The Court notes that it is true that asylum-seekers may be considered vulnerable because of everything they might have been through during their migration and the traumatic experiences they are likely to have endured previously (ibid., § 192). The Court observes in this connection that the applicants left Afghanistan in 2016. 208. The Court is further mindful of the fact that the adult applicants were mourning the recent tragic death of the six-year-old MAD.H. near the Croatian-Serbian border. The Court observes that the authorities provided them with phycological support. They were visited by a psychologist on numerous occasions in the Tovarnik Centre (see paragraph 32 above, and contrast R.R. and Others, cited above, § 63, where there was no professional psychological assistance available for traumatised asylum-seekers). 209. The applicants complained that the psychologist who visited them could not help them in any meaningful way because there was no interpreter present. The Court observes in that connection that the applicants conversed with the psychologist with the help of the fourth applicant, who spoke English, and the thirteenth applicant, who spoke some Serbian (see paragraph 174 above). The possibility for a patient to be treated by staff who speak his or her language is not an established ingredient of the right enshrined in Article 3 of the Convention (see Rooman v. Belgium [GC], no. 18052/11, § 151, 31 January 2019). 210. In addition, whilst the detention of the adult applicants with their children could have created a feeling of powerlessness, anxiety and frustration, the fact that they were not separated from their children during the detention must have provided some degree of relief from those feelings (see Muskhadzhiyeva and Others, cited above, § 66, and Popov, cited above, § 105). 211. The Court is thus unable to conclude that the otherwise acceptable conditions at the Tovarnik Centre for adult applicants were particularly ill ‑ suited to their individual circumstances to such an extent as to amount to ill-treatment contrary to Article 3. 212. The Court also considers that even though the adult applicants must have been affected by the uncertainty as to whether they were in detention and whether legal safeguards against arbitrary detention applied (see paragraph 35 above), the fact that they were aware of the procedural developments in the asylum procedure through their legal aid lawyer I.C. (see paragraph 51 above), and that in March and April 2018 they were visited by the Croatian Ombudswoman and the Croatian Children’s Ombudswoman (see paragraphs 106-107 above), must have limited the negative effect of that uncertainty (compare Ilias and Ahmed, cited above, § 193). 213. Accordingly, having due regard to all the circumstances of the present case, the Court is of the view that there has been no violation of Article 3 of the Convention in respect of the first, second and third applicants. ALLEGED VIOLATIONS OF ARTICLE 5 OF THE CONVENTION 214. The applicants complained under Article 5 § 1 of the Convention that their placement in the Tovarnik Centre had been unlawful. Relying on Article 5 § 4, they also complained that they had not had at their disposal an effective procedure whereby they could have challenged the lawfulness of their placement there. 215. The relevant paragraphs of Article 5 of the Convention read as follows: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; ... (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition. ... 4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” AdmissibilityThe parties’ submissions The parties’ submissions The parties’ submissions 216. In their observations of 29 June 2018 submitted in connection with application no. 15670/18, the Government maintained that the applicants’ complaints were premature as the proceedings for reviewing the lawfulness of their detention were still pending before the domestic authorities. The applicants had at their disposal an appeal to the High Administrative Court and a constitutional complaint. 217. The applicants submitted that they had afforded the national authorities an opportunity to examine their complaints. The Court’s assessment 218. The Court notes that the applicants challenged before the Osijek Administrative Court the decisions restricting their freedom of movement (see paragraph 35 above). On 22 May 2018 that court partially dismissed and partially granted the third, seventh and eight applicants’ administrative action (see paragraph 40 above), and entirely dismissed the remaining applicants’ administrative actions (see paragraph 41 above). The applicants, save for the third, seventh and eighth applicants, appealed to the High Administrative Court, and that court dismissed their appeals (see paragraph 42 above). They lodged a constitutional complaint, and on 11 July 2019 the Constitutional Court found that their placement in the Tovarnik Centre had been in compliance with Article 5 § 1 (f) of the Convention, and that there had been no breach of Article 5 § 4 (see paragraph 46 above). 219. The Court notes that, meanwhile, on 6 April 2018, all the applicants lodged a complaint with the Constitutional Court in which they argued that their placement in the Tovarnik Centre had been in breach of Article 3 and Article 5 § 1 of the Convention (see paragraph 43 above). The Constitutional Court examined their complaint on 18 December 2018 (see paragraph 45 above). 220. In these circumstances, the Court concludes that the applicants afforded the domestic authorities an opportunity to examine their grievances and that the Government’s objection must be dismissed. 221. The Court notes that these complaints are not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. MeritsAlleged violation of Article 5 § 1 of the Convention Alleged violation of Article 5 § 1 of the Convention Alleged violation of Article 5 § 1 of the Convention (a) The parties’ submissions (i) The applicants 222. The applicants submitted that their detention in the Tovarnik Centre did not fall within any of the permissible grounds under Article 5 § 1. 223. They contended that under the domestic law, as soon as a person expressed an intention to seek international protection, and until the decision on his or her application became final, he or she had the right to stay in Croatia (see paragraph 78 above). Relying on Suso Musa v. Malta (no. 42337/12, § 97, 23 July 2013), the applicants argued that their detention between 21 March 2018, when they expressed their intention to seek international protection and 4 June 2018, when they were transferred to an open-type centre, could thus not have been undertaken for the purposes of preventing their “effecting an unauthorised entry into the country”, given that there had been no “unauthorised entry”. 224. The applicants further submitted that the purpose of their placement in the Tovarnik Centre had not been their identification or the verification of kinship between them. The authorities had only started verifying their identity weeks after they had been placed in detention. Moreover, they never explained why they had doubted that the child applicants were not related to the adult applicants. If there had been a real suspicion of child trafficking, the State would certainly have taken steps to protect them. The aim of their detention had rather been to return them to Serbia in order to prevent their involvement in the criminal investigation concerning the death of MAD.H. and to prevent them from publicly speaking about their pushbacks. 225. The applicants lastly submitted that they had left Croatia in July 2018 after they had learned that, regardless of their suffering, their applications for international protection in that country had not been accepted. (ii) The Government 226. The Government maintained that the applicants had been placed in the Tovarnik Centre for the purposes of establishing their identity, given that they had had no identity papers, and for the purpose of protecting the numerous minor children in the group by verifying their relationship with the adults. Additionally, there had been a risk of flight and further illegal border crossings, given that on arriving in Croatia the applicants had stated that their final destination was “Europe” and the United Kingdom. The risk of flight had been confirmed by the fact that the applicants had several times tried to leave Croatia unlawfully once they had been transferred to an open-type centre. 227. The Government contended that the restriction of the applicants’ freedom of movement had been lawful and not arbitrary. It had been ordered in good faith, with the purpose of preventing the applicants’ unlawful entry into the country. The conditions of their placement in the Tovarnik Centre had been adequate, and the duration of their placement had been reasonable. The circumstances of their case had been thoroughly examined by the domestic courts. (b) Third-party intervener - Hungarian Helsinki Committee 228. The Hungarian Helsinki Committee stressed that when deciding on the restriction of liberty of children, their best interests had to be taken into account as a primary consideration. Even though international and European Union law did not prohibit the detention of children as such, they provided for this possibility only as a measure of last resort, in the absence of other viable alternatives, given that nobody should be held in detention on the sole grounds of being an asylum-seeker. They further submitted that domestic law allowing for the detention of asylum-seeking children was in breach of Article 5 § 1 of the Convention owing to the fact that detention as an institution, especially when other alternatives were available, was never in the best interests of the child and was therefore unnecessary and immensely disproportionate to the aim pursued. (c) The Court’s assessment (i) Compatibility of the deprivation of liberty with Article 5 § 1 of the Convention - general principles 229. The Court reiterates that Article 5 enshrines a fundamental human right, namely the protection of the individual against arbitrary interference by the State with his or her right to liberty. Sub-paragraphs (a) to (f) of Article 5 § 1 contain an exhaustive list of permissible grounds on which individuals may be deprived of their liberty, and no deprivation of liberty will be lawful unless it falls within one of those grounds (see Saadi v. the United Kingdom [GC], no. 13229/03, § 43, ECHR 2008). One of the exceptions, contained in sub-paragraph (f), permits the State to control the liberty of aliens in an immigration context. 230. In Saadi (ibid., §§ 64-66) the Grand Chamber interpreted for the first time the meaning of the first limb of Article 5 § 1 (f), namely, “to prevent his effecting an unauthorised entry into the country”. It considered that until a State had “authorised” entry to the country, any entry was “unauthorised” and the detention of a person who wished to effect entry and who needed but did not yet have authorisation to do so, could be imposed, without any distortion of language, to “prevent his effecting an unauthorised entry”. It did not accept that, as soon as an asylum-seeker had surrendered himself to the immigration authorities, he was seeking to effect an “authorised” entry, with the result that detention could not be justified under the first limb of Article 5 § 1 (f) (ibid., § 65). It considered that to interpret the first limb of Article 5 § 1 (f) as permitting detention only of a person who was shown to be trying to evade entry restrictions would be to place too narrow a construction on the terms of the provision and on the power of the State to exercise its undeniable right of control referred to above. Such an interpretation would, moreover, be inconsistent with Conclusion No. 44 of the Executive Committee of the United Nations High Commissioner for Refugees’ Programme, the UNHCR’s Guidelines and the Committee of Ministers’ Recommendation (see Saadi, cited above, §§ 34-35 and 37), all of which envisaged the detention of asylum-seekers in certain circumstances, for example while identity checks were taking place or when elements on which the asylum claim was based had to be determined. However, detention had to be compatible with the overall purpose of Article 5, which was to safeguard the right to liberty and ensure that no-one should be dispossessed of his or her liberty in an arbitrary fashion (ibid., § 66). 231. In Suso Musa (cited above, § 97) the Court held that, where a State which had gone beyond its obligations in creating further rights or a more favourable position – a possibility open to it under Article 53 of the Convention – enacted legislation (of its own motion or pursuant to European Union law) explicitly authorising the entry or stay of immigrants pending an asylum application, an ensuing detention for the purpose of preventing an unauthorised entry could raise an issue as to the lawfulness of detention under Article 5 § 1 (f). The Court considered that the question as to when the first limb of Article 5 ceased to apply, because the individual had been granted formal authorisation to enter or stay, was largely dependent on national law (ibid.). 232. The Court further reiterates that detention is authorised under sub ‑ paragraph (b) of Article 5 § 1 only to “secure the fulfilment” of the obligation prescribed by law. It follows that, at the very least, there must be an unfulfilled obligation incumbent on the person concerned, and the arrest and detention must be for the purpose of securing its fulfilment and must not be punitive in character. As soon as the relevant obligation has been fulfilled, the basis for detention under Article 5 § 1 (b) ceases to exist (see O.M. v. Hungary, no. 9912/15, § 42, 5 July 2016). Moreover, this obligation should not be given a wide interpretation. It has to be specific and concrete, and the arrest and detention must be truly necessary for the purpose of ensuring its fulfilment (see Iliya Stefanov v. Bulgaria, no. 65755/01, § 72, 22 May 2008). 233. Under the sub-paragraphs of Article 5 § 1, any deprivation of liberty must, in addition to falling within one of the exceptions set out in sub-paragraphs (a) to (f), be “lawful”. Where the “lawfulness” of detention is at issue, including the question whether “a procedure prescribed by law” has been followed, the Convention refers essentially to national law but also, where appropriate, to other applicable legal standards, including those which have their source in international law. In all cases it establishes the obligation to conform to the substantive and procedural rules of the laws concerned, but it also requires that any deprivation of liberty be compatible with the purpose of Article 5, namely to protect the individual from arbitrariness (see Medvedyev and Others v. France [GC], no. 3394/03, § 79, ECHR 2010). 234. Indeed, no detention which is arbitrary can be compatible with Article 5 § 1, and the notion of “arbitrariness” in that context extends beyond lack of conformity with national law: a deprivation of liberty may be lawful in terms of domestic law but still arbitrary and thus contrary to the Convention (see Saadi, cited above, § 67; see also G.B. and Others, cited above, § 146, and Bilalova and Others v. Poland, no. 23685/14, § 74, 26 March 2020). 235. To avoid being branded as arbitrary, detention under Article 5 § 1 (f) must be carried out in good faith; it must be closely connected to the ground of detention relied on by the Government; the place and conditions of detention should be appropriate, bearing in mind that “the measure is applicable not to those who have committed criminal offences but to aliens who, often fearing for their lives, have fled from their own country”; and the length of the detention should not exceed that reasonably required for the purpose pursued (see Saadi, cited above, § 74; see also A. and Others v. the United Kingdom [GC], no. 3455/05, § 164, ECHR 2009, and Suso Musa, cited above, § 93). 236. As to the detention of migrant children, the Court notes that various international bodies, including the Council of Europe, are increasingly calling on States to expeditiously and completely cease or eradicate the immigration detention of children (see G.B. and Others, cited above, §§ 67 ‑ 79, and 151). 237. It emerges from the Court’s established case-law on this issue that, as a matter of principle, the confinement of migrant children in a detention facility should be avoided, and that only placement for a short period in appropriate conditions could be considered compatible with Article 5 § 1 of the Convention, provided, however, that the national authorities can establish that they resorted to this measure only after having verified that no other measure involving a lesser restriction of freedom could be implemented (see A.B. and Others, § 123; Bilalova and Others, § 79; and G.B. and Others, § 151, all cited above ). 238. The Court notes that the move in international law towards adopting alternative measures to the administrative detention of migrants appears to concern not only children, but also their parents (see G.B. and Others, cited above, §§ 69, 72 and 168). The Court itself has acknowledged, albeit as part of its considerations under Article 8, that the child’s best interests cannot be confined to keeping the family together and that the authorities have to take all the necessary steps to limit, as far as possible, the detention of families accompanied by children and effectively preserve the right to family life (ibid., and see also Popov, cited above, § 147). 239. Lastly, the Court has held that the detention of young children in unsuitable conditions in the context of Article 3, may on its own lead to a finding of a violation of Article 5 § 1, regardless of whether the children were accompanied by an adult or not (see G.B. and Others, § 151; see also Muskhadzhiyeva and Others, § 74, both cited above). (ii) Application of the above principles to the present case 240. The applicants argued that their detention in the Tovarnik Centre did not fall within any of the permissible grounds under Article 5 § 1 (see paragraph 222 above). 241. In that connection, the Court first observes that contrary to the Constitutional Court’s finding of 11 July 2019 (see paragraph 46 above), the applicants’ detention could not have been covered by the second limb of Article 5 § 1 (f), because domestic law did not allow for deportation pending a decision on international protection and it is evident that no such proceedings were being conducted against the applicants (compare with Ahmade v. Greece, no. 50520/09, §§ 142-44, 25 September 2012). 242. The Court further notes that under the International and Temporary Protection Act, a person is considered an applicant for international protection from the moment he or she expresses an intention to seek international protection (see paragraph 78 above). Under sections 52(1), 53 and 54 of the Act, from the moment a person expresses an intention to seek international protection, until the moment the decision on the application for international protection becomes enforceable, such person has the right to stay in Croatia as well as the right to freedom of movement in that country. The Court notes that the freedom of movement may be restricted for the purposes set out in section 54(2) of the Act, such as the establishing of circumstances on which the application for international protection is based, in particular if it is deemed that there is a risk of flight, and establishing and verifying identity or citizenship. 243. The Court observes that the domestic law does not specify, nor did the Government argue, that any decision or other formal authorisation needed to be issued in order for a particular asylum-seeker to actually benefit from the right to stay in Croatia pending an application for international protection. 244. However, it may well be that what was intended was for the relevant domestic law to reflect international standards to the effect that an asylum-seeker may not be expelled pending the outcome of an asylum claim (see for example, S.D. v. Greece, no. 53541/07, § 62, 11 June 2009), without necessarily requiring that an individual be granted formal authorisation to stay in or to enter the territory. 245. At this juncture, the Court would reiterate that Article 5 § 1 (b) could also potentially provide justification, in some specific circumstances, for the detention of asylum-seekers (see O.M., cited above, § 48). The Court refers in that connection to the obligations of asylum-seekers under section 52 of the International and Temporary Protection Act, in so far as relevant to the present case, to submit to verification and establishing of identity and to stay on the territory of Croatia during the procedure for international protection (see paragraph 78 above). 246. However, the Court does not need to rule on whether the applicants’ detention fell within one of the permissible grounds under Article 5 § 1, because in any event, for the reasons outlined below, it is of the view that their detention was not lawful. 247. The Court has already found under Article 3 of the Convention that the conditions in which the child applicants were held in the Tovarnik Centre were in breach of that Article (see paragraph 204 above). These circumstances may on their own have led the Court to find a violation of Article 5 § 1 in respect of the applicant children (see paragraph 239 above). 248. The Court will proceed with its analysis in respect of the entire applicant family. 249. In the present case, the police placed the applicants in detention on 21 March 2018 on the basis of section 54(2)(2) of the International and Temporary Protection Act for the purpose of verifying their identities (see paragraph 29 above). Apart from stating that the applicants were Afghan nationals who had expressed an intention to seek international protection and who did not have identification documents, there is no indication in the detention order that an assessment was carried out as to whether, in view of the numerous children involved, a less coercive alternative measure to detention was possible (compare A.B. and Others, cited above, § 124, and see the materials cited in paragraphs 87-88 and 91 above). The Court thus has serious doubts as to whether in the present case the authorities carried out such an assessment. 250. The Court further notes that, even though the applicants were detained on 21 March 2018 for the purpose of verifying their identities, it was only on 10 April 2018 that the authorities registered the applicants’ fingerprints in the Eurodac system and sought information from Interpol Sofia and Interpol Belgrade with a view to checking their identity (see paragraph 34 above). The Court cannot but note that the foregoing occurred only after an inquiry by the Croatian Ombudswoman with the Ministry of the Interior (see paragraphs 33 and 105 above). By then, the applicants’ application for international protection had already been dismissed by the Ministry of the Interior for over ten days (see paragraph 50 above). In the Court’s view, this circumstance raises concerns as to the authorities’ acting in good faith (see paragraph 235 above). 251. Furthermore, throughout the proceedings the authorities maintained, save for in respect of the third, seventh and eight applicants (see paragraph 256 below), that the applicants’ placement in the Tovarnik Centre continued to be necessary as the mere submission of their personal identification information and fingerprinting had been insufficient to establish their identities, given that they had not been registered in the Schengen or Eurodac systems (see paragraph 40 above). However, the Court observes that the Eurodac search conducted by the Croatian authorities revealed that the applicants had entered Bulgaria in 2016 (see paragraph 34 above) and that their asylum applications in Bulgaria had been rejected in 2017. Although their names in the Bulgarian system slightly differed from those in the Croatian system, mostly in the suffix of their last name, it was clear that those were the same persons (ibid.). Furthermore, on 30 April 2018 the Croatian authorities received information on the applicants’ stay in Serbia and on 17 May 2018 they received a copy of the citizenship certificate issued by the Afghan authorities for the first and second applicants (see paragraph 38 above). Insisting, in these circumstances, that the applicants’ detention continued to be justified by the need to establish their identity, could therefore raise further concerns as to the authorities’ acting in good faith. 252. The Court further observes that on 10 May 2018 the domestic authorities additionally justified the applicant’s detention by the flight risk they posed under section 54(2)(1) of the International and Temporary Protection Act (see paragraph 36 above). 253. Having regard to the fact that on 23 March 2018 the applicants submitted that they had spent around a year in Serbia without seeking asylum because there were no job opportunities and they wanted to live in Europe, and that they had failed to report that they had previously unsuccessfully sought asylum in Bulgaria (see paragraph 49 above), the Court has no cause to call into question the authorities’ conclusion related to the flight risk (see section 54(4) of the International and Temporary Protection Act containing objective criteria defining the risk of flight, cited in paragraph 78 above). Indeed, having been transferred to an open-type centre in Croatia, the applicants repeatedly attempted to enter Slovenia unlawfully, eventually succeeded in doing so, and then left that country as well (see paragraph 47 above). 254. However, where the domestic authorities decided, on grounds provided for by law, to detain children and their parents for immigration ‑ related purposes in exceptional circumstances, it goes without saying that the related administrative procedures, such as examining their application for international protection, ought to have been conducted with particular vigilance and expedition in order to limit, as far as possible, the detention of the applicant family (see Articles 9 and 11 of the relevant European Union Directive cited in paragraph 87 above, and compare Bilalova and Others, cited above, § 81). 255. In that regard the Court notes that, even though the Ministry of the Interior dismissed the applicants’ application for international protection on 28 March 2018, it took another three months for the Osijek Administrative Court to review their appeal in order for the decision to become enforceable (on 18 June and 2 July 2018; see paragraph 54 above). 256. In addition, the Court notes that in the case of the third, seventh and eighth applicants, on 22 May 2018 the Osijek Administrative Court held that precisely because their asylum claims had already been dismissed on 28 March 2018, their detention could not have continued to be justified by the need to establish their identity and the circumstances on which they had based their asylum request (see paragraph 40 above). Had the Osijek Administrative Court examined their case more speedily, it could have ordered their release much earlier than 22 May 2018. 257. Accordingly, the delays in the present case, related to the verification of applicants’ identity and the examination of their application for international protection before the Osijek Administrative Court, seriously call into question the diligence shown by the authorities in conducting the proceedings. The authorities failed to comply with the requirement of expedition and failed to take all the necessary steps to limit, as far as possible, the detention of the applicant family (compare Bilalova and Others, cited above, § 81). 258. This situation was further compounded by the fact that the applicants were not afforded relevant procedural safeguards, as shown by the Osijek Administrative Court’s finding that there was no evidence that they had been apprised of the decisions placing them in the Tovarnik Centre in a language they could understand (see paragraph 37 above and, mutatis mutandis, Abdullahi Elmi and Aweys Abubakar v. Malta, nos. 25794/13 and 28151/13, § 146, 22 November 2016). The Court notes in this regard that there have apparently been other cases in which migrants in Croatia had not been informed of the reasons for their detention because they had been given documents in Croatian which they could not understand, and had been unaware of their right to have a lawyer or to challenge the decision to detain them (see the relevant part of the fact-finding mission to Croatia by the Special Representative of the Secretary General on Migration and Refugees, cited in paragraph 110 above). 259. In conclusion, the Court considers that the applicants’ detention was not in compliance with Article 5 § 1 of the Convention. Accordingly, there has been a violation of that provision. Alleged violation of Article 5 § 4 of the Convention 260. The applicants submitted that the decisions of 21 March 2018 ordering their placement in the Tovarnik Centre had not been explained to them in a language they could understand, nor had they been informed that they could make use of remedies against it. They had managed to challenge them only in April 2018, after those decisions had been accidentally discovered in the case file by their legal aid lawyer appointed in another set of proceedings. They also submitted that the administrative court had reviewed the lawfulness of their detention as late as 22 May 2018, even though numerous children were involved. 261. Having regard to its findings under Article 5 § 1 above, in which it took into account the fact that there was no evidence that the applicants had been apprised in a language they could understand of the decisions placing them in the Tovarnik Centre (see paragraph 258 above), as well as the length of the proceedings before the Osijek Administrative Court for the review of their detention (see paragraph 256 above), the Court considers that it is not necessary to examine separately whether, in this case, there has also been a violation of Article 5 § 4. ALLEGED VIOLATION OF ARTICLE 4 of protocol no. 4 to THE CONVENTION 262. The applicants further complained that they had been subjected to collective expulsions without any individual assessment of their circumstances. They relied on Article 4 of Protocol No. 4 to the Convention, which provides: “Collective expulsion of aliens is prohibited.” Preliminary issueThe parties’ submissions The parties’ submissions The parties’ submissions (a) The applicants 263. The applicants submitted that before 21 March 2018, when they had been allowed to stay in Croatia pending the outcome of the proceedings for international protection, they had three times been summarily returned from Croatia to Serbia without any examination of their personal circumstances. 264. On 21 November 2017 the Croatian police had apprehended the first applicant and six of the children in Croatian territory, taken them to the border and told them to return to Serbia, ignoring their requests for asylum, after which MAD.H. died. On two further occasions on unspecified dates before 21 March 2018, the Croatian police had returned all of them to Serbia, ignoring their requests for asylum. 265. The applicants alleged that this reflected the general Croatian police practice towards migrants, as confirmed by numerous independent national and international reports. According to applicants, by denying the latter events, the State was trying to avoid responsibility for serious human rights violations. (b) The Government 266. The Government maintained that on 21 November 2017 the applicants had not entered Croatian territory – that is to say, the first applicant had entered it only to ask for help for MAD.H., after which she had voluntarily returned to Serbia. On that day the applicants had not sought asylum. The Government had no evidence of any further attempts by the applicants to cross the border illegally in the period before 21 March 2018. Once the applicants had expressed their wish to seek international protection on 21 March 2018, the Croatian authorities had conducted the relevant procedure and had examined the particular circumstances of their case. Third-party intervener - Hungarian Helsinki Committee 267. The Hungarian Helsinki Committee submitted that the authorities along the Western Balkan route regularly implemented measures potentially in breach of Article 4 of Protocol No. 4 in remote areas, at night-time, without conducting any kind of official procedure or handing over those being removed to the officials of the receiving State. Victims of such unofficial practices thus faced major challenges in providing substantive evidence to the Court to prove their allegations. The Hungarian Helsinki Committee suggested that in such situations establishing the applicants’ victim status could be dealt with in the same way as that of applicants in cases of forced disappearance, institutional discrimination, or in certain Article 18 cases. Where the lack of documents proving that the applicants were indeed under the jurisdiction of the respondent State could be ascribed to the practice of the State’s authorities, the State should not be able to hide behind this pretext. It would be against the principle of the rule of law and of the Contracting Parties’ obligation to respect the rights set out in the Convention to dismiss the right to seek justice from the Court of persons whose Convention rights were violated in a manner that deliberately impeded their access to proceedings before the Court. The Court’s assessment 268. According to the Court’s case-law, the distribution of the burden of proof and the level of persuasion necessary for reaching a particular conclusion are intrinsically linked to the specificity of the facts, the nature of the allegation made and the Convention right at stake (see, among other authorities, El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 151, ECHR 2012). In the context of expulsion of migrants, the Court has previously stated that where the absence of identification and personalised treatment by the authorities of the respondent State was at the very core of an applicant’s complaint, it was essential to ascertain whether the applicant has furnished prima facie evidence in support of his or her version of events. If that is the case, the burden of proof should shift to the Government ( see N.D. and N.T., cited above, § 85 ). 269. The Court observes that the applicants’ description of the events of 21 November 2017 was specific and consistent throughout the whole period following the death of MAD.H. At the same time, there is no material evidence to confirm that the applicants entered Croatia on 21 November 2017 and were returned to the border with Serbia by the Croatian police. The alleged return occurred at night-time in the winter, without them being handed over to the officials of that country, and without any kind of official procedure. 270. The Court acknowledges in that connection a large number of reports by civil-society organisations, national human rights structures and international organisations concerning summary returns of persons clandestinely entering Croatia to the borders with Serbia and Bosnia and Herzegovina, where they are forced to leave the country (compare M.K. and Others v. Poland, nos. 40503/17 and 2 others, § 174, 23 July 2020). These materials include, inter alia, reports by the Special Representative of the Secretary General of the Council of Europe on Migration and Refugees, the rapporteur of the Committee on Migration, Refugees and Displaced Persons of the Parliamentary Assembly of the Council of Europe, and the United Nations Special Rapporteur on the human rights of migrants (see paragraphs 103-115, and see the third-party submissions outlined in paragraphs 144-147 above). The summary returns are allegedly being conducted outside official border crossings and without any prior notification of the authorities of the country to which the migrants are being returned. 271. In this connection, as the Court has often noted in its case-law, footage of video surveillance may be critical evidence for establishing the circumstances of the relevant events (see Magnitskiy and Others v. Russia, nos. 32631/09 and 53799/12, § 269, 27 August 2019, with further references). The Court notes that the Tovarnik-Šid area where the applicants had allegedly entered Croatia was under constant surveillance, including by stationary and thermographic cameras, owing to the frequent attempts by migrants to illegally cross the border there (see paragraph 8 above). 272. The Court has already found that the domestic criminal investigation did not comply with the requirements of Article 2 of the Convention (see paragraph 164 above), inter alia, because the investigative authorities never verified the police allegation that there were no recordings of the impugned events, and that they had failed to inspect the signals from their mobile telephones and the police car GPS in order to establish the applicants’ whereabouts and their contact with the Croatian police before the train had hit MAD.H. 273. Having regard to the above considerations, the Court is of the view that, in the particular circumstances of the present case, there was prima facie evidence in favour of the applicants’ version of events, and that the burden of proving that the applicants had not entered Croatia and had not been summarily returned to Serbia prior to the train hitting MAD.H. rested on the authorities (see paragraph 268 above). However, the Government have not submitted a single argument capable of refuting the above prima facie evidence provided by the applicant. 274. The Court will thus consider it to be truthful that on 21 November 2017 the Croatian police officers returned the first applicant and her six children (the ninth, tenth, twelfth, thirteenth and fourteenth applicants and MAD.H.) to Serbia without considering their individual situation (compare N.D. and N.T., cited above, § 88). 275. As to the applicants’ submissions that all of them had entered Croatia on two further occasions and had sought asylum, but that the Croatian police officers had summarily returned them to Serbia, the Court notes that they are unsubstantiated as to any relevant circumstances. The applicants have accordingly failed to present prima facie evidence in support of those allegations. Admissibility 276. In order to determine whether Article 4 of Protocol No. 4 is applicable, the Court must seek to establish whether the Croatian authorities subjected the first applicant and five of the child applicants to “expulsion” within the meaning of that provision. 277. The Court refers to the general principles summarised in M.K. and Others (cited above, §§ 197-200) and reiterates that it has interpreted the term “expulsion” in the generic meaning in current use (“to drive away from a place”) (see Khlaifia and Others, cited above, § 243, and Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 174, ECHR 2012), as referring to any forcible removal of an alien from a State’s territory, irrespective of the lawfulness of the person’s stay, the length of time he or she has spent in the territory, the location in which he or she was apprehended, his or her status as a migrant or an asylum-seeker and his or her conduct when crossing the border (see N.D. and N.T., cited above, § 185). It has also applied Article 4 of Protocol No. 4 to aliens who were apprehended in an attempt to cross a national border by land and were immediately removed from the State’s territory by border guards (ibid., § 187). 278. Turning to the present case, the Court observes that the first applicant and her six children clandestinely entered Croatia outside an official border crossing point. They were intercepted some hours later while resting in a field. They were then transported by the police to the border and were told to return to Serbia, which they did. 279. Referring to the principles established in its case-law (see paragraph 277 above), the Court finds that the fact that the first applicant and her six children entered Croatia irregularly and were apprehended within hours of crossing the border and possibly in its vicinity do not preclude the applicability of Article 4 of Protocol No. 4. 280. Having regard to the foregoing, the Court considers that the first applicant and the five child applicants (the ninth, tenth, twelfth, thirteenth and fourteenth applicants) were subjected to expulsion within the meaning of Article 4 of Protocol No. 4. 281. Since this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention, it must be declared admissible. MeritsThe parties’ arguments The parties’ arguments The parties’ arguments (a) The applicants 282. The applicants contended that their case should be distinguished from N.D. and N.T. (cited above), because they were a family with children and they had been subjected to expulsion after they had been apprehended in the territory of Croatia by the Croatian police, who had ignored their request for asylum. They had not used force or endangered public safety during the border crossing or during their stay in the territory of Croatia. 283. The applicants submitted that under the International and Temporary Protection Act, an intention to seek international protection could be expressed at a border crossing or, if the person was already in the territory of Croatia, at a police station or reception centre for foreigners. The family had expressed their intention to seek asylum to the first police officers they had encountered in Croatia, with the aim of securing access to the procedure in accordance with Croatian law. In each of their attempts to enter Croatia before 21 March 2018, the Croatian police had returned them to Serbia, despite their obligations under section 33(8) of the International and Temporary Protection Act. 284. The applicants explained that they had entered Croatia clandestinely because, without travel documents, it would not have been possible for them to leave Serbia and enter Croatia at official border crossing points between these two countries. Without travel documents, their attempt to leave Serbia and enter Croatia through the official border crossing would have been treated as a minor offence and would have been prevented. 285. The Croatian Embassy in Serbia did not accept applications for international protection, so the applicants had used the only available way of seeking international protection in Croatia: they had crossed the border unlawfully. (b) The Government 286. The Government argued that the case of N.D. and N.T. (cited above) was applicable to the present case. The applicants had had genuine and effective access to an official border crossing point, which they had failed to use. The fact that they were a family with numerous children had been an even stronger reason for them to enter Croatia at an official border crossing. The applicants had not submitted any evidence that they had attempted to enter the country legally but had been prevented from doing so, seeing that at the material time the Croatian official border crossings had been open. 287. The Government argued that the applicants had had the possibility of entering Croatia legally regardless of the fact of not having any identification documents. In particular, they referred to section 36 of the Aliens Act and the Ordinance on the Treatment of Third-Country Nationals (see paragraph 79 above), arguing that persons who did not meet the requirements to enter Croatia legally, because of not having identification documents, could be granted entry on humanitarian grounds. 288. Accordingly, had the applicants arrived at an official border crossing and explained the reason for wishing to enter the country, the border officials would have taken their fingerprints and photographs and established their identity and the circumstances of their arriving in Croatia. They would have registered their intention to seek international protection and would have instructed them to report to a reception centre with a view to lodging a formal application for international protection. This manner of legal entry of foreigners into the country was effective, as proven by the fact that in 2019 the authorities had issued eighty decisions granting entry to Croatia on the basis of section 36 of the Aliens Act (see paragraph 83 above). 289. The Government further submitted that in 2017, 1,887 applications for international protection had been lodged in Croatia of which 211 were granted, and 816 applications had been lodged up until 20 September 2018, of which 157 had been successful. This confirmed that Croatia provided third-country nationals with access to international protection. 290. However, just like the applicants, 77% of the illegal migrants who, on entering Croatian territory, had expressed an intention to seek international protection had left Croatia before actually lodging an application for international protection or before the end of the proceedings. This was precisely what had happened in the present case, since the applicants had left Croatia in July 2018, before the proceedings concerning their applications for international protection had ended. Statistics showed that migrants used Croatia as a country of transit on their way to western and northern Europe. In the majority of cases, those persons were economic migrants, just like the applicants, rather than refugees in need of international protection. 291. The Government further submitted that as a European Union Member State with the prospect of joining the Schengen Area in the near future, Croatia had the right to control the entry of aliens to its territory and had the obligation to protect the State borders from illegal crossings. Since mid-2017, the human and technical capacities of the border police had been increased and deterrents had been implemented more intensively than before because of increased migratory movements along the so-called Western Balkans migratory route. Deterrence, which was regulated by the Schengen Borders Code, involved measures and action to prevent illegal entries at the external border. 292. Various NGO and international reports regarding coercive measures allegedly being applied to migrants by Croatian police did not contain sufficiently concrete data to trigger criminal investigations. Since illegal migrants had been prevented from entering Croatia by police officers or had been returned, in accordance with another prescribed procedure, to the country from which they had illegally entered, they accused the Croatian police officers of violence, hoping that such accusations would help them to re-enter Croatia and continue their journey towards their countries of final destination. The Court’s assessment (a) General principles 293. The Court refers to the principles concerning the “collective” nature of an expulsion summarised in N.D. and N.T. (cited above, §§ 193 ‑ 201). It reiterates that the decisive criterion in order for an expulsion to be characterised as “collective” is the absence of “a reasonable and objective examination of the particular case of each individual alien of the group” (ibid., § 195). In line with this, in Hirsi Jamaa and Others (cited above, § 185) the Court found a violation of Article 4 of Protocol No. 4 because the applicants, who had been intercepted at high seas, were returned to Libya without the Italian authorities carrying out any identification or examination of their individual circumstances. 294. Exceptions to the above rule have been found in cases where the lack of an individual expulsion decision could be attributed to the applicant’s own conduct (see Berisha and Haljiti v. the former Yugoslav Republic of Macedonia (dec.), no. 18670/03, 16 June 2005, and Dritsas v. Italy (dec), no. 2344/02, 1 February 2011). In the case of N.D. and N.T. (cited above, § 201), the Court considered that the exception excluding the responsibility of a State under Article 4 of Protocol No. 4 should also apply to situations in which the conduct of persons who crossed a land border in an unauthorised manner, deliberately took advantage of their large numbers and used force, was such as to create a clearly disruptive situation which was difficult to control and endangered public safety. The Court added that in such situations, it should be taken into account whether the respondent State provided genuine and effective access to means of legal entry, in particular border procedures, and if it did, whether there were cogent reasons for the applicants not to make use of such means on account of objective facts for which the respondent State was responsible (ibid.). (b) Application of the above principles to the present case 295. The Court notes the Government’s argument that the applicants had engaged in “culpable conduct” by circumventing the legal procedures that existed for entry into Croatia. It will therefore examine firstly whether the possibilities which, in the Government’s submission, were available to the applicants in order to enter Croatia lawfully, in particular with a view to claiming protection under Article 3, existed at the material time and, if so, whether they were genuinely and effectively accessible to them (see N.D. and N.T., cited above, § 211). 296. The Government contended that persons without identification documents, such as the applicants, could have sought entry to Croatia on humanitarian grounds, under section 36 of the Aliens Act (see paragraph 79 above). They submitted that in 2019 the authorities had issued eighty decisions granting entry to Croatia on that basis, providing two such decisions to the Court (see paragraph 83 above). 297. The Court observes that the humanitarian grounds referred to in section 36(1) of the Aliens Act are defined as emergency medical assistance, human organ donation, natural disasters and unforeseen events involving close family members such as severe illness or death (see paragraph 82 above). It does not see how any of these grounds applied to the applicants’ situation. 298. As for the two decisions submitted by the Government (see paragraph 83 above), the Court notes that one was issued to a Serbian national in possession of a valid passport on the grounds of unforeseen events involving close family members. The other decision was issued to a person born in Bosnia and Herzegovina on the grounds of urgent medical assistance. The Government did not submit any decision granting entry under section 36 of the Aliens Act for the purpose of seeking international protection. 299. Accordingly, the Court is not convinced that this legal avenue offered a possibility for the applicants to enter the country in order to claim protection under Article 3 of the Convention. 300. The Court further notes that under the International and Temporary Protection Act, an intention to seek international protection may be expressed at the border crossing, thus triggering the procedure for examination of the personal situation (see section 33(1) of that Act, cited in paragraph 78 above). However, apart from submitting the total number of applications for international protection made in Croatia (see paragraph 289 above), the Government did not supply, despite being expressly invited to do so, any specific information regarding the asylum procedures at the border with Serbia in 2017 or 2018, such as the location of the border crossing points, the modalities for lodging applications there, the availability of interpreters and legal assistance enabling asylum-seekers to be informed of their rights, and information showing that applications had actually been made at those border points (compare N.D. and N.T., cited above, §§ 212-17). 301. In the absence of such information, the Court is unable to examine whether the legal avenue referred to was genuinely and effectively accessible to the applicants at the time. 302. Lastly, the Court notes that the Government have not argued that the applicants could have submitted an application for international protection in the Croatian embassy in Serbia. Thus, such a legal avenue should be regarded as not available in this case. 303. Accordingly, on the basis of the information before it, the Court is unable to establish whether at the material time the respondent State provided the applicants with genuine and effective access to procedures for legal entry into Croatia, in particular with a view to claiming protection under Article 3 (ibid., § 211). 304. In the light of the above considerations, the Court finds that the removal to Serbia of the first applicant and the five child applicants (the ninth, tenth, twelfth, thirteenth and fourteenth applicants) on 21 November 2017, was of a collective nature, in breach of Article 4 of Protocol No. 4 to the Convention. Accordingly, there has been a violation of that Article. ALLEGED VIOLATIONS OF ARTICLE 34 OF THE CONVENTION 305. The applicants further complained that by failing to comply with the interim measure indicated under Rule 39 of the Rules of Court, by preventing contact with their lawyer, by conducting a criminal investigation as regards the power of attorney which they had signed, and by interfering with their communication with their lawyer, the authorities had violated Article 34 of the Convention, which provides: “The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.” Rule 39 provides: “1. The Chamber or, where appropriate, the President of the Section or a duty judge appointed pursuant to paragraph 4 of this Rule may, at the request of a party or of any other person concerned, or of their own motion, indicate to the parties any interim measure which they consider should be adopted in the interests of the parties or of the proper conduct of the proceedings. 2. Where it is considered appropriate, immediate notice of the measure adopted in a particular case may be given to the Committee of Ministers. 3. The Chamber or, where appropriate, the President of the Section or a duty judge appointed pursuant to paragraph 4 of this Rule may request information from the parties on any matter connected with the implementation of any interim measure indicated. 4. The President of the Court may appoint Vice-Presidents of Sections as duty judges to decide on requests for interim measures.” Failure to comply with the interim measureThe parties’ submissions The parties’ submissions The parties’ submissions 306. The applicants submitted that the State had failed to comply with the Court’s repeated request to transfer them from the Tovarnik Centre to an Article 3 compliant environment. 307. The Government contended that the State had not violated its obligation to comply with the interim measure issued by the Court since the conditions of the applicants’ placement in the Tovarnik Centre had complied with the requirements of Article 3 of the Convention. They reiterated their arguments submitted under Article 3 of the Convention. The Court’s assessment 308. The Court notes that the applicants’ complaint under Article 34 of the Convention concerns, in effect, the respondent State’s obligations under Article 3 of the Convention. The question whether the respondent State in fact complied with the interim measure at issue is thus closely related to the examination of the complaints raised by the applicants under the latter Convention provision. 309. Given the nature of the interim measure applied in the present case, the parties’ submissions and the Court’s findings concerning the applicants’ complaint under Article 3 of the Convention (see paragraphs 191-213 above), the Court takes the view that it has examined the main legal question raised in respect of their situation in the Tovarnik Centre and that it does not need to give a separate ruling on the complaint under Article 34 of the Convention (see, Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014, and R.R. and Others, cited above, § 107). Alleged hindrance of the effective exercise of the applicants’ right of individual applicationAdmissibility Admissibility Admissibility 310. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. Merits (a) The parties’ arguments (i) The applicants 311. The applicants submitted that when they had entered Croatia on 21 March 2018 and been placed in the Tovarnik Centre, they had not been informed that S.B.J. had been trying to contact them. She had been denied the right to represent them on the grounds that the power of attorney signed in her favour by the applicants had not been valid, while the applicants were told that they were not allowed to have the same lawyer in the criminal investigation concerning the death of MAD.H. and the proceedings for international protection. The NGO that had wished to clarify the circumstances of the applicants’ signing the power of attorney in favour of S.B.J. had not been allowed to visit them in the Tovarnik Centre. The State had allowed the Croatian Children’s Ombudswoman to visit the applicants in the Tovarnik Centre and clarify whether they had authorised the lawyer S.B.J. to represent them only after the Court’s intervention under Rule 39. 312. The applicants argued that the initiation of a criminal investigation in respect of S.B.J. on suspicion of having forged the first and second applicants’ signatures on the power of attorney had been aimed at frightening her and preventing her from assisting the applicants with their case. That investigation had continued even after the first and second applicants had expressly confirmed to the investigating judge that they had signed the impugned power of attorney, and after the representative of an NGO who had been present during the signing had confirmed that fact. 313. The applicants lastly submitted that the telephone conversations between the fourth applicant and I.C. and the lawyer S.B.J. had been supervised by the police. The fourth applicant could not use her mobile phone freely while in the Tovarnik Centre, as it had been taken away from her from time to time. (ii) The Government 314. The Government denied that the authorities had in any way interfered with the applicants’ right to lodge an application with the Court. During the entire period of their stay in Croatia the applicants had enjoyed legal assistance by either I.C. or S.B.J. They had effective access to different procedures in Croatia for the protection of their rights, such as the proceedings for international protection and the proceedings to challenge their placement in the Tovarnik Centre. They were able to lodge an application with the Court and request interim measures. 315. The Government contended that the initiation of the investigation into the powers of attorney signed in favour of S.B.J. had been lawful and justified. Once the first applicant had stated on 23 March 2018 that the signature on the power of attorney had not been hers, the police had had grounds for suspecting the criminal offence of forging a document. A graphologist’s expert report also indicated that the first and second applicants’ signatures had been forgeries and S.B.J. had herself admitted that she had not been present when the applicants had signed the powers of attorney in Serbia, contrary to section 18 of the Lawyers’ Ethics Code (see paragraph 84 above). S.B.J. had not had direct contact with the applicants, nor had she received clear instructions to commence the proceedings before the Court on their behalf. Consequently, the Croatian prosecuting authorities had clearly had an obligation to conduct the investigation, in order not only to protect the legal order, but also to protect the applicants. 316. The applicants had freely chosen I.C. to represent them in the international protection proceedings from the list of legal aid lawyers provided to them. That list had also included S.B.J., but the applicants had not chosen her, which proved that they did not have any real connection to her as they did not even recognise her name. 317. The Government lastly submitted that under the relevant domestic law, the authorities were obliged to allow NGOs and other human rights organisations access to (detention) centres only as regards aliens and asylum-seekers who were awaiting removal. The applicants had not been subjected to proceedings for forcible removal or deportation from Croatia. (b) Third-party intervener - Hungarian Helsinki Committee 318. The Hungarian Helsinki Committee submitted that under the European Union directive concerning international protection, legal advisers had to have access to the applicant’s file and to clients held in detention facilities or transit zones. The Parliamentary Assembly of the Council of Europe had acknowledged the need to provide legal aid to asylum-seekers in Europe, particularly in the case of accelerated asylum procedures and for those at border zones and in detention facilities. Under the Court’s case-law, denying a detained asylum-seeker access to a lawyer, interfering with the confidentiality of the lawyer-applicant conversation and initiating reprisal measures against the legal representatives could lead to a breach of Article 34 of the Convention. They further stressed that the right of detained asylum-seekers to have access to the relevant NGOs was of paramount importance, and that under the European Union directive regulating the detention of migrants, States had an explicit obligation to allow such access. Any limitation of this right on security grounds was only to be imposed in exceptional cases, based on a strict interpretation of the concept of national security. States were allowed a certain measure of discretion in evaluating threats to national security and deciding how to combat them. Nevertheless, the Court tended to require national bodies to verify that any threat had a reasonable basis in fact. (c) The Court’s assessment (i) General principles 319. The Court reiterates that it is of the utmost importance for the effective operation of the system of individual petition instituted by Article 34 that applicants or potential applicants be able to communicate freely with the Court without being subjected to any form of pressure from the authorities to withdraw or modify their complaints (see Ergi v. Turkey, 28 July 1998, § 105, Reports of Judgments and Decisions 1998 ‑ IV, and Shtukaturov v. Russia, no. 44009/05, § 138, ECHR 2008). 320. The Court notes that an interference with the right of individual petition may take different forms. 321. Preventing applicants from meeting with their lawyers and communicating with them by telephone and correspondence with a view to pursuing their case before the Court has previously led the Court to find a violation of Article 34 of the Convention (see Shtukaturov, cited above, §§ 138-49, and D.B. v. Turkey, no. 33526/08, §§ 65-67, 13 July 2010). 322. The institution of criminal proceedings against a lawyer involved in the preparation of an application to the Commission has also been found to interfere with the applicant’s right of petition (see Şarli v. Turkey, no. 24490/94, §§ 85-86, 22 May 2001). Indeed, the initiation of reprisal measures against legal representatives, even where no action is taken in the end, can amount to a violation, as the initiation of such measures could have a “chilling effect” on the exercise of the right of individual petition (see McShane v. the United Kingdom, no. 43290/98, § 151, 28 May 2002). 323. The Court has also held that the “general interest” requires that consultations with lawyers should be in conditions “which favour full and uninhibited discussion” (see Campbell v. the United Kingdom, 25 March 1992, §§ 46-48, Series A no. 233), and the police’s failure to respect the confidentiality of lawyer-applicant discussions has been found in breach of Article 34 of the Convention (see Oferta Plus S.R.L. v. Moldova no. 14385/04, §§ 145-56, 19 December 2006). 324. The Court has consistently held, albeit in the context of criminal proceedings, that the national authorities must have regard to the defendant’s wishes as to his or her choice of legal representation, but may override those wishes when there are relevant and sufficient grounds for holding that this is necessary in the interests of justice (see Dvorski v. Croatia [GC], no. 25703/11, § 79, ECHR 2015, and the cases cited therein). (ii) Application of the above principles in the present case 325. The Court observes that immediately after the applicants had been taken to Vrbanja Police Station on 21 March 2018, S.B.J. requested to meet with them and to take over their representation (see paragraph 56 above). She repeated her request the following day when she learned that the applicants had been placed in the Tovarnik Centre. The Court does not see why the authorities did not immediately inform the applicants that their lawyer was trying to contact them because, as mentioned by the Government, any doubts concerning the validity of the power of attorney signed by the first applicant could not have arisen until 23 March 2018, when the first applicant stated that the signature on the power of attorney was not hers (see paragraph 49 above). The fact that a person had been caught clandestinely crossing the Croatian-Serbian border could not serve as a basis for depriving that person of a lawyer’s assistance. 326. The Court further observes that during the interview concerning her application for international protection the first applicant stated that the signature on the impugned power of attorney was not hers (see paragraph 49 above). The Court accepts that at that moment doubts could have arisen as to the validity of the power of attorney and that, having regard to the vulnerability of the first applicant and to the entirety of her statement that she had signed certain documents in Serbia, the authorities had reasonable grounds to verify the matter. 327. In this connection the Court observes that on 28 March 2018 the authorities received a detailed explanation of the circumstances of the first applicant’s signing of the power of attorney in question from an employee of the Centre for Peace Studies NGO, who had been present during its signing in Serbia, and who had asked to meet the applicants in order to clarify the matter (see paragraph 58 and 59 above). However, his request was denied on security grounds. The domestic authorities and the Government did not submit any argument to show that the alleged security threat had any reasonable basis in fact (see, in this regard, Article 10 of the relevant European Union directive cited in paragraph 87 above). 328. The Court further observes that even though on 31 March 2018 the first and second applicants expressly confirmed to the investigating judge of the Vukovar County Court that they had signed the power of attorney in favour of S.B.J., the criminal investigation continued and the Vukovar Criminal Police visited the law firm of S.B.J., asked her to hand over the original of the power of attorney, and later on interviewed her and her colleagues as regards the circumstances under which the power of attorney had been signed (see paragraph 62 above). The Court notes that the Croatian Bar Association warned the Head of Police that those actions had been in breach of the Lawyers Act and had impeded the independence of the legal profession as guaranteed by the Croatian Constitution (see paragraph 64 above). 329. At the same time, the authorities must have known that on 4 April 2018 S.B.J. had lodged a request for an interim measure under Rule 39 on the applicants’ behalf, asking, inter alia, to be allowed to contact them (see paragraph 67 above). The Court notes that it took two exchanges of correspondence with the Government (on 6 and 25 April 2018) and almost one month for the State authorities to allow the Croatian Children’s Ombudswoman to visit the applicants in the Tovarnik Centre and clarify their legal representation by S.B.J. (see paragraphs 68 and 73 above). On 2 May 2018 the applicants met with the Croatian Children’s Ombudswoman and confirmed to her that they were aware that S.B.J. had instituted proceedings before the Court on their behalf, and that they wished to meet with her and be represented by her. Indeed, the Court notes that on 3 April 2018 S.B.J. informed the fourth applicant via Viber that she was requesting an interim measure from the Court and lodging a constitutional complaint with the Constitutional Court (see paragraph 61 above). 330. The Court notes that on 30 March 2018, nine days after they had been placed in detention, the applicants were asked to appoint a legal aid lawyer, unaware as they were that their chosen lawyer had been trying to contact them since 21 March 2018 (see, mutatis mutandis, Dvorski, cited above, § 93). Therefore, while the applicants formally chose I.C. as their legal aid lawyer in the proceedings concerning their application for international protection, that choice was not an informed one because they had had no knowledge that S.B.J., whom they had previously appointed to represent them, had been asking to meet them. 331. As to the Government’s argument that S.B.J. was on the list of legal aid lawyers but that the applicants had not appointed her because they clearly had no real connection with her, the Court notes that the applicants are Afghan nationals, with no knowledge of the Croatian language. They had not met S.B.J. in person when signing the power of attorney but had appointed her on a recommendation from the NGOs. They were in a vulnerable situation, having lost their daughter and wanting that matter to be investigated. In those circumstances, the Court does not blame the applicants for not recognising S.B.J. on the list of names of legal aid lawyers. Indeed, it was for the State authorities to inform them that she had been trying to contact them (compare, mutatis mutandis, Dvorski, cited above, §§ 87 and 93). 332. As to the Government’s argument that the first and second applicants signed the power of attorney in favour of S.B.J. in the presence of NGO representatives without her being personally present, the Court recognises that in the migration context NGOs regularly work alongside lawyers and help them establish a connection with persons in need, since they have greater opportunities for contact with such persons (compare Hirsi Jamaa and Others, cited above, § 49). 333. It follows that the applicants, despite having appointed S.B.J. in December 2017 to represent them in all proceedings before the Croatian authorities, were left in detention without any legal assistance from 21 March to 2 April 2018, when the legal aid lawyer visited them in the Tovarnik Centre, and without the assistance of their chosen lawyer until 7 May 2018 (see paragraph 66 above). The Court has already held under Article 2 that owing to these circumstances, the applicants were unable to effectively participate in the criminal investigation into the death of MAD.H. (see paragraph 164 above). 334. Moreover, it was only owing to the persistence of the lawyer S.B.J. that the applicants’ grievances were brought to the Court’s attention. As noted above, the authorities could not have been unaware that she had lodged a Rule 39 request and an application with the Court on the applicants’ behalf, and yet they continued to prevent contact between them until 7 May 2018. In such circumstances the authorities interfered with the applicants’ rights under Article 34 of the Convention. 335. The Court takes the view that the authorities also interfered with the applicants’ right of individual petition by putting undue pressure on S.B.J. in connection with the power of attorney signed in her favour by the first and second applicants (see, mutatis mutandis, Oferta Plus S.R.L ., cited above, § 137). The Court finds that proceeding with the criminal investigation even after the applicants had confirmed to the investigating judge that they had signed the impugned power of attorney could have had a chilling effect on the exercise of the right of individual petition by the applicants and their representative. In that context, it is irrelevant that ultimately no criminal indictment was apparently brought in that regard (see, mutatis mutandis, McShane, cited above, § 151). 336. The Court considers that, on the basis of the material before it, there are sufficiently strong grounds for deducing that the restriction of contact between the applicants and their chosen lawyer S.B.J., and the criminal investigation and pressure to which that lawyer was subjected were aimed at discouraging them from pursuing the present case before the Court. Accordingly, there has been a breach of Article 34 of the Convention. 337. Having regard to the above-mentioned findings, the Court sees no need to examine the applicants’ complaint regarding the monitoring of conversations with their lawyer. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 338. The applicants complained that their detention in the Tovarnik Centre had amounted to a violation of Article 8 of the Convention, and that they had been discriminated against on the basis of their status as migrant asylum-seekers, in breach of Article 14 of the Convention, taken in conjunction with Articles 3, 5 and 8 of the Convention and Article 4 of Protocol No. 4, and Article 1 of Protocol No. 12. The Government contested those allegations. 339. The Court considers that the main issues in the present case have been analysed and that in the circumstances it is not necessary to examine the complaints under Articles 8 and 14 of the Convention and Article 1 of Protocol No. 12 (see Centre for Legal Resources on behalf of Valentin Câmpeanu, cited above, § 156). APPLICATION OF ARTICLE 41 OF THE CONVENTION 340. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” Damage 341. In application no. 15670/18, the applicants claimed 350,000 euros (EUR) in respect of non-pecuniary damage. In application no. 43115/18, they claimed EUR 300,000 in respect of non-pecuniary damage. 342. The Government contested the applicants’ claims as excessive and unsubstantiated. 343. The Court has found serious violations of several Convention provisions such as Articles 2, 3 and 5 and Article 4 of Protocol No. 4. It has also held the respondent State responsible for hindering the effective exercise of the applicants’ right of individual application under Article 34 of the Convention. The Court considers that in view of the violations found, the applicants undeniably suffered non-pecuniary damage which cannot be made good by the mere finding of a violation. Ruling on an equitable basis, as required by Article 41 of the Convention, the Court awards them EUR 40,000 jointly, plus any tax that may be chargeable to them on that amount. Costs and expenses 344. The applicants claimed 226,973.82 Croatian kunas (approximately EUR 30,000) for the costs and expenses incurred before the domestic courts and the Court. 345. The Government submitted that the applicants’ claims were excessive and unsubstantiated. 346. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, as well as the amount paid to the applicants’ representative in connection with the legal aid granted in the proceedings before the domestic authorities and before the Court, the Court considers it reasonable to award the sum of EUR 16,700 covering costs under all heads, plus any tax that may be chargeable to the applicants. Default interest 347. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held, in particular, that there had been: a violation of Article 2 (right to life) of the Convention, on account of the ineffective investigation into the child’s death; a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention, in respect of the child applicants, who had been kept in an immigration centre with prison-type elements for more than two months in material conditions adequate for the adult applicants; and a violation of Article 5 § 1 (right to liberty and security) of the Convention, in respect of all the applicants, on account of the failure to demonstrate required assessment, vigilance and expedition in proceedings in order to limit the asylum seekers’ family detention as far as possible. The Court also held that there had been a violation of Article 4 (prohibition of collective expulsions of aliens) of Protocol No. 4 to the Convention, on account of the summary return of six of the children and their mother by the Croatian police outside official border crossing and without prior notification of the Serbian authorities. |
790 | Death of a deaf and mute person in police custody | II. RELEVANT DOMESTIC AND INTERNATIONAL LAW PROVISIONS 33. The fifth paragraph of section 5 of the Law on Police provides one of the basic principles for organising the work of the police is safeguarding the health of persons in police custody, which includes carrying out emergency measures to provide medical assistance. The duty of police officers to provide medical and other assistance to injured persons is repeated in section 10(3) of the Law on Police. That section specifically provides for a duty to provide assistance to anyone, even persons who, because of their state of inebriation, have lost the ability to move or who pose a danger to themselves or others. 34. Section 319 (2) of the Criminal Law provides that state officials'can be held criminally liable for intentional or negligent failure to perform acts which are compulsory by law or are part of the duties assigned to the official in question. In order to engage criminal responsibility such dereliction of duties has to have caused substantial harm to the state or to the rights and interests of individuals. 35. On 1 February 2004 the Law of Administrative Procedure entered into force. That law, among many other things, provides for a mechanism for complaining about the legality of de facto actions of state institutions to administrative courts. 36. The Law on Compensation for Damage Caused by State Institutions came into force on 1 July 2005. It provides for practical implementation of the rights guaranteed by the Constitution and the Law of Administrative Procedure to receive compensation for damage caused by unlawful administrative acts issued by state institutions or for unlawful de facto actions of those institutions. Pursuant to section 14(3) of that law, the maximum compensation for non-pecuniary damage that can be awarded is 20,000 Latvian lati (LVL ) approximately 28,200 euros (EUR ). 37. As to the consequences of awarding compensation, section 32 of the Law on Compensation for Damage Caused by State Institutions provides as follows: “1) In order to establish the circumstances that have caused or fostered the infliction of the damage to be compensated, an authority hierarchically superior to the one which has caused the damage shall evaluate each individual case when damage has to be compensated pursuant to a decision of the authority or a court. 2) After evaluating all the circumstances pertinent to the compensation for damage, a hierarchically superior authority shall adopt a decision concerning forwarding the materials in the case file to a competent authority, which shall decide whether the official responsible for causing the damage ought to be held disciplinarily, administratively or criminally responsible. ” 38. Section 22 of the Law of Criminal Procedure contains a general principle according to which that Law provides for procedural opportunities for persons who have suffered harm as a result of criminal acts to request compensation for pecuniary and non-pecuniary damage. The specifics of the implementation of that principle are contained in various sections throughout the Law. 39. The general standards contained in the Second General Report [CPT/Inf (92) 3] by the Council of Europe's Committee for the Prevention of Torture (CPT) provide that persons detained by the police should have the right of access to a doctor, including the right to be examined, if the person detained so wishes, by a doctor of his own choice (in addition to any medical examination carried out by a doctor called by the police authorities) (§ 36). Persons taken into police custody should be expressly informed without delay of the above rights (§ 37). The results of the medical examination and relevant statements by the detainee and the doctor's conclusions should be formally recorded by the doctor and made available to the detainee and his lawyer (§ 38). 40. Article 14(2) of the United Nations Convention on the Rights of Persons with Disabilities ( “ the CRPD”), which entered into force on 3 May 2008, was signed by Latvia on 18 July 2008 and ratified on 1 March 2010, provides as follows: “States Parties shall ensure that if persons with disabilities are deprived of their liberty through any process, they are, on an equal basis with others, entitled to guarantees in accordance with international human rights law and shall be treated in compliance with the objectives and principles of the present Convention, including by provision of reasonable accommodation. ” 41. The Interim Report of the Special Rapporteur on the question of torture and other cruel, inhuman or degrading treatment or punishment, submitted on 28 July 2008 by the Office of the United Nations High Commissioner for Human Rights to the 63 rd session of the General Assembly of the UN (A/63/175) in its paragraphs 50 and 54 provides as follows: “Persons with disabilities often find themselves in ... situations [of powerlessness], for instance when they are deprived of their liberty in prisons or other places ... In a given context, the particular disability of an individual may render him or her more likely to be in a dependant situation and make him or her an easier target of abuse ... ” and “The Special Rapporteur notes that under article 14, paragraph 2, of the [Convention on the Rights of Persons with Disabilities], States have the obligation to ensure that persons deprived of their liberty are entitled to'provision of reasonable accommodation'. This implies an obligation to make appropriate modifications in the procedures and physical facilities of detention centres ... to ensure that persons with disabilities enjoy the same rights and fundamental freedoms as others, when such adjustments do not impose disproportionate or undue burden. The denial or lack of reasonable accommodation for persons with disabilities may create detention ... conditions that amount to ill-treatment and torture. ” THE LAW I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 42. The applicant complained that his son's death and the subsequent failure to conduct an effective investigation in that regard were in violation of the guarantees of Article 2 § 1 of the Convention, which reads as follows: “Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law ... ” 43. The Government contested that argument. A. Admissibility 1. The Government 44. The Government argued that the applicant could have challenged the actions and omissions of the officials of the Balvi District Police Department in conformity with the procedure prescribed in the Law of Administrative Procedure and subsequently requested compensation in conformity with the Law on Compensation for Damage Caused by State Institutions (see above, paragraphs 35 and 36 ). More specifically the Government suggested that what should have been subjected to administrative review were the de facto actions of the applicant's son's arrest and his placement in administrative detention. According to the Government, such a procedure was effective, accessible and offered reasonable prospects of successfully obtaining redress for the applicant's complaints about his son's death and the alleged defects of the subsequent investigation. 45. The Government referred to the Court's decision in Caraher v. the United Kingdom ((dec.), no. 24520/94, ECHR 2000 ‑ I) and the judgment Branko Tomašić and Others v. Croatia ( no. 46598/06, § 38, ECHR 2009 ‑ ... (extracts)) in support of their argument that in cases of use of lethal force by a State agent, as well as with regard to complaints about the failure of the State to take adequate positive measures to protect a person's life, the possibility of obtaining compensation was to be considered an adequate and sufficient remedy in respect of a substantive complaint under Article 2. 46. As for the applicant's complaint under the procedural aspect of Article 2, the Government submitted that while in principle a mechanism had to be available to the victim or the victim's family for establishing the liability of State officials or bodies for acts or omissions involving a breach of Convention rights (a reference was made to E. and Others v. the United Kingdom, no. 33218/96, § 110, 26 November 2002 ), cases of a non-intentional infringement of the right to life did not necessarily require the provision of a criminal-law remedy in every case ( Branko Tomašić and Others, cited above, § 64 ). More specifically, the Government pointed out that in the sphere of negligence a civil or disciplinary remedy may suffice (referring in this regard to Mastromatteo v. Italy [GC], no. 37703/97, § 90, ECHR 2002 ‑ VIII ), especially considering that the Convention does not grant to an individual a right to request conviction of third persons. The Government further alleged that pursuant to section 32(2) of the Law on Compensation for Damage Caused by State Institutions a court judgment awarding compensation for damage “trigger[ed] an obligation for a [hierarchically] superior institution to re-examine the case at hand”. Taking those considerations into account, the Government submitted that the remedies provided by the Law of Administrative Procedure and the Law on Compensation for Damage Caused by State Institutions satisfied the criteria for an effective domestic remedy within the meaning of Article 35 § 1 of the Convention in that they were capable of providing redress in respect of the applicant's complaints. 47. The Government further submitted that the proposed remedy was available in theory as well as in practice. With regard to the practical availability the Government referred to a decision of the Administrative Chamber of the Senate of the Supreme Court in case SKA-259/2008. That case concerned a person who was arrested and transported to a hospital for a narcotic intoxication test without adequate documentation. The administrative courts then proceeded ex officio to question the police officers involved in the incident and, upon finding that a procedural violation had been committed, ordered the police to issue a written apology. The Government considered that the approach adopted by the administrative courts attested to their capacity to conduct an independent and impartial ex officio investigation into the wrongdoings of police officers, which in turn attested to the fact that administrative courts were to be considered an effective and available remedy which offered reasonable prospects of success in cases where it was not compulsory to provide a criminal-law remedy. 48. Lastly, the Government submitted that the only purpose of the criminal inquiry into the fact of the applicant's son's death had been “to examine and investigate the circumstances of the death” and “under no circumstances” was the purpose of the investigation “to compensate for the losses incurred”, since even if an individual responsibility on the part of the state officials had been established, the applicant would have had to initiate a claim for compensation and to substantiate his claim. 2. The applicant 49. The applicant pointed out that the Latvian law at the relevant time provided for two separate review procedures concerning complaints such as his, namely, criminal proceedings or an administrative procedure. Both of those procedures provided the possibility to find that actions of State agents had been unlawful and to request compensation in that regard. As to which of the procedures should have been used, the applicant referred to the Court's earlier finding that “it is for the individual to select which legal remedy to pursue” ( Airey v. Ireland, 9 October 1979, § 23, Series A no. 32 ) and accordingly argued that he did not have an obligation to exhaust all available avenues of domestic remedies. In any event, according to the applicant, he had never been informed, either by the Prosecutor's Office or by the Ombudsman's Office, of the availability of administrative proceedings in his case. The applicant further focused on the requirement arising from the Court's case-law that in cases concerning a death in circumstances that might give rise to the State's responsibility the authorities must act of their own motion once the matter has come to their attention and that the next-of-kin could not be obliged to lodge a formal complaint or to take responsibility for the conduct of any investigative procedures ( Branko Tomašić and Others, cited above, § 43 ). Lastly, the applicant argued that the administrative courts lacked the competence to evaluate the effectiveness of the investigation into the applicant's son's death, since that investigation fell within the realm of criminal law. 3. The Court's assessment 50. The Court notes that it is common ground that the applicant made full use of the remedy provided by the criminal - law procedures. The Court reiterates that, in the event of there being a number of domestic remedies which an individual can pursue, that person is entitled to choose a remedy which addresses his or her essential grievance. In other words, when a remedy has been pursued, use of another remedy which has essentially the same objective is not required (see T.W. v. Malta [GC], no. 25644/94, § 34, 29 April 1999; Moreira Barbosa v. Portugal (dec.), no. 65681/01, ECHR 2004-V; and Jeličić v. Bosnia and Herzegovina (dec.), no. 41183/02, 15 November 2005). Accordingly, the Court has to determine only whether the Government have submitted any arguments that would indicate that the remedy provided for in the Law of Administrative Procedure and the criminal-law remedy do not have “essentially the same objective”, that is to say, whether the administrative-law remedy would add any essential elements that were unavailable through the use of the criminal-law remedy. 51. The Court observes that, for a domestic remedy to be considered an effective one in cases where a violation of Article 2 or 3 of the Convention has been alleged, it would have to provide for a legal mechanism of investigating the complaint. That conclusion is mandated by the procedural aspect of Articles 2 and 3 (see, mutatis mutandis, Oğur v. Turkey [GC], no. 21594/93, § 66, ECHR 1999 ‑ III ). A remedy whose only consequence is a possibility to obtain compensation for the alleged violation would not suffice (ibid., see also Şenses v. Turkey (dec.), no. 24991/94, 14 November 2000; Baysayeva v. Russia, no. 74237/01, §§ 108 and 109, 5 April 2007; and Dzieciak v. Poland, no. 77766/01, § 80, 9 December 2008 ). The Government have submitted that administrative courts possess the power to conduct an ex officio investigation and have submitted an example of one domestic case where such an investigation had apparently been carried out. In the context of the present case the Court has no reason to doubt that administrative courts are capable of carrying out an investigation either of their own volition or pursuant to a request by the parties. Nevertheless, the Government have failed to explain, and the example of the domestic case submitted does not clarify how an investigation carried out by administrative courts would be more pertinent than the one carried out by police and prosecutorial authorities within the context of criminal law procedures, which provide for all the legal and practical means necessary for that purpose. 52. It appears to be common ground that both avenues – the criminal-law one and the administrative-law one – could in principle, if pursued successfully, lead to an award of monetary compensation for the alleged violation. It has furthermore not been disputed that an adequately carried out criminal investigation could lead to a decision determining the individual responsibility of any State officials who might be held accountable for the applicant's son's death. None of the arguments advanced by the Government suggest that the administrative-law procedures would add anything to the possibilities offered by the criminal law. Even if the possibility of re-examination of the case is triggered by a an administrative act or a judgment awarding damages for a wrongdoing committed by a State institution, any individual responsibility of State officials could only be established following such re-examination, which can require additional investigation by several levels of domestic authorities. Accordingly, recourse to administrative-law procedures would not necessarily result in a more effective examination of the case. 53. Taking the above into account, the Court considers that the Government have failed to demonstrate that the remedy offered by the Law of Administrative Procedure and the Law on Compensation for Damage Caused by State Institutions would pursue objectives that are any different from the ones pursued by the criminal-law remedy. 54. The Court therefore considers that in the light of the facts pertinent to the present case there was no reason for the applicant to pursue the administrative-law remedy in addition to the criminal-law remedy, the effectiveness of which has not been disputed by the parties. 55. Accordingly the applicant has exhausted the domestic remedies. Furthermore, the complaint under Article 2 is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. The Court further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. Merits 1. Substantive aspect 56. The applicant argued that the police officers of the Balvi District Police Department had been negligent and ignorant in the performance of their duties. In this regard he emphasised that before his son was transported from the school to the police station the officers had been alerted to the fact that he had fallen down the stairs, hit his head and had been unconscious for some time. Nevertheless, the police had chosen not to wait for the ambulance which had been on its way. According to the applicant, by making that decision the police had taken full responsibility for its consequences. Accordingly, it had been the lack of due diligence on the part of the police officers that had led to the death of the applicant's son. 57. The Government did not submit any comments on the merits of the applicant's complaints. 58. The Court reiterates that the first sentence of Article 2, which ranks as one of the most fundamental provisions in the Convention and also enshrines one of the basic values of the democratic societies making up the Council of Europe (see, among other authorities, McCann and Others v. the United Kingdom, 27 September 1995, § 147, Series A no. 324), enjoins the State not only to refrain from the “intentional” taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see L.C.B. v. the United Kingdom, 9 June 1998, § 36 Reports of Judgments and Decisions 1998-III). 59. In the light of the importance of the protection afforded by Article 2, the Court must subject deprivations of life to the most careful scrutiny, taking into consideration not only the actions of State agents but also all the surrounding circumstances. Persons in custody are in a vulnerable position and the authorities are under a duty to protect them. Where the authorities decide to place and maintain in detention a person with disabilities, they should demonstrate special care in guaranteeing such conditions as correspond to his special needs resulting from his disability (see Price v. the United Kingdom, no. 33394/96, § 30, ECHR 2001-VII, Farbtuhs v. Latvia, no. 4672/02, § 56, 2 December 2004, and international law sources mentioned in paragraphs 39 to 41 above ). More broadly, the Court has held that States have an obligation to take particular measures to provide effective protection of vulnerable persons from ill-treatment of which the authorities had or ought to have had knowledge ( Z and Others v. the United Kingdom [GC], no. 29392/95, § 73, ECHR 2001 ‑ V ). 60. The obligation on the authorities to account for the treatment of an individual in custody is particularly stringent where that individual dies ( Salman v. Turkey [GC], no. 21986/93, § 99, ECHR 2000 VII). Furthermore, the national authorities have an obligation to protect the health of persons who have been deprived of their liberty (see, inter alia, Naumenko v. Ukraine, no. 42023/98, § 112, 10 February 2004, and Dzieciak v. Poland, no. 77766/01, § 91, 9 December 2008 ). In the context of Article 2, the obligation to protect the life of individuals in custody also implies an obligation for the authorities to provide them with the medical care necessary to safeguard their life (see Taïs v. France, no. 39922/03, § 98, 1 June 2006, and Huylu v. Turkey, no. 52955/99, § 58, 16 November 2006 ). A failure to provide adequate medical care may constitute treatment in breach of the Convention ( Huylu, cited above, § 58 ). 61. The Court considers that the question to be resolved first is whether the officers of the Balvi District Police Department knew or ought to have known about the danger to the applicant's son's health (see, mutatis mutandis, Keenan v. the United Kingdom, no. 27229/95, § 93, ECHR 2001 ‑ III ). Subsequently the Court has to evaluate whether the officers in question displayed adequate diligence in light of the medical condition of the applicant's son and his disability in so far as they knew or ought to have known about them. 62. Turning its attention first to the moment of the applicant's son's first encounter with the police, the Court observes that it is common ground that upon their arrival at the scene the officers were informed about the applicant's son's fall from the stairs and of his losing consciousness after hitting his head against the ground. The policemen were also told about the sensory disability of the applicant's son (see above, paragraph 9). They were further informed that an ambulance had been called and was on its way. Nevertheless, the policemen chose not to wait for the ambulance and to take the applicant's son to the police station, believing him to be merely intoxicated. 63. When the applicant's son was brought to the police station, he was observed by the officer on duty, who noted that there was a graze on his face (see above, paragraph 11). It appears that no medical examination took place. On the contrary, the police officers informed the ambulance crew that no medical assistance was necessary (see above, paragraph 13). It appears that the officers arrived at that decision without consulting the applicant, since it seems that none of the officers understood sign language and since the notepad that the applicant's son used for communication had been taken away from him. 64. From the information and the documents submitted by the parties it is not possible to establish with any certainty how many times and with what frequency the officers present at the station checked on the applicant's son's condition. What does not seem to be disputed is that for some time after being placed in the sobering-up room the applicant's son continued to knock on the doors and the walls of the cell, which did not prompt any reaction from officers present at the station. 65. The first time the police officers tried to wake up the applicant's son was some seven hours after taking him into custody (see above, paragraph 14). Almost another seven hours passed before an ambulance was called to the police station (paragraph 15). 66. The Court considers that the Government have failed to explain why the police, knowing about the applicant's son fall and having been informed about his disability, did not consider it necessary to wait for the ambulance or to have medical professionals examine the applicant's son after he was brought to the police station as specifically required by the applicable standards of the Committee for Prevention of Torture (see above, paragraph 39). What is more, it appears that the police never gave the applicant's son any opportunity to provide information about his state of health, even after he kept knocking on the doors and the walls of the sobering-up cell. Taking into account that the applicant's son was deaf and mute, the police had a clear obligation (arising at the least from sections 5 and 10(3) of the Law on Police and the above-mentioned international standards cited in paragraphs 39-41 above ) to at least provide him with a pen and a piece of paper to enable him to communicate his concerns. The Court is even more concerned by the almost seven hours that passed between the time when the applicant's son “refused to wake up” in the morning and the time when an ambulance was called. Not getting up for some fourteen hours can hardly be explained by simple drunkenness (compare with Taïs, cited above, § 101 ). 67. The foregoing considerations enable the Court to conclude that, taking into account the police's knowledge about the applicant's son's fall and his sensory disability, their failure to seek a medical opinion about his state of health coupled with their failure to react to his knocking on the doors and walls of the sobering-up cell and to call an ambulance for almost seven hours after he could not be woken up in the morning, the police failed to fulfil their duty to safeguard the life of the applicant's son by providing him with adequate medical treatment. 68. There has accordingly been a violation of the substantive aspect of Article 2 § 1 of the Convention. 2. Procedural aspect 69. The applicant pointed out that the initial investigation into the circumstances of his son's death was conducted by the Balvi District Police Department – the same institution which, in his submission, was responsible for the death. Accordingly the investigators had lacked the necessary independence. Furthermore the investigation had failed to establish whether the police officers in question had had a duty to wait for the ambulance that could have offered medical assistance to the applicant's son and whether it had been lawful to detain the applicant's son without first obtaining a medical opinion as to his state of health. 70. The Government did not submit any comments on the merits of the applicant's complaints. 71. The Court reiterates that the obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State's general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force (see, mutatis mutandis, McCann and Others v. the United Kingdom, 27 September 1995, § 161, Series A no. 324, and Kaya v. Turkey, judgment of 19 February 1998, § 105, Reports 1998-I ). 72. The Court has recently found that the obligation under Article 2 to carry out an effective investigation has evolved into a “separate and autonomous duty” (see Šilih v. Slovenia [GC], no. 71463/01, § 159, 9 April 2009). However, it would emphasise that this obligation may differ, both in content and in terms of its underlying rationale, depending on the particular situation that has triggered it (see Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 51, ECHR 2002 ‑ I, and Banks and Others v. the United Kingdom (dec.), no. 21387/05, 6 February 2007). The essential purpose of such an investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility ( Anguelova v. Bulgaria, no. 38361/97, § 137, ECHR 2002 ‑ IV ). 73. In as much as different considerations apply in cases such as the present one in which the death has not been caused by use of force or similar direct official action, the standard against which the investigation's effectiveness is to be assessed may be less exacting. However, even in such situations those concerned are entitled to an independent and impartial official investigation procedure that satisfies certain minimum standards as to its effectiveness (see Mikayil Mammadov v. Azerbaijan, no. 4762/05, § 102, 17 December 2009, and the jurisprudence cited there ). In this regard the Court would point out that this is not an obligation of result, but of means (see, among other authorities, Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 71, ECHR 2002 ‑ II ) and that Article 2 does not entail the right to have others prosecuted or sentenced for an offence, or an absolute obligation for all prosecutions to result in conviction, or indeed in a particular sentence (see Öneryıldız v. Turkey [GC], no. 48939/99, §§ 94 and 96, ECHR 2004 ‑ XII ). Nevertheless, the Court has also held that if the negligence attributable to State officials or bodies goes beyond an error of judgment or carelessness, in that the authorities in question, fully realising the likely consequences and disregarding the powers vested in them, have failed to take measures that have been necessary and sufficient to avert the risks to the victim's life, the fact that those responsible for endangering life have not been charged with a criminal offence or prosecuted may amount to a violation of Article 2 of the Convention ( Öneryıldız, § 93 ). 74. One of the minimum standards of effective investigation is a hierarchical, institutional and practical independence of persons carrying out the investigation from the persons implicated in the events under investigation (see Paul and Audrey Edwards, cited above, § 70; Mastromatteo v. Italy [GC], no. 37703/97, § 91, ECHR 2002 ‑ VIII; and Mikayil Mammadov, cited above, § 101 ). 75. With regard to the independence of the investigative authorities in the present case the Court notes that the applicant is correct in pointing out that the initial as well as additional inquiry was carried out by the Balvi District Police Department, that is, the same authority that was implicated in the death of his son (see above, paragraphs 19 and 20). In this respect the Court has previously held that an internal inquiry cannot be regarded as adequate in cases concerning allegations of ill-treatment in contravention of Article 3 of the Convention (see Ramsahai and Others v. the Netherlands [GC], no. 52391/99, § § 333-341, ECHR 2007 ‑ ... with further references, Jašar v. “the former Yugoslav Republic of Macedonia ” (dec.), no. 69908/01, 11 April 2006, and Kopylov v. Russia, no. 3933/04, § 138, 29 July 2010 ). The Court considers that the same conclusion is applicable to complaints under Article 2 of the Convention. Furthermore, the Balvi District Police Department was the same institution which on four occasions decided to terminate the criminal proceedings regarding the events surrounding the death of Valdis Jasinskis (see above, paragraphs 20, 23, 25 and 28). The first time the investigation went outside the recursive route between the Balvi District Police Department and the Balvi District Public Prosecutor's Office was after the applicant's representative sought help from the Office of the Prosecutor General. As a result, the first time anyone outside the Balvi District had access to the case file was more than a year and a half after the applicant's son's death. 76. The Court therefore considers that the investigation that was carried out by the Balvi District Police Department cannot be said to have been effective since it did not comply with the minimum standard of independence of the investigators. What remains to be seen then is whether that defect was cured when the investigative role was later taken over by the Bureau of Internal Security of the State Police, whose findings were then confirmed on three occasions by public prosecutors'offices. 77. In this regard the Court notes that the investigation conducted by the Bureau of Internal Investigation was not limited to merely reviewing the documentary evidence accumulated in the course of prior investigation. Instead, the investigators questioned the five police officers who had been present at the police station during the days prior to the death of the applicant's son and drew their own conclusions which coincided with the ones reached by the Balvi District Police Department's internal inquiry. 78. The Court does not find it necessary in the particular context of the present case to draw general conclusions about the independence or lack thereof of the Bureau of Internal Investigation, since it considers that the investigation carried out by that Bureau was defective for several reasons. At the outset the Court reiterates that a prompt response by the authorities in investigating suspicious deaths may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts (see, for example, Mikayil Mammadov, cited above, § 105 ). In the present case the investigation left the confines of the institution implicated in the events under investigation only more than eighteen months after the events. The Bureau of Internal Investigation adopted its decision almost one more year later. 79. The requirement of promptness of investigation, apart from the considerations mentioned previously, also follows from the necessity to promptly gather evidence and perform other investigative actions which could become impossible or excessively burdensome with the passage of time. For instance, in the present case it would have been opportune to question the witnesses of the circumstances the applicant's son's death soon after the respective events, while their memories were still fresh. In addition, a prompt investigation would have given the investigator an opportunity to ask supplementary questions to the expert who performed the autopsy and to observe the scene of the applicant's fall as well as the sobering-up cell where he had been detained. 80. The Court furthermore observes that the investigation that was carried out by the Bureau of Internal Investigation failed to provide answers to several questions that would have been crucial in determining the individual responsibility of the police officers of the Balvi District Police Department. For example, the fact that MADEKKI had identified several significant shortcomings with regard to the treatment of the applicant's son that may have contributed to his demise (see above, paragraph 18) was left without any assessment. What is more, it does not appear that any effort was made to evaluate whether the police officers'actions when not waiting for the ambulance, when informing the ambulance crew that the applicant did not need any medical assistance and when delaying seeking medical help for some fourteen hours had been compatible with their duties, which derive from sections 5 and 10 of the Law on Police (see above, paragraph 33), and the special needs of persons with disabilities like the applicant's son. Since no such assessment was made, the Bureau reached the conclusion that no crime had been committed and the police officers'responsibility was never weighed by a court (see, by contrast, Douglas-Williams v. the United Kingdom (dec.), no. 56413/00, 8 January 2002). 81. Lastly, the Court cannot but decry the lack of effectiveness and expediency of the investigation, epitomised by the fact that responsibility for the investigation was passed back and forth between the police and various prosecutors'offices three times (see, mutatis mutandis, Denis Vasilyev v. Russia, no. 32704/04, § 103, 17 December 2009, and Mikheyev v. Russia, no. 77617/01, § 120, 26 January 2006 ). The blame for this defect is to be shared by the police, whose investigation was consistently inadequate, and the prosecutors'offices, who failed to provide adequate instructions to the police with a view to remedying the defects identified in the investigation. 82. The foregoing considerations are sufficient to enable the Court to conclude that the investigation into the circumstances of the applicant's son's death was not effective. 83. There has accordingly been a violation of the procedural aspect of Article 2 § 1 of the Convention. III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 84. Lastly, the applicant also complained that there was no effective investigation, referring to the procedural aspect of Article 3. Taking into account the conclusions reached above with regard to the applicant's complaints under Article 2 § 1, the Court finds that there is no need to examine the same complaints under Article 3 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 85. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 86. The applicant claimed EUR 50,000 in respect of non-pecuniary damage. 87. The Government considered that the amount requested was unjustified, excessive and exorbitant. They submitted that the award, if such were to be made, ought to be commensurate to compensation awarded in comparable recent cases (the Government mentioned Juozaitienė and Bikulčius v. Lithuania, nos. 70659/01 and 74371/01, 24 April 2008, Nikolova and Velichkova v. Bulgaria, no. 7888/03, 20 December 2007 and other judgments ). 88. Taking into account the seriousness of the violations it has found in this case, the Court awards the applicant EUR 50,000 in respect of non-pecuniary damage. B. Costs and expenses 89. The applicant did not formulate a claim in respect of costs. C. Default interest 90. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The European Court of Human Rights held that there had been a violation of Article 2 (right to life) of the European Convention on Human Rights under its substantial limb. It reiterated that Article 2 of the Convention not only required a State to not “intentionally” take a life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction. As concerned a disabled person in detention, all the more care should be taken to ensure that the conditions corresponded to their special needs. However, in the present case, the police had not had the applicant medically examined when they took into custody, as they were specifically required to do by the standards of the European Committee for the Prevention of Torture (CPT). Nor had they given him any opportunity to provide information about his state of health, even after he kept knocking on the doors and the walls of the sobering-up cell. Taking into account that he was deaf and mute, the police had a clear obligation under the domestic legislation and international standards, to at least provide him with a pen and paper to enable him to communicate his concerns. The Court therefore concluded that the police had failed to fulfil their duty to safeguard the applicant’s son’s life by providing him with adequate medical treatment. The Court further held that the investigation into the circumstances of the death of the applicant’s son had not been effective, in violation of Article 2 of the Convention under its procedural limb. |
625 | Employees | RELEVANT LEGAL FRAMEWORK 31. Article 212 of the 1997 Criminal Code provides as follows: “1. Anyone who imputes to another person, a group of persons, an institution, a legal person or an organisation without legal personality such behaviour or characteristics as may lower the standing of such a person, group or entity in the public’s opinion or undermine public confidence in their necessary capacity [to undertake] a certain position, occupation or type of activity shall be liable to a fine, restriction on their liberty or imprisonment [for a term] not exceeding one year. 2. If the perpetrator commits the act described in paragraph 1 through the means of mass communication, he shall be liable to a fine, restriction of liberty or imprisonment [for a term] not exceeding two years. 3. When imposing sentence for an offence specified in paragraphs 1 or 2, a court may award a supplementary payment to the injured person or the Polish Red Cross or for another social purpose designated by the injured person ( nawiązka ). 4. The prosecution of an offence specified in paragraphs 1 or 2 may occur upon a private charge [being brought].” THE LAW ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 32. The applicant complained under Article 10 of the Convention that his criminal conviction constituted a disproportionate and unjustified sanction because criticising the professional activities of someone such as the museum’s director, who was a public figure, had to be tolerated in a democratic society. Article 10 of the Convention reads as follows: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ... 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” AdmissibilitySubmissions by the parties Submissions by the parties Submissions by the parties (a) The Government 33. The Government raised the following preliminary objections. 34. They argued that the application was incompatible with Article 10 of the Convention because, firstly, the applicant denied being the author of the impugned statements and secondly, the statements were false and had been aimed at damaging the reputation of the museum. In the Government’s view, the applicant had wanted to deflect Article 10 from its real purpose by using freedom of expression for private ends – namely, libelling and defaming persons with whom he had been in personal conflict. The applicant had therefore abused the protection afforded to freedom of expression contrary to Article 17 of the Convention. The application was thus incompatible ratione materiae within the meaning of Article 35 § 3 (a) of the Convention. 35. Relying on the same two arguments as those detailed above, the Government also argued that the application should be declared inadmissible for abuse of the right of individual application within the meaning of Article 35 § 3 (a) of the Convention. They stressed that by signing the letters as the staff of the museum, the applicant had tried to mislead the domestic courts and had put third parties at risk by falsely implying that they had been responsible for the impugned content. (b) The applicant 36. The applicant submitted that, despite denying being the author of the letters in question, he enjoyed the protection of Article 10 of the Convention because a domestic court had convicted him of libel, having considered him to be the author. Article 10 was therefore applicable in the present case. 37. Moreover, the application should not be declared inadmissible for abuse of the right of individual application. The mere fact that the applicant disagreed with certain versions of facts of the case, as presented by the domestic court or by the Government, did not mean that he had tried to mislead the Court. The Court’s assessment (a) As to the objection alleging incompatibility with Article 10 on the basis of the fact that the applicant denies having voiced the expressions for which he was convicted 38. The Court has already held, in some specific situations, that the applicants who deny imparting any ideas or information within the meaning of Article 10 of the Convention, may nevertheless enjoy the protection of that provision. 39. To that end, in the case of Müdür Duman v. Turkey – in which the applicant was convicted of a serious offence of praising and condoning an act punishable by law on the basis of material found in the office of his political party – the Court observed that not accepting that the applicant’s criminal conviction constituted an interference, on the grounds that he had denied any involvement in the actions at issue, would be tantamount to requiring the applicant to acknowledge the acts of which he had stood accused and would lock him in a vicious circle that would deprive him of the protection of the Convention (see Müdür Duman v. Turkey, no. 15450/03, § 30, 6 October 2015). In addition, requiring that the applicant acknowledges the acts for which he stood accused would run counter to the right not to incriminate oneself, which is part of international fair trial standards, although not expressly mentioned in Article 6 of the Convention (ibid.). 40. In the similar vein, in the case of Stojanović v. Croatia, in which the applicant – while not denying having given an interview – argued that he had never used the particular words giving rise to his civil defamation case, the Court observed that in attributing the impugned statements to the applicant and ordering him to pay damages in respect of those statements, the domestic courts had indirectly stifled the exercise of his freedom of expression. The Court held that Article 10 of the Convention was applicable because, if the applicant’s argument proved to be correct, the damages he had been ordered to pay would have been likely to discourage him from making criticisms of that kind in future (see Stojanović v. Croatia, no. 23160/09, § 39, 19 September 2013). 41. The Court observes that, in the present case, the applicant’s criminal conviction for defamation was indisputably directed at activities falling within the scope of freedom of expression, as noted above, and that the applicant was sanctioned for engaging in such activities, despite his denial of the authorship of the letters in question. The Court considers that in such circumstances, the applicant’s conviction must, similarly to the above ‑ mentioned cases of Müdür Duman and Stojanović, be regarded as constituting an interference with his exercise of his right to freedom of expression. (b) As to the objection that the applicant had abused the protection of freedom of expression contrary to Article 17 of the Convention 42. The Court will now examine the Government’s objection that the views expressed by the applicant ran counter to the text and spirit of the Convention and that he therefore could not, under Article 17 of the Convention, rely on Article 10 as regards his impugned statements. 43. The Court has found that any “remark directed against the Convention’s underlying values” is removed from the protection of Article 10 by Article 17 (see M’Bala M’Bala v. France (dec.), no. 25239/13, § 33, ECHR 2015 (extracts)). Article 17 is only applicable on an exceptional basis and in extreme cases and should, in cases concerning Article 10 of the Convention, only be resorted to if it is immediately clear that the impugned statements sought to deflect this Article from its real purpose by employing the right to freedom of expression for ends clearly contrary to the values of the Convention (see Perinçek v. Switzerland [GC], no. 27510/08, § 114, ECHR 2015 (extracts)). The decisive point when assessing whether statements are removed from the protection of Article 10 by Article 17, is whether those statements are directed against the Convention’s underlying values, for example by stirring up hatred or violence, or whether by making the statement, the author attempted to rely on the Convention to engage in an activity or perform acts aimed at the destruction of the rights and freedoms laid down in it ( Pastörs v. Germany, no. 55225/14, § 37, 3 October 2019). 44. In the case at hand the applicant was convicted of making allegations about the mismanagement of public funds, labour law infringements, and various flaws in the organisation of a public museum (of which the applicant was an employee) and its director. Although the manner in which the applicant acted may be considered objectionable in light of the Court’s case-law as referred to above, the content of the impugned remarks does not justify the application of Article 17 of the Convention. 45. In view of the above, the Court finds that the applicant cannot be deprived of the protection of Article 10 of the Convention by Article 17 of the Convention. (c) As to the objection that the applicant had abused of the right of individual application within the meaning of Article 35 § 3 (a) of the Convention 46. It remains for the Court to examine the Government’s objection that the applicant had abused the right of individual application because, by denying being the author of the letters and by making false statements about the museum, he had tried to mislead the domestic courts and this Court. 47. The Court reiterates that an application may be rejected as abusive if, among other reasons, it was knowingly based on untrue facts (see Gross v. Switzerland [GC], no. 67810/10, § 28, ECHR 2014 with further references, and Pytel v. Poland, no. 9257/11, § 19, 30 August 2016 with further references). Incomplete and therefore misleading information may also amount to abuse of the right of application, especially if the information concerns the very core of the case and no sufficient explanation is given for the failure to disclose that information (see Gross, cited above, § 28; Bestry v. Poland (dec.), no. 57675/10, 3 November 2015; and Hüttner v. Germany (dec.), no. 23130/04, 19 June 2006). In principle, any conduct on the part of an applicant that is manifestly contrary to the purpose of the right of individual application as provided for in the Convention and which impedes the proper functioning of the Court or the proper conduct of the proceedings before it can be considered as an abuse of the right of application (see Chim and Przywieczerski v. Poland, no. 36661/07, § 189, 12 April 2018, and Miroļubovs and Others v. Latvia, no. 798/05, § 65, 15 September 2009). The applicant’s intention to mislead the Court must always be established with sufficient certainty (see Gross, cited above, § 28, with further references). 48. In the present case the applicant, while making his Article 10 complaint, denied that he was the author of written statements for which he had been convicted by the domestic court. That, in fact, was his line of defence before the criminal court. 49. In the light of its considerations in the case of Müdür Duman (cited above, see paragraph 39 above), the Court finds that the fact that the domestic court ultimately found, on the basis of evidence, that the applicant was in fact the author of the statements in question does not preclude the applicant from reiterating his original position before this Court. In any event, for reasons which the Court has already stated in paragraph 41 above, the core issue in the present case is not whether the domestic court had erred in finding the applicant responsible for the impugned statements but, rather, whether, assuming that he was the author, the imposition of a criminal sanction on him for the offence of defamation was justified under paragraph 2 of Article 10 of the Convention. 50. The Court concludes from the above that there is no basis for finding that the applicant submitted untrue information concerning the very core of the case with the intention of misleading the Court and thereby abused his right of individual petition. 51. The Court further notes that the application is neither manifestly ill ‑ founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. MeritsSubmissions by the parties Submissions by the parties Submissions by the parties (a) The applicant 52. The applicant argued that the interference in his case had been unlawful in that Article 212 of the Criminal Code, which had been the basis of his conviction for libel, had reversed the burden of proof, placing it on the defendant. It thus required the applicant to prove that the person who had written the impugned letters had done so legitimately because his or her accusations were true. The applicant, not being the author of the statements in question, had had no knowledge about their alleged false character. 53. Moreover, the applicant submitted that his application ought to be examined within the context of a whistle-blower’s freedom to impart information. The interference in his case had thus been unjustified and disproportionate within the meaning of paragraph 2 of Article 10 of the Convention. To that end the applicant made the following observations. 54. The author of the letters in question had not acted out of any personal motivation or gain but in the public interest – namely, in order to ensure the lawful and rational management of public funds, a respectful work environment and the preservation of the national heritage. In the case of the museum, those interests had, in the author’s view, been threatened by corruption, work harassment, the embezzlement of public funds and the mishandling of exhibits. 55. The author of the letters had denounced the shortcomings that, as to his or her best knowledge, had taken place at the museum. In the absence of legislation concerning whistle-blowers at the material time, the person in question had not had any alternative channels of bringing his or her suspicions to the attention of the authorities concerned. In the applicant’s opinion, it would have been pointless to bring the issue to the attention of the museum’s director as the allegations had been made against that very person. 56. Furthermore, the applicant claimed that the author of the letters had had reasonable grounds for fearing that the evidence would have been concealed or destroyed if he or she had first reported the issue to the museum’s management. In the present case, therefore, it had clearly been impracticable for the person making the impugned statements to inform his or her superiors of the suspicions. Still, the author had chosen not to inform the public but had rather reported the alleged wrongdoings to the appropriate bodies that had had authority to examine the case. 57. The applicant also submitted that it would have been unreasonable to expect that citizens, who otherwise were under a statutory duty to denounce wrongful acts to prosecutors under Article 304 of the Code of Criminal Procedure, should only report situations which they were absolutely sure of and for which they had evidence. After all, it was up to the police or other public authorities to investigate the matters brought to their attention. One should therefore not be prosecuted for denouncing a wrongful act in good faith. Such approach would have a chilling effect on the colleagues of such a whistle-blower. 58. The applicant also argued that, in any event, in the light of the results of the audit that had been carried out at the museum, the statements made in the impugned letters might well have been considered true. 59. The applicant furthermore submitted that the domestic court had committed an error of fact as the applicant had not been the author of the letters. The domestic courts had also failed to examine the applicant’s case from the perspective of the protection of a whistle-blower. They had also disregarded several important elements of the case, namely: the fact that (i) the impugned statements had been made in sealed anonymous letters, the content of which had never been made public; and (ii) the statements concerned a public institution and its director, thus, a public official who did not enjoy the same degree of protection of his private life or of his reputation as would a private person. 60. On that latter point, the applicant submitted that the museum, as a legal person and a public entity, could not rely on the considerations of the right to respect for private life guaranteed by Article 8 of the Convention. That right was, after all, inherently attributable to victims who were private and physical persons. It followed that, in the applicant’s opinion, the present application was not about the balancing of two rights that were equally protected by the Convention. 61. Lastly, the applicant argued that the sanction that had been imposed on him had been completely disproportionate, bearing in mind the fact that he had also been dismissed from work and ordered to compensate the museum in civil proceedings (see paragraphs 22, 29 and 30 above). The applicant also stressed that his conviction had deprived him of the possibility to work in his chosen profession elsewhere. (b) The Government 62. The Government argued that the interference in question had been justified under paragraph 2 of Article 10 of the Convention. 63. In particular, the applicant’s statements had been anonymous and untrue, and, as such, they could therefore not have gained the protection guaranteed to a whistle-blower. Moreover, the applicant had not wished to protect any common good; rather, he had acted with the sole aim of hurting his employer’s reputation. The allegations that he had made had attained the requisite level of seriousness and could well have infringed on P.Ś.’ Article 8 rights. 64. The national authorities had therefore struck a fair balance between two equally important Convention rights: that of the applicant’s freedom of expression, as guaranteed by Article 10 of the Convention; and that of protecting the reputation of the museum and its director, as recognised by Article 8 of the Convention. The domestic courts, in adjudicating the applicant’s case, had thoroughly analysed the above-mentioned conflict of interests, against the facts of the case. Those facts had been established on the basis of reliable and exhaustive evidence. 65. The sanction imposed on the applicant at the conclusion of the impugned criminal proceedings had been proportionate to the nature and the severity of his prohibited conduct and its consequences. On the other hand, in determining the level of the fine, the domestic courts had well taken into consideration the applicant’s financial situation. The Court’s assessment (a) General principles 66. The general principles regarding an assessment of whether an interference with the exercise of the right to freedom of expression was “necessary in a democratic society” within the meaning of Article 10 § 2 of the Convention are well-settled in the Court’s case-law. They were restated in Pentikäinen v. Finland ([GC], no.11882/10, § 87, ECHR 2015), Bédat v. Switzerland ([GC], no. 56925/08, § 48, 29 March 2016) and summarised in Perinçek (cited above, § 196). 67. In addition, it is to be reiterated that the Court must ascertain whether the domestic authorities struck a fair balance between the protection of freedom of expression as enshrined in Article 10 and the protection of the reputation of those against whom allegations have been made, a right which, as an aspect of private life, is protected by Article 8 of the Convention. 68. The relevant criteria that the Court relies on to balance the right to freedom of expression against the right to respect for private life were recapitulated in Perinçek, cited above, § 198). 69. In particular, the Court reiterates that reputation is protected by Article 8 of the Convention as part of the right to respect for private life (see Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, §§ 104-107, ECHR 2012; Axel Springer AG v. Germany [GC], no. 39954/08, §§ 87-88, 7 February 2012; Couderc and Hachette Filipacchi Associés v. France [GC], no. 40454/07, §§ 90-93, ECHR 2015 (extracts); and Perinçek, cited above, § 198). In order to fulfil its positive obligation to safeguard one person’s rights under Article 8, the State may have to restrict to some extent the rights secured under Article 10 for another person. When examining the necessity of that restriction in a democratic society in the interests of the “protection of the reputation or rights of others”, the Court may be required to verify whether the domestic authorities struck a fair balance when protecting two values guaranteed by the Convention which may come into conflict with each other in certain cases, namely, on the one hand, freedom of expression as protected by Article 10 and, on the other, the right to respect for private life as enshrined in Article 8 (see Bédat, cited above, § 74). 70. In cases which require the right to respect for private life to be balanced against the right to freedom of expression, the Court has held that the outcome of the application in question should not, in principle, vary according to whether it has been lodged with the Court under Article 8 of the Convention by the person who was the subject of the statements in question, or under Article 10 by the statements’ author. These rights deserve equal respect. Accordingly, the margin of appreciation should in principle be the same in both situations (see Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland [GC], no. 931/13, § 163, 27 June 2017). Moreover, in such cases the Court would require strong reasons to substitute its view for that of the domestic courts (see Von Hannover, cited above, § 107). 71. When it comes to the protection of the reputation of others, the Court has made a distinction between defamation of natural and legal persons. The Court has nevertheless left open the question of whether the “private life” aspect of Article 8 protects the reputation of a company (see Firma EDV für Sie, EfS Elektronische Datenverarbeitung Dienstleistungs GmbH v. Germany (dec.), no. 32783/08, § 23, 2 September 2014). On the other hand, within the context of Article 10 the Court has considered that the protection of a university’s authority was a mere institutional interest, which did not necessarily have the same strength as “the protection of the reputation or rights of others” within the meaning of Article 10 § 2 of the Convention (see Kharlamov v. Russia, no. 27447/07, § 29, 8 October 2015). On another occasion, the Court has acknowledged that a company has a right to defend itself against defamatory allegations, and that a general interest exists in protecting companies’ commercial viability and the wider economic good by limiting the damage caused by allegations which risked harming a company’s reputation (see Uj v. Hungary, no. 23954/10, § 22, 19 July 2011). In spite of that, the Court still sees a difference between the commercial reputational interests of a company and the reputation of an individual concerning his or her social status. Whereas the latter might have repercussions vis-à-vis a person’s dignity, for the Court, interests in respect of commercial reputation are devoid of that moral dimension ( ibid. ). 72. As the Court has affirmed with regards to the need to perform a balancing exercise between the right to reputation of a public institution with executive powers and freedom of expression, limits of permissible criticism are wider with regard to a public authority than in relation to a private citizen or even a politician. In a democratic system the actions or omissions of a body vested with executive powers must be subject to the close scrutiny not only of the legislative and judicial authorities but also of public opinion (see, mutatis mutandis, Şener v. Turkey, no. 26680/95, § 40, 18 July 2000; Lombardo and Others v. Malta, no. 7333/06, § 54, 24 April 2007; and Margulev v. Russia, no. 15449/09, § 53, 8 October 2019). 73. The Court has also distinguished between assertions of facts and value judgments. While the existence of facts can be demonstrated, the truth of value judgments is not susceptible of proof. At the same time, where allegations are made about the conduct of a third party, it may sometimes be difficult to distinguish between assertions of fact and value judgments (see, mutatis mutandis, Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 76, ECHR 2004 ‑ XI). 74. In case of assertion of facts, relying on the presumption of falsity and thus asking the author to demonstrate the truth of his or her assertions, as required under the applicable criminal provisions, does not necessarily contravene the Convention (see, mutatis mutandis, Kasabova v. Bulgaria, no. 22385/03, §§ 58-60, 19 April 2011; Rumyana Ivanova v. Bulgaria, no. 36207/03, §§ 39 and 68, 14 February 2008; Makarenko v. Russia, no. 5962/03, § 156, 22 December 2009; and Rukaj v. Greece (dec.), no. 179/08, 21 January 2010). However, an applicant clearly involved in a public debate on an important issue is required to meet a no more demanding standard than that of due diligence, as in such circumstances an obligation to prove the factual statements may deprive him or her of the protection afforded by Article 10 (see, mutatis mutandis, Monica Macovei v. Romania, no. 53028/14, § 75, 28 July 2020, with further references). At the same time, where an utterance amounts to a value judgment, the proportionality of the interference may depend on whether or not there exists a sufficient factual basis for the impugned statement, since even a value judgment may be excessive if it has no factual basis to support it. The more serious such an allegation is, the more solid the factual basis has to be (see De Haes and Gijsels v. Belgium, 24 February 1997, § 42, Reports of Judgments and Decisions 1997-I, and Lewandowska-Malec v. Poland, no. 39660/07, §§ 63 and 65, 18 September 2012). (b) Application of these principles to the case (i) Whether there was an interference 75. As the Court has already stated above, the applicant’s criminal conviction for libel constituted an interference with his exercise of his right to freedom of expression (see paragraph 41 above). (ii) Whether the interference was justified 76. The impugned interference was “prescribed by law”, as required by Article 10 of the Convention – namely by Article 212 of the Criminal Code (see Dorota Kania v. Poland (no. 2), no. 44436/13, § 70, 4 October 2016). The applicant’s submission concerning the reversed burden of proof under that provision will be addressed by the Court further below, as it is a matter pertaining to the test of “necessity in a democratic society” (see Kasabova, cited above, §§ 58-62). 77. The Court furthermore accepts that the interference pursued the legitimate aim of protecting the reputation or rights of others – namely, the good name of the museum, as well as its director and other members of the management – within the meaning of Article 10 § 2 of the Convention (see, Dorota Kania (no. 2), cited above, § 70). It notes that the interference further pursued the aim of ensuring the proper functioning of public institutions. 78. Thus, the only point at issue is whether the interference was “necessary in a democratic society” in order to achieve that aim. (iii) “Necessary in a democratic society” 79. In assessing the necessity of the interference, it is important to examine the way in which the relevant domestic authorities dealt with the case, and in particular whether they applied standards which were in conformity with the principles embodied in Article 10 of the Convention. (α) As to the denial of authorship 80. The Court notes at the outset that the applicant denied being the author of the written statements which were attributed to him by the domestic authorities and which are at the core of the present application (see paragraphs 7 and 33 above). 81. In the light of the material at hand, the Court cannot, however, consider that the domestic court has made a flagrant error of judgment on that point. The question of whether the applicant was the author of the letters in question was duly addressed by the trial courts of two levels of jurisdiction; moreover ample evidence, comprising (i) two reports by an expert in the forensic examination of documents and (ii) the testimony of several witnesses – was adduced (see paragraphs 20-22 above). 82. The Court will thus proceed on the fair assumption that the applicant was indeed the author of the impugned statements signed: “Staff of the Museum of Hunting and Equestrianism” (see paragraph 6 above). (β) As to the relevance of the Court’s case-law in respect of the protection of whistle-blowers 83. The Court should next consider whether the applicant’s reporting could be qualified, as argued by him, as whistle-blowing, within the meaning of its case-law. In this connection, the Court observes at the outset that the statements in question (see paragraphs 8-10 above) may be described as allegations about the embezzlement of public funds, corruption, labour law infringements, shortcomings in the organisation of the workplace, and the mishandling of exhibits. With the caveat that the full text of the impugned letters has not been communicated to the Court by the parties or reproduced by the domestic courts in wording of the relevant judgments, it appears that the allegations described above were of a general nature. Likewise, it is unknown whether the letters contained any specific request for an investigation into or verification of the allegations. 84. In the Court’s view, the general character of the impugned statements and the fact that they were strongly charged with the applicant’s value judgment, undermines, any seriousness of the irregularities that were being denounced in relation to the management and work conditions in the museum, the use of public funds and the preservation of national heritage (contrast, mutatis mutandis, Medžlis Islamske Zajednice Brčko and Others v. Bosnia and Herzegovina [GC], no. 17224/11, § 92, 27 June 2017; Fressoz and Roire v. France [GC], no. 29183/95, § 50, ECHR 1999‑I; Palomo Sánchez and Others v. Spain [GC], nos. 28955/06 and 3 others, § 72, ECHR 2011; and Boldea v. Romania, no. 19997/02, § 57, 15 February 2007). 85. The applicant, who was a civil servant, did not have any privileged or exclusive access to, or direct knowledge, of the information contained in the letters (see, by contrast, Aurelian Oprea v. Romania, no. 12138/08, § 59, 19 January 2016). In fact, before the domestic court, the applicant specifically stated that he had not had access to the financial documents of the museum and he did not know of incidents involving mismanagement, irregularities in accounting, bullying or inappropriate activity on the part of other employees (see paragraph 22 in fine, above). 86. Thus, with regard to the circumstances of the case, it does not seem that the applicant had secrecy or discretion duties with respect of his service and therefore his case cannot be equated to any case of public disclosure of in-house information in the public interest. Unlike as in the cases of whistle ‑ blowing, the applicant was not in the position of being the only person, or part of a small category of persons, aware of what was happening at work and thus best placed to act in the public interest by alerting the employer or the public at large ( a contrario, Guja v. Moldova, no. 14277/04, §§ 70-72, 12 February 2008). 87. It is also unclear whether the applicant has suffered any repercussions at his workplace as a consequence of the reporting of the alleged wrongdoing attributed to him. As it would appear, the applicant’s employment contract was terminated in circumstances which are not directly linked to the libel incident in question (see paragraph 22 above; and contrast, Guja, cited above, § 21). 88. In view of these above-mentioned factors, the Court does not find that the letters in question can be deemed to constitute whistle-blowing, as defined by the Court’s case-law (see Bucur and Toma v. Romania, no. 40238/02, § 93, 8 January 2013). (γ) As to the third parties affected 89. The Court observes that the allegations in question were, in part, personally directed at P.Ś., the museum’s director. The letters were not phrased in any insulting or obscene language (see paragraphs 9 and 10 above; see, by contrast, Skałka v. Poland, no. 43425/98, § 36, 27 May 2003), but, in the Court’s view, they clearly affected the director, other members of the management, as well as the institution which they ran. 90. On the basis of the contextual examination of the extracts of the disputed letters (see paragraphs 5, 7 and 22 above), the Court finds that the thrust of the impugned statements was, in equal measure, to (i) accuse P.Ś., in his capacity of the museum’s director, of conduct that appeared irregular or unlawful to the letters’ author, and to (ii) notify the competent State authorities thereof (see also, for the general principle governing the Court’s evaluation of statements, Nikowitz and Verlagsgruppe News GmbH v. Austria, no. 5266/03, §§ 25-26, 22 February 2007). 91. In this latter context, the Court has indeed dealt with cases involving defamation that had a bearing on an individual’s professional activities (a doctor in Kanellopoulou v. Greece, no. 28504/05, 11 October 2007; the director of a State-subsidised company in Tănăsoaica v. Romania, no. 3490/03, 19 June 2012; and judges in Belpietro v. Italy, no. 43612/10, 24 September 2013). 92. The present case, however, differs from the above-mentioned cases in that no legal action had been taken against the applicant by P.Ś. in a private capacity (see paragraphs 16, 24 and 29, above). On the other hand, the balancing of the Article 10 and Article 8 rights that was carried out by the domestic courts, was between, on the one hand, the applicant (as the author of the statements) and, on the other hand, the museum (as a public entity), P.Ś. and other members of its management (see paragraphs 24 and 25 above). 93. Having regard to its case-law (see paragraph 72 above), the Court concludes that, given the circumstances of the case, the values conflicting with the applicant’s freedom of speech that the domestic court was called to balance were not of equal weight. The protection of the museum’s good name (being an institutional interest, as opposed to a private concern), should not have been considered as having the same degree of importance as the protection of P.Ś. and other members of the museum’s management which falls under the category of “the protection of the reputation or rights of others” within the meaning of Article 10 § 2 of the Convention. Moreover, the limits of acceptable criticism of that institution’s management were wider than they would have been in relation to criticism of a private individual. (δ) As to the audience targeted by the impugned statements 94. The Court accepts the applicant’s argument that, in view of the fact that the allegations had concerned the museum’s director, it would have been impracticable to report the issue to that person (see paragraph 57 above). The Court also observes that the information in question was not revealed to the public but reported in private letters to those bodies that had authority to verify and, if necessary, to remedy the situation complained of (see paragraphs 5 and 59 above; see also, mutatis mutandis, above-cited cases of Guja, §§ 73 and 81; and Medžlis Islamske Zajednice Brčko and Others, §§ 90, 91 and 95). 95. In such cases the Court has considered that “the requirements of such protection have to be weighed not in relation to the interests of the freedom of the press or of open discussion of matters of public concern but rather against the applicant’s right to report irregularities in the conduct of State officials to a body competent to deal with such complaints” (see, mutatis mutandis, Zakharov v. Russia, no. 14881/03, § 23, 5 October 2006; Kazakov v. Russia, no. 1758/02, § 28, 18 December 2008; Siryk v. Ukraine, no. 6428/07, § 42, 31 March 2011; and Marinova and Others v. Bulgaria, nos. 33502/07 and 2 others, § 89, 12 July 2016). The Court’s case-law confirms that it is one of the precepts of the rule of law that citizens should be able to notify competent State officials about the conduct of public servants which to them appears irregular or unlawful (see, mutatis mutandis, Zakharov, cited above, § 26; Kazakov, cited above, § 28; and Siryk, cited above, § 42). 96. At the same time the Court notes that even a letter distributed within a small community, such as a public institution, can inevitably harm the reputation and professional image of the person concerned (see Peruzzi v. Italy, no. 39294/09, § 63, 30 June 2015). It cannot be said that civil servants knowingly lay themselves open to close scrutiny of their every word and deed to the extent to which politicians do and should therefore be treated on an equal footing with the latter when it comes to criticism of their actions. Civil servants must enjoy public confidence in conditions free of undue perturbation if they are to be successful in performing their tasks. It may therefore prove necessary to protect them from offensive and abusive verbal attacks in the course of their duties (see Peruzzi, cited above, § 52; see also Janowski v. Poland [GC], no. 25716/94, § 33, ECHR 1999 ‑ I, and Nikula v. Finland, no. 31611/96, § 48, ECHR 2002 ‑ II). By the same token, civil servants should also be protected against abusive denunciations. (ε) As to the consequences of the statements 97. The Court does not lose from sight the fact that calumnious denunciations to the competent authorities may result in investigating measures and may have very serious detrimental effects for the persons concerned, causing unnecessary stress and anxiety. Moreover, calumnious denunciations mean that the competent investigating or audit authorities can use more limited resources for the purposes of investigating or auditing other irregularities in the functioning of public authorities. 98. The Court has no doubt that the impugned statements caused damage to the good name of the museum and called into question the management capacities of its director (see paragraphs 9, 24 and 25 above). It also caused damage to the museum as such. The Court also notes that the preliminary criminal inquiry, which was at some point initiated and ultimately discontinued (see paragraph 14 in fine, above) had certainly an impact upon the museum’s director in that it had caused him anxiety and stress. 99. As to the consequences of the above-mentioned accusations being passed on to the authorities, the Court notes that in 2008 a series of management and tax audits of the museum were carried out by various public institutions (see paragraphs 12 and 13 above). On the basis of the material at hand, the Court notes that at least some of these audits had in fact been triggered by the impugned letters. Moreover, as stated by the Government and not effectively rebutted by the applicant, as a consequence of the actions attributed to the applicant, the museum had received less funding (see paragraph 15 above). (στ) As to the nature of the statements 100. Another important factor relevant for the balancing exercise in the present case, is the nature of the utterances. In the instant case, the domestic courts did not expressly determine to which category the statements attributed to the applicant belonged. They did consider, however, that they were untrue, that they had not been objectively confirmed, and that they had been, in fact, disseminated in full knowledge of their falsehood, with intent to harm the museum and its director (see paragraphs 25 in fine and 26 above). A similar argument was put forward by the Government (see paragraph 64 above). 101. The Court notes that the author did not refer throughout the text of the impugned letters to specific dates, persons or incidents (see, mutatis mutandis, Kwiecień v. Poland, no. 51744/99, § 54, 9 January 2007). He described in a general way the managerial shortcomings and the larger context in which they had allegedly occurred (see paragraphs 8-10 above). In particular, the applicant accused P.Ś. of theft, bullying the staff and using public funds for organising exhibitions in the interest of private persons. At the same time, part of the statements was strongly charged with the author’s subjective feelings and emotions. It appears therefore that the impugned utterances are a mix of assertions of facts and value judgments (compare Kaperzyński v. Poland, no. 43206/07, § 64, 3 April 2012; Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 66, ECHR 1999 ‑ III; Gąsior v. Poland, no. 34472/07, § 42, 21 February 2012; Dybek v. Poland (dec.) no. 62279/16, § 27, 25 September 2018; and Zybertowicz v. Poland, no. 59138/10, § 46, 17 January 2017). 102. The Court observes that the author of the impugned statements was a private individual and not a journalist, media or non-governmental organisation with a public watchdog function (contrast Bladet Tromsø and Stensaas, cited above, § 66, and Medžlis Islamske Zajednice Brčko and Others, cited above, § 109). As such, the author was not bound by the Article 10 “duties and responsibilities” – for example, the obligation to provide accurate and reliable information or to verify factual statements if such statements were being made – to the same extent as would have been required by the ethics of journalism (see Bladet Tromsø and Stensaas, cited above, §§ 65-66, and Błaja News Sp. z o. o. v. Poland, no. 59545/10, § 51, 26 November 2013). At the same time, instead of contacting the authorities overtly under his own name, the applicant decided to send anonymous poison-pen letters. 103. The applicant explains that the intention behind sending the letter was to help fighting corruption and other offences. The Court notes in this context that the applicant’s allegations not only proved false, but the applicant failed to adduce a sufficient factual basis to support his assertions of facts and value judgments. (ζ) As to the nature and severity of the penalty 104. Lastly, the Court reiterates that the nature and severity of the penalty imposed are also factors to be taken into consideration when assessing the proportionality of the interference (see Ceylan v. Turkey [GC], no. 23556/94, § 37, ECHR 1999-IV, and Malisiewicz-Gąsior v. Poland, no. 43797/98, § 68, 6 April 2006). While the use of criminal-law sanctions in defamation cases is not in itself disproportionate, the nature and severity of the penalties imposed are factors to be taken into account, because they must not be such as to dissuade the press or others who engage in public debate from taking part in a discussion of matters of legitimate public concern (see Lewandowska-Malec, cited above § 69, with further references). 105. In the instant case the applicant was criminally convicted; a fine was imposed on him in an amount equivalent to EUR 625. He was also ordered to pay various costs amounting to EUR 400 (see paragraph 19 above). The Court observes that the criminal conviction must obviously have had negative consequences for the applicant’s career – especially given the fact that he was a civil servant seeking re-employment (see, mutatis mutandis, Heinisch v. Germany, no. 28274/08, § 91, 21 July 2011). Nevertheless, the Court finds that the cumulative effect of in the circumstances of the present case, the criminal conviction or the aggregate amount of the financial penalties could not be considered as having had a chilling effect on the exercise by the applicant of his freedom of expression (in contrast with Lewandowska-Malec, cited above, § 70). Consequently, the sanction imposed on the applicant does not appear disproportionate. (c) The Court’s overall conclusion 106. In the light of the above considerations, the Court finds that in the case at hand, the domestic courts adduced sufficient and relevant reasons to justify the interference with the applicant’s freedom of expression. 107. There has accordingly been no violation of Article 10 of the Convention. | The Court accepted, in particular, that the interference with the applicant’s exercise of his right to freedom of expression, namely his criminal conviction for libel, had pursued the legitimate aim of protecting the reputation or rights of others – namely, the good name of the museum, as well as its director and other members of the management. In the present case, it held that there had been no violation of Article 10 (freedom of expression) of the Convention, finding that the Polish courts had adduced sufficient and relevant reasons to justify the interference with the applicant’s freedom of expression. |
331 | Demonstrators | II. RELEVANT DOMESTIC LAW A. Constitutional guarantees 17. Article 34 of the Constitution provides : “ Everyone has the right to hold unarmed and peaceful meetings and demonstration marches without prior permission. ... The formalities, conditions, and procedures governing the exercise of the right to hold meetings and demonstration marches shall be prescribed by law. ” B. The Demonstrations Act 18. At the material time section 10 of the Assemblies and Marches Act (Law no. 2911 ) was worded as follows : “In order for a meeting to take place, the governor's office or authorities of the district in which the demonstration is planned must be informed, during opening hours and at least seventy-two hours prior to the meeting, by a notice containing the signature of all the members of the organising board ... ” 19. Section 22 of the same Act prohibited demonstrations and processions on public streets, in parks, places of worship and buildings in which public services were based. Demonstrations organised in public squares had to comply with security instructions and not disrupt individuals'movement or public transport. Finally, section 24 provided that demonstrations and processions which did not comply with the provisions of this law would be dispersed by force on the order of the governor's office and after the demonstrators had been warned. C. Law No. 2559 on the Duties and Powers of the Police Article 16 “ The police may use firearms in the event of: (a) Self defence, ... ( h) if a person or a group resists the police and prevents them from carrying out their duties or if there is an attack against the police. ” Additional Article 6 (dated 16 June 1985 ) “In cases of resistance by persons whose arrest is necessary or by groups whose dispersal is necessary or of their threatening to attack or carrying out an attack, the police may use violence to subdue these actions. Use of violence refers to the use of bodily force, physical force and all types of weapons specified in the law and it gradually increases according to the nature and level of resistance and attack in such a way as to restore calm. In cases of intervention by group forces, the extent of the use of force and the equipment and instruments to be used are determined by the commander of the intervening force.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 20. The applicants complained under Article 3 of the Convention that the force used during their arrest was excessive and disproportionate and constituted ill-treatment. Article 3 reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 1. The Government's preliminary objections 21. The Government asked the Court to dismiss this complaint for failure to comply with the requirement of exhaustion of domestic remedies under Article 35 § 1 of the Convention. They argued that the applicants could have sought reparation for the harm allegedly suffered by instituting an action in the administrative courts. They further maintained that this part of the application was not lodged within the six-month time-limit. 22. As regards the Government's preliminary objection concerning the non-exhaustion of domestic remedies, the Court reiterates that it has already examined and rejected the Government's preliminary objections in similar cases (see, in particular, Karayiğit v. Turkey (dec.), no. 63181/00, 5 October 2004 ). It finds no particular circumstances in the instant case which would require it to depart from its findings in the above-mentioned application. Consequently, it rejects this part of the Government's preliminary objection. 23. As regards the Government's second objection concerning the six-month rule, the Court reiterates that under Article 35 § 1 of the Convention, it may deal with an application within a period of six months from the date on which the final decision was taken. In the instant case, the final decision concerning the applicants'allegations of ill-treatment was delivered on 25 June 2001 by the Istanbul Assize Court. As the application was lodged with the Court on 20 September 2001, this part of the application was introduced with the Court within the six-month time-limit. In view of the foregoing, the Court also rejects this part of the Government's objections. 2. As regards the applicants Mr Erkal Balçık, Mr Kubilay İyit, Ms Filiz Kalkan, Ms Meral Kalanç and Ms Gülsen Dinler 24. The Court recalls that allegations of ill-treatment must be supported by appropriate evidence. To assess this evidence, it has generally applied the standard of proof “beyond reasonable doubt” ( see Talat Tepe v. Turkey, no. 31247/96, § 48, 21 December 2004). Such proof may, however, follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact ( see Labita v. Italy [GC], no. 26772/95, § 121, ECHR 2000 ‑ IV). 25. In the instant case, the applicants Mr Erkal Balçık, Mr Kubilay İyit, Ms Filiz Kalkan, Ms Meral Kalanç and Ms Gülsen Dinler complained that they had been injured as a result of the excessive use of force by the police to disperse the demonstration. Nonetheless, several elements cast doubt on the veracity of the applicants'claims. The Court observes that, although the applicants were released the day after the incident, they have not submitted any medical reports in support of their complaint nor adduced any material which could add probative weight to their allegations. There is nothing in the case file to show that the applicants had been injured as alleged during the incident. 26. In view of the above, the Court concludes that the applicants, Mr Erkal Balçık, Mr Kubilay İyit, Ms Filiz Kalkan, Ms Meral Kalanç and Ms Gülsen Dinler, have not substantiated their claims and this part of the application should therefore be declared inadmissible as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention. 3. As regards the applicants Ms Semiha Kırkoç and Ms Sema Gül 27. The Court notes that the Article 3 complaint lodged by Ms Semiha Kırkoç and Ms Sema Gül is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 28. As the Court has underlined on many occasions, Article 3 enshrines one of the most fundamental values of democratic societies, making no provision for exceptions and no derogation from it is permissible under Article 15 § 2 (see Selmouni v. France [GC], no. 25803/94, § 95, ECHR 1999-V; Assenov and Others v. Bulgaria, judgment of 28 October 1998, Reports of Judgments and Decisions 1998-VIII, p. 3288, § 93). 29. As stated above, in assessing evidence, the standard of proof “beyond reasonable doubt” is generally applied (see Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, pp. 64-65, § 161). However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII). Further, where allegations are made under Articles 2 and 3 of the Convention, the Court must apply a particularly thorough scrutiny (see, mutatis mutandis, Ribitsch v. Austria, judgment of 4 December 1995, Series A no. 336, p. 24, § 32). 30. The Court notes that in the present case it is undisputed between the parties that the injuries observed on the two applicants, namely on Ms Semiha Kırkoç and Ms Sema Gül, had been caused as a result of the use of force by the police during the incident on 5 August 2000. This is also indicated by the incident report which stated the police had to use force to disperse the group of demonstrators. 31. Having regard to the above, the Court considers that the burden rests on the Government to demonstrate with convincing arguments that the use of force was not excessive. 32. The Court observes that, although no prior notification was given to the authorities about the meeting, the police had received intelligence reports that there would be a gathering in the İstiklal Street on 5 August 2000. The security forces were thus able to take preventive measures. The area concerned was secured by numerous police officers and members of the rapid intervention force. As a result, in the particular circumstances of the present case, it cannot be said that the security forces were called upon to react without prior preparation (see Rehbock v. Slovenia, no. 29462/95, § 72, ECHR 2000 ‑ XII ). The Court notes that the group did not obey the police warnings to disperse. However, as explained in detail below (see paragraphs 51-54 below), there is nothing in the case file to suggest that the demonstrators presented a danger to public order. At this point, the Court also refers to the judgment of the Beyoğlu Criminal Court dated 19 September 2005 by which the applicants were acquitted of the charges against them. The domestic court held that, by making a press declaration, the accused had exercised their constitutional rights and had not committed any offence. 33. In these circumstances, the Court finds that the Government have failed to furnish convincing or credible arguments which would provide a basis to explain or to justify the degree of force used against the applicants, whose injuries are corroborated by medical reports. As a result, it is concluded that the injuries of Ms Semiha Kırkoç and Ms Sema Gül were the result of treatment for which the State bore responsibility. 34. It follows that there has been a violation of Article 3 in respect of Ms Semiha Kırkoç and Ms Sema Gül. II. ALLEGED VIOLATION OF ARTICLES 9, 10 AND 11 OF THE CONVENTION 35. The applicants alleged that the police intervention in the meeting constituted a violation of their freedom of thought, freedom of expression and freedom of assembly. In this respect, they invoked Articles 9, 10 and 11 of the Convention. 36. The Court considers that the applicants'complaints should be examined from the standpoint of Article 11 alone, which reads: “ 1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.” A. Admissibility 37. The Government suggested that, since the applicants were acquitted of the charges against them in 2005, they could no longer be considered as victims within the meaning of Article 34 of the Convention. 38. The Court considers that the Government's argument alleging that the applicants could not claim that they had been victims of a breach of their right under Article 11 of the Convention raises a question which is closely linked to the merits of the complaint. It therefore joins the preliminary objection of the Government to the merits ( Bączkowski and Others v. Poland, no. 1543/06, § § 45-48, 3 May 2007 ). 39. The Court further notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. Existence of any interference with the applicants'rights 40. The Court recalls in the first place that according to the Convention organs'constant approach, the word “victim” of a breach of rights or freedoms denotes the person directly affected by the act or omission which is in issue ( see Marckx v. Belgium, judgment of 13 June 1979, Series A no. 31, § 27; Dudgeon v. the United Kingdom, judgment of 22 October 1981, Series A no. 45, § 41 ). 41. In the present case, there is no dispute between the parties as to the initial existence of an interference with the applicants'right of assembly. The Court acknowledges that the domestic court acquitted the applicants of the charges against them. However it cannot overlook the fact that this decision was delivered on 19 September 2005, almost 5 years after the incident. It also notes that by participating in this meeting, the applicants aimed to draw attention to F-type prison conditions, which was a topical issue at the time. In the Court's view, the interference in the meeting, the force used by the police to disperse the participants and the subsequent prosecution could have had a chilling effect and discouraged the applicants from taking part in similar meetings (see Bączkowski and Others, cited above, § 67-68). 42. In view of the above, the Court considers that the applicants were negatively affected by the police intervention and subsequent criminal proceedings brought against them, irrespective of the final result. 2. Justification for the interference 43. The Government stated that the meeting in question had been organised unlawfully in that no advance notification had been sent to the relevant authorities. They pointed out that the second paragraph of Article 11 imposed limits on the right of peaceful assembly in order to prevent disorder. 44. The Court reiterates that an interference will constitute a breach of Article 11 unless it is “prescribed by law”, pursues one or more legitimate aims under paragraph 2 and is “necessary in a democratic society” for the achievement of those aims. 45. In this connection, it is noted that the interference in the present case had a legal basis, namely section 22 of Law No. 2911 (Assemblies and Marches Act), and was thus “prescribed by law” within the meaning of Article 11 § 2 of the Convention. As concerns legitimate aim, the Government submitted that the interference pursued the legitimate aim of preventing public disorder and the Court finds no reason to differ. 46. Turning to the question of whether the interference was “necessary in a democratic society, the Court refers in the first place to the fundamental principles underlying its judgments relating to Article 1 1 ( see Djavit An v. Turkey, no. 20652/92, §§ 56 ‑ 57, ECHR 2003 ‑ III; Piermont v. France, judgment of 27 April 1995, Series A no. 314, §§ 76 ‑ 77; and Plattform “ Ärzte für das Leben ” v. Austria, judgment of 21 June 1988, Series A no. 139, p. 12, § 32). It is clear from this case-law that the authorities have a duty to take appropriate measures with regard to lawful demonstrations in order to ensure their peaceful conduct and the safety of all citizens (see Oya Ataman v. Turkey, no. 74552/01, § 35, ECHR 2006 ‑ .... ). 47. The Court also notes that States must not only safeguard the right to assemble peacefully, but also refrain from applying unreasonable indirect restrictions upon that right. Finally, it considers that, although the essential object of Article 11 is to protect the individual against arbitrary interference by public authorities with the exercise of the rights protected, there may in addition be positive obligations to secure the effective enjoyment of these rights ( see Djavit An, cited above, § 57; Oya Ataman, cited above, § 36). 48. As a preliminary point, the Court considers that these principles are also applicable with regard to demonstrations and processions organised in public areas. It notes, however, that it is not contrary to the spirit of Article 11 if, for reasons of public order and national security, a priori, a High Contracting Party requires that the holding of meetings be subject to authorisation and regulates the activities of associations ( see Djavit An, cited above, §§ 66 ‑ 67). 49. Having regard to the domestic legislation, the Court observes that at the material time no authorisation was required for the holding of public demonstrations; however, notification was required seventy-two hours prior to the event. In principle, regulations of this nature should not represent a hidden obstacle to the freedom of peaceful assembly as it is protected by the Convention. It goes without saying that any demonstration in a public place may cause a certain level of disruption to ordinary life and encounter hostility. In the Court's opinion, it is important that preventive security measures such as, for example, the presence of first-aid services at the site of demonstrations, be taken in order to guarantee the smooth conduct of any event, meeting or other gathering, be it political, cultural or of another nature. This being so, associations and others organising demonstrations, as actors in the democratic process, should respect the rules governing that process by complying with the regulations in force (see Oya Ataman, cited above, §§ 38 and 39). 50. It appears from the evidence before the Court that, in the instant case, the group of demonstrators was informed by the police that their march was unlawful and would disrupt public order at a busy time of the day, and had been ordered to disperse. The applicants and other demonstrators did not comply with these orders and attempted to continue their march. 51. However, there is no evidence to suggest that the group presented a danger to public order, apart from possibly blocking the tram line. The Court notes that the group in question consisted of forty-six persons, who wished to draw attention to a topical issue, namely the F-type prison conditions. It is observed that the rally began at about noon and ended with the group's arrest within half an hour at 12.30 p.m. The Court is therefore particularly struck by the authorities'impatience in seeking to end the demonstration. At this point, the Court also recalls that although no notification had been given, the authorities had prior knowledge (see, a contrario, Oya Ataman, cited above) that such a demonstration would take place on that date and could have therefore taken preventive measures. 52. In the Court's view, where demonstrators do not engage in acts of violence, it is important for the public authorities to show a certain degree of tolerance towards peaceful gatherings if the freedom of assembly guaranteed by Article 11 of the Convention is not to be deprived of all substance. 53. Accordingly, the Court considers that in the instant case the police's forceful intervention was disproportionate and was not necessary for the prevention of disorder within the meaning of the second paragraph of Article 11 of the Convention. 54. In view of the above, the Court therefore dismisses the Government's preliminary objection regarding the applicant's alleged lack of victim status and concludes that there has been a violation of Article 11 of the Convention. III. ALLEGED VIOLATIONS OF ARTICLES 7, 17 AND 18 OF THE CONVENTION 55. The applicants maintained under Article 7 of the Convention that they had been arrested and the criminal proceedings had been brought against them on account of an act which did not constitute a criminal offence under domestic law. The applicants also complained that the unlawful restrictions placed on their right to freedom of thought, freedom of expression and freedom of assembly, the criminal proceedings brought against them and their inability to raise their complaints before the domestic judicial authorities into their allegations constituted a violation of Articles 17 and 18 of the Convention. 56. The Court notes that these complaints are linked to the one examined above and must likewise be declared admissible. 57. Referring to its finding of a violation under Article 11 of the Convention (see paragraphs 52-54 above), the Court considers that it has examined the main legal question raised in the present application. 58. Having regard to the facts of the case and the submissions of the parties, the Court concludes that there is no need to give a separate ruling on these complaints (see Uzun v. Turkey, no. 37410/97, § 64, 10 May 2007; Sadak and Others v. Turkey, nos. 29900/96, 29901/96, 29902/96 and 29903/96, § 73, ECHR 2001 ‑ VIII ). IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 59. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 60. The applicants claimed 10,000 euros (EUR) each in respect of non-pecuniary damage. 61. The Government contested this claim. 62. The Court considers that the applicants are sufficiently compensated by the finding of a violation of Article 11 of the Convention (see Oya Ataman, cited above, § 48). However, as regards the finding of a violation of Article 3 in respect of two applicants, namely Ms Sema Gül and Ms Semiha Kırkoç, the Court, ruling on an equitable basis, awards these two applicants EUR 3,000 each in respect of non-pecuniary damage. B. Costs and expenses 63. The first applicant claimed EUR 3,500 and the remaining six applicants claimed EUR 5,500 for the costs and expenses incurred before the Court. 64. The Government contested these claims. 65. According to the Court's case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, the Court notes that the applicants solely referred to the Istanbul Bar Association's scale of fees and failed to submit any supporting documents. The Court therefore does not award any sum under this head. C. Default interest 66. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court noted, in particular, that five of the applicants had not submitted any medical reports or other evidence which could prove their allegations of ill-treatment and therefore dismissed their complaints under Article 3 (prohibition of inhuman or degrading treatment) of the Convention. Concerning, however, the two other applicants, it was undisputed between the parties that the injuries observed on them had been caused by the use of force by the police during the incident. In their case, noting, in particular, that it could not be said that the security forces had been called upon to react without prior preparation, and that there was nothing in the case file to suggest that the demonstrators had presented a danger to public order, the Court found that the Turkish Government had failed to provide convincing or credible arguments which could explain or justify the degree of force used against the applicants, whose injuries had been corroborated by medical reports. Those injuries had therefore been the result of treatment for which the State bore responsibility, and there had, accordingly, been a violation of Article 3 of the Convention concerning the two applicants. |
1,044 | Military, political and economic influence | II. RELEVANT REPORTS OF INTER-GOVERNMENTAL AND NON ‑ GOVERNMENTAL ORGANISATIONS A. The United Nations 61. The relevant parts of the Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Manfred Nowak, concerning his visit to the Republic of Moldova from 4 to 11 July 2008 (UN Human Rights Council, 12 February 2009, UN Doc. A/HRC/10/44/Add.3), read as follows. “ Transnistrian region of the Republic of Moldova ... 29. The Special Rapporteur also received information that in the Transnistrian region of the Republic of Moldova transfers of prisoners are conducted by the police. Prisoners are packed on top of each other in a metal wagon with only one tiny window. In the summer the heat in the wagon becomes unbearable after a few minutes but they have to stay inside for hours. Different categories of prisoners are mixed during these transports (adults, minors, sick, including those with open tuberculosis), which puts the prisoners at risk of contamination with diseases. ... 45. According to several of his interlocutors, including detainees, progress has been made with improving conditions in the penitentiary system, e.g. functioning heating, food quality improved, HIV treatment in prisons commenced in September 2007. However, complaints about the poor quality and sometimes lack of food were common. The Special Rapporteur also received reports that international programmes are often not extended into the Transnistrian region of the Republic of Moldova, which means less out-reach in terms of health care and problems in particular with regard to tuberculosis treatment and a higher percentage of persons sick with tuberculosis and HIV. 46. The Special Rapporteur is concerned that many human rights violations flow from the legislation in force, which, for instance, requires solitary confinement for persons sentenced to capital punishment and to life imprisonment and which prescribes draconic restrictions on contacts with the outside world. 47. Conditions in custody of the militia headquarters in Tiraspol were clearly in violation of minimum international standards. The Special Rapporteur considers that detention in the overcrowded cells with few sleeping facilities, almost no daylight and ventilation, 24 hours artificial light, restricted access to food and very poor sanitary facilities amounts to inhuman treatment.” 62. The relevant parts of the “Report on Human Rights in the Transnistrian Region of the Republic of Moldova” (by UN Senior Expert Thomas Hammarberg, 14 February 2013) read as follows. “... the de facto authorities in Transnistria have ... pledged unilaterally to respect some of the key international treaties, including the two UN Covenants on human rights, the European Convention on Human Rights and the Convention on the Rights of the Child.” (p. 4) “The changes of the role of the Prosecutor and the creation of the Investigation Committee would have an impact on the functioning of the judiciary as well. If correctly implemented, it would be clear that the Prosecutor would not have an oversight or supervisory role in relation to the functioning of the courts.” (p. 17) “The Expert was confronted with many and fairly consistent complaints against the functioning of the justice system. One was that the accusations in a number of cases were ‘ fabricated ’; that procedures were used to intimidate persons; that the defence lawyers were passive; that people with money or contacts had an upper-hand compared to ordinary people; and that witnesses changed their statements because of threats or bribery – and that such tendencies sabotaged the proceedings. It is very difficult for an outsider to assess the basis for such accusations but some factors made the Expert reluctant to ignore them. They were strikingly frequent and even alluded to by a few high level actors in the system.” (p. 18) “ Comments Building a competent, non-corrupt and independent judiciary is a huge challenge in any system. However, it is an indispensable human right to have access to independent and impartial tribunals. The Transnistrian Constitution states that judges cannot be members of political parties or take part in political activities. It is as important that the judiciary avoids close relationships with big business or organized partisan interests. The procedures for the recruitment of judges should be impartial and reward professional skills and high moral standards. Corrupt behaviour and other breaches of trust should be investigated and punished through a credible and competent disciplinary mechanism. A reasonable salary level will also counter temptations of accepting bribes. The judge has a crucial role in protecting the principle of ‘ equality of arms ’. The Expert heard complaints that the defence in general was disadvantaged in comparison with the prosecution. Such perceptions undermine the credibility of the system and the sense of justice in general. The prestige of judges in society will of course depend largely on their competence, their knowledge of the laws and the case law as well as familiarity with problems in society. Update training is one way of meeting this need. Special training is needed for those judges involved in juvenile justice matters. The United Nations adopted a set of basic principles on the Independence of the Judiciary, which were unanimously endorsed by the General Assembly in [1985]. These principles, representing universally accepted views on this matter by the UN Member States, set out parameters to ensure independence and impartiality of the judges, condition of service and tenure, freedoms of expression and association and modalities for qualification, selection and trainings. [Office of the UN High Commissioner for Human Rights] and the International Bar Association have jointly developed extensive guidance material on human rights in the administration of justice, which might also be used for the training of legal professionals working in the Transnistrian region. The Expert considers that an evaluation ought to be undertaken on the present situation with regard to minors in detention, including, inter alia, their length of stay, their individual background as well as efforts to assist their reintegration in society. Such survey could serve as a background to a review of the whole approach to juvenile crime. The Expert feels that there is an acute need to develop preventive programmes and alternatives to institutional punishment. ... The Expert was informed that there were, as of October 1, 2 858 inmates in these institutions, of whom 2 224 were convicted and 634 held on remand. This means that there are approximately 500 prisoners per every 100 000 persons, one of the highest figures in Europe. The number had gone down during 2012 from an even higher figure as a consequence of releases through reduction of sentences and pardons granted to a considerable number of prisoners. Furthermore, the Code of Criminal Procedure was amended in the autumn in order to reduce the number of persons kept on remand during investigations. Another amendment opened for alternatives to imprisonment, such as fines or controlled, non ‑ penitentiary community work, for the less serious crimes. Detention on remand When the Expert visited the remand facility in prison no. 3 in Tiraspol, there were 344 detainees kept there. Some were under investigation before trial. Others had been charged and were defendants at court proceedings. Still others had appealed a sentence in the first instance. None of these three categories had an unconditional right to receive visitors. The reason given was that visits might disturb the investigations. However, relatives may on request get permission from the investigator or the judge to pay a visit, though not in private. ... The Expert talked with inmates who had been kept on remand longer than 18 months. One woman who had appealed an original sentence had been detained for four years. Her two small children had been taken to a children ’ s home and she had not been able to see them for the entire period of her detention. The Expert was told that the total detention period before and during a trial could be as long as seven years. ... Penitentiary facilities in Tiraspol and Glinnoe The Expert visited the colony in Tiraspol (prison no. 2) in May and the one in Glinnoe (prison no. 1) in September. The former had at the time 1 187 inmates, of whom 170 were under strict special regime. The average sentence was 13 years, the Expert was told. Terms of 22-25 years are being served for murder, repeat offences and trafficking crimes. In Glinnoe, the Expert was told that there were 693 convicted prisoners; the number had gone down as a consequence of the recent revision of the Criminal Code. The Expert was told that the average sentence was 5 years though many prisoners had sentences of between 10 and 15 years. ... The possibility of visits by relatives was limited. In Tiraspol no. 2, the basic rule was to allow visits four times a year, two short and two longer. Phone calls were allowed for 15 minutes once a month – with supervision except for discussions with the lawyer. Both visits and phone calls could be reduced as a method of disciplinary sanction. Such measures were taken in cases of infringements such as possessing alcohol or having a mobile telephone. Disciplinary measures could also include solitary confinement of up to 15 days. ... Health situation in prisons Health service in the penitentiary institutions is also under the authority of the Transnistrian Ministry of Justice; doctors and nurses there are seen as part of the prison staff. The resources are limited and the Expert found the health situation, in particular in the Glinnoe prison, to be alarming and the care services substandard. There is limited communication with the civilian health system which results in low coverage with testing and treatment. ... Few human resources and limited capacities of existing medical personnel create barriers to enjoying access to quality medical services in penitentiaries. The standard of health care in the Glinnoe prison appeared to the Expert to be especially bad on all accounts, including on record keeping and preventive measures such as diet control. There, the complaints about the quality of the food were particularly bitter.” (pp. 19 ‑ 23) B. European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) 63. In the report on its visit to Moldova between 21 and 27 July 2010 (CPT/Inf (2011) 8) the CPT stated that, following the refusal of the “MRT” authorities to allow members of the Committee to meet in private with detainees, the CPT had decided to call off its visit because a limitation of this kind ran counter to the fundamental characteristics of the prevention mechanism enshrined in its mandate. 64. The relevant parts of the report of the CPT on its visit to Moldova between 27 and 30 November 2000 (CPT/Inf (2002) 35) read as follows. “40. At the outset of the visit, the authorities of the Transnistrian region provided the delegation with detailed information on the five penitentiary establishments currently in service in the region. In the time available, the delegation was not in a position to make a thorough examination of the whole of the penitentiary system. However, it was able to make an assessment of the treatment of persons deprived of their liberty in Prison No. 1, at Glinoe, Colony No. 2, at Tiraspol, and the SIZO (i.e. pre-trial) section of Colony No. 3, again at Tiraspol. 41. As the authorities are certainly already aware, the situation in the establishments visited by the delegation leaves a great deal to be desired, in particular in Prison No. 1. The CPT will examine various specific areas of concern in subsequent sections of this report. However, at the outset, the Committee wishes to highlight what is perhaps the principal obstacle to progress, namely the high number of persons who are imprisoned and the resultant overcrowding. 42. According to the information provided by the authorities, there are approximately 3,500 prisoners in the region ’ s penitentiary establishments i.e. an incarceration rate of some 450 persons per 100,000 of the population. The number of inmates in the three establishments visited was within or, in the case of Prison No 1, just slightly over their official capacities. Nevertheless, the delegation found that in fact the establishments were severely overcrowded. The situation was at its most serious in Prison No 1. The cells for pre-trial prisoners offered rarely more – and sometimes less – than 1 m² of living space per prisoner, and the number of prisoners often exceeded the number of beds. These deplorable conditions were frequently made worse by poor ventilation, insufficient access to natural light and inadequate sanitary facilities. Similar, albeit slightly better, conditions were also observed in the Sizo section of Colony No. 3 and in certain parts of Colony No. 2 (for example, Block 10). 43. An incarceration rate of the magnitude which presently prevails in the Transnistrian region cannot be convincingly explained away by a high crime rate; the general outlook of members of the law enforcement agencies, prosecutors and judges must, in part, be responsible for the situation. At the same time, it is unrealistic from an economic standpoint to offer decent conditions of detention to such vast numbers of prisoners; to attempt to solve the problem by building more penitentiary establishments would be a ruinous exercise. The CPT has already stressed the need to review current law and practice relating to custody pending trial ... More generally, the Committee recommends that an overall strategy be developed for combating prison overcrowding and reducing the size of the prison population. In this context, the authorities will find useful guidance in the principles and measures set out in Recommendation No R (99) 22 of the Committee of Ministers of the Council of Europe, concerning prison overcrowding and prison population inflation ... ... 48. The CPT recognises that in periods of economic difficulties, sacrifices may have to be made, including in penitentiary establishments. However, regardless of the difficulties faced at any given time, the act of depriving a person of his liberty always entails a duty to ensure that that person has access to certain basic necessities. Those basic necessities include appropriate medication. Compliance with this duty by public authorities is all the more imperative when it is a question of medication required to treat a life-threatening disease such as tuberculosis. At the end of the visit, the CPT ’ s delegation requested the authorities to take steps without delay to ensure that all penitentiary establishments are supplied on a regular basis with medicines of various types and, in particular, with a suitable range of anti ‑ tuberculosis drugs. The CPT wishes to be informed of the action taken in response to that request. ... 49. Official health-care staffing levels in the penitentiary establishments visited were rather low and, at the time of the visit, this situation was exacerbated by the fact that certain posts were vacant or staff members on long-term leave had not been replaced. This was particularly the case at Prison No 1 and Colony No 2. The CPT recommends that the authorities strive to fill as soon as possible all vacant posts in the health-care services of those two establishments and to replace staff members who are on leave. The health-care services of all three penitentiary establishments visited had very few medicines at their disposal, and their facilities were modestly equipped. The question of the supply of medicines has already been addressed (cf. paragraph 48). As regards the level of equipment, the CPT appreciates that the existing situation is a reflection of the difficulties facing the region; it would be unrealistic to expect significant improvements at the present time. However, it should be possible to maintain all existing equipment in working order. In this context, the delegation noted that all the radiography machines in the establishments visited were out of use. The CPT recommends that this deficiency be remedied. On a more positive note, the CPT was very interested to learn of the authorities ’ plans for a new prison hospital, with a region-wide vocation, at Malaieşti. This is a most welcome development. The Committee would like to receive further details concerning the implementation of those plans. ... 51. The CPT has already highlighted the poor material conditions of detention which prevailed in the establishments visited and has made recommendations designed to address the fundamental problem of overcrowding (cf. paragraphs 42 and 43). In addition to overcrowding, the CPT is very concerned by the practice of covering cell windows. This practice appeared to be systematic vis-à-vis remand prisoners, and was also observed in cells accommodating certain categories of sentenced prisoners. The Committee recognises that specific security measures designed to prevent the risk of collusion and/or criminal activities may well be required in respect of certain prisoners. However, the imposition of such security measures should be the exception rather than the rule. Further, even when specific security measures are required, such measures should never involve depriving the prisoners concerned of natural light and fresh air. The latter are basic elements of life which every prisoner is entitled to enjoy; moreover, the absence of these elements generates conditions favourable to the spread of diseases and in particular tuberculosis. It is also inadmissible for cells to accommodate more prisoners than the number of beds available, thereby compelling prisoners to sleep in shifts. Consequently, the CPT recommends that the authorities set the following as short-term objectives: i) all prisoner accommodation to have access to natural light and adequate ventilation; ii) every prisoner, whether sentenced or on remand, to have his/her own bed. Further, as measures to tackle overcrowding begin to take effect, the existing standards concerning living space per prisoner should be revised upwards. The CPT recommends that the authorities set, as a medium-term objective, meeting the standard of 4m² of floor space per prisoner. 52. As the delegation pointed out at the end of its visit, material conditions of detention were particularly bad at Prison No 1 in Glinoe. The CPT appreciates that under the present circumstances, the authorities have no choice but to keep this establishment in service. However, the premises of Prison No 1 belong to a previous age; they should cease to be used for penitentiary purposes at the earliest opportunity. ” C. Organization for Security and Co-operation in Europe (OSCE) 65. In its Annual Report for 2005, the OSCE referred to events in Transdniestria as follows. “The Mission concentrated its efforts on restarting the political settlement negotiations, stalled since summer 2004. The mediators from the Russian Federation, Ukraine, and the OSCE held consultations with representatives from Chisinau and Tiraspol in January, May and September. At the May meeting, Ukraine introduced President Victor Yushchenko ’ s settlement plan, Toward a Settlement through Democratization. This initiative envisages democratization of the Transdniestrian region through internationally conducted elections to the regional legislative body, along with steps to promote demilitarization, transparency and increased confidence. In July, the Moldovan Parliament, citing the Ukrainian Plan, adopted a law On the Basic Principles of a Special Legal Status of Transdniestria. During consultations in September in Odessa, Chisinau and Tiraspol agreed to invite the EU and US to participate as observers in the negotiations. Formal negotiations resumed in an enlarged format in October after a 15-month break and continued in December following the OSCE Ministerial Council in Ljubljana. On 15 December, the Presidents of Ukraine and the Russian Federation, Victor Yushchenko and Vladimir Putin, issued a Joint Statement welcoming the resumption of negotiations on the settlement of the Transdniestrian conflict. In September, Presidents Voronin and Yushchenko jointly requested the OSCE Chairman-in-Office to consider sending an International Assessment Mission (IAM) to analyse democratic conditions in Transdniestria and necessary steps for conducting democratic elections in the region. In parallel, the OSCE Mission conducted technical consultations and analyses on basic requirements for democratic elections in the Transdniestrian region, as proposed in the Yushchenko Plan. At the October negotiating round, the OSCE Chairmanship was asked to continue consultations on the possibility of organizing an IAM to the Transdniestrian region. Together with military experts from the Russian Federation and Ukraine, the OSCE Mission completed development of a package of proposed confidence- and security ‑ building measures, which were presented by the three mediators in July. The Mission subsequently began consultations on the package with representatives of Chisinau and Tiraspol. The October negotiating round welcomed possible progress on enhancing transparency through a mutual exchange of military data, as envisaged in elements of this package.” On the question of Russian military withdrawal, the OSCE observed: “There were no withdrawals of Russian arms and equipment from the Transdniestrian region during 2005. Roughly 20,000 metric tons of ammunition remain to be removed. The commander of the Operative Group of Russian Forces reported in May that surplus stocks of 40,000 small arms and light weapons stored by Russian forces in the Transdniestrian region have been destroyed. The OSCE has not been allowed to verify these claims.” In its Annual Report for 2006 the OSCE reported as follows: “... The 17 September ‘ independence ’ referendum and the 10 December ‘ presidential ’ elections in Transnistria – neither one recognized nor monitored by the OSCE – shaped the political environment of this work ... To spur on the settlement talks, the Mission drafted in early 2006 documents that suggested: a possible delimitation of competencies between central and regional authorities; a mechanism for monitoring factories in the Transnistrian military ‑ industrial complex; a plan for the exchange of military data; and an assessment mission to evaluate conditions and make recommendations for democratic elections in Transnistria. The Transnistrian side, however, refused to continue negotiations after the March introduction of new customs rules for Transnistrian exports, and thus no progress could be made including on these projects. Attempts to unblock this stalemate through consultations among the mediators (OSCE, Russian Federation and Ukraine) and the observers (European Union and the United States of America) in April, May and November and consultations of the mediators and observers with each of the sides separately in October were to no avail. ... On 13 November, a group of 30 OSCE Heads of Delegations, along with OSCE Mission members, gained access for the first time since March 2004 to the Russian Federation ammunition depot in Colbasna, near the Moldovan-Ukrainian border in northern Transnistria. There were no withdrawals, however, of Russian ammunition or equipment from Transnistria during 2006, and more than 21,000 tons of ammunition remain stored in the region. ...” The Annual Report for 2007 stated: “The mediators in the Transnistrian settlement process, the Russian Federation, Ukraine and the OSCE, and the observers, the European Union and the United States, met four times. The mediators and observers met informally with the Moldovan and Transnistrian sides once, in October. All meetings concentrated on finding ways to restart formal settlement negotiations, which have nonetheless failed to resume. ... The Mission witnessed that there were no withdrawals of Russian ammunition or equipment during 2007. The Voluntary Fund retains sufficient resources to complete the withdrawal tasks.” In its Annual Report for 2008 the OSCE observed: “Moldovan President Vladimir Voronin and Transnistrian leader Igor Smirnov met in April for the first time in seven years and followed up with another meeting on 24 December. Mediators from the OSCE, Russian Federation and Ukraine and observers from the European Union and the United States met five times. Informal meetings of the sides with mediators and observers took place five times. These and additional shuttle diplomacy efforts by the Mission notwithstanding, formal negotiations in the ‘ 5+2 ’ format were not resumed. ... There were no withdrawals of Russian ammunition or equipment from the Transnistrian region during 2008. The Voluntary Fund retains sufficient resources to complete withdrawal tasks.” In its Annual Report for 2009 the OSCE observed: “ Withdrawal of Russian ammunition and equipment. The Mission maintained its readiness to assist the Russian Federation to fulfil its commitment to withdraw ammunition and equipment from Transdniestria. No withdrawals took place in 2009. The Voluntary Fund retains sufficient resources to complete withdrawal tasks. ” Subsequent OSCE reports describe the confidence-building measures taken and note the various meetings between those involved in the negotiations concerning the settlement of the Transdniestrian conflict. They do not contain any reference to the withdrawal of troops from the “MRT”. D. Other materials from international organisations 66. In Catan and Others (cited above, §§ 64-73 ) the Court summarised the content of various reports by intergovernmental and non-governmental organisations concerning the situation in the Transdniestrian region of Moldova and the Russian military personnel and equipment stationed there during 2003 and 2009. It also summarised the relevant provisions of international law (ibid., §§ 74-76). 67. In paragraph 18 of Resolution 1896 (2012) on the honouring of obligations and commitments by the Russian Federation, the Parliamentary Assembly of the Council of Europe noted as follows: “The opening of polling stations in Abkhazia (Georgia), South Ossetia (Georgia) and Transnistria (Republic of Moldova) without the explicit consent of the de jure authorities in Tbilisi and Chişinău, as well as the prior ‘ passportisation ’ of populations in these territories, violated the territorial integrity of these States, as recognised by the international community, including the Parliamentary Assembly.” 68. On 10 May 2010 the International Committee of the Red Cross (ICRC) replied to a letter from the Permanent Mission of the Republic of Moldova concerning the applicant ’ s case, stating that an ICRC delegate and a doctor had seen the applicant on 29 April 2010. During their visit, they had met with the applicant in private and had been told that he had regular contact with his family and could receive parcels from them. III. RELEVANT DOMESTIC LAW AND PRACTICE OF THE REPUBLIC OF MOLDOVA 69. The relevant provisions of the Constitution read as follows. Article 114 Administration of justice “Justice shall be administered in the name of the law only by the courts of law.” Article 115 Courts of law “1. Justice shall be administered by the Supreme Court of Justice, the courts of appeal and the courts of law. 2. For certain categories of cases special law courts may operate under the law. 3. The setting up of extraordinary courts shall be forbidden. 4. The structure of the law courts, their sphere of competence and legal procedures shall be laid down by organic law.” 70. Section 1 of the Law on the status of judges (no. 544, 20 July 1995, as in force at the time of the events) reads as follows. Section 1 Judges – bearers of judicial authority “(1) Judicial authority shall be exercised only by the courts, in the person of the judge, who shall be the sole bearer of such authority. (2) Judges shall be the persons constitutionally vested with judicial duties, which they shall exercise in accordance with the law. (3) Judges of the courts shall be independent, impartial and immovable, and shall obey only the law. ...” 71. Under Annexes 2 and 3 to the Law on judicial organisation (no. 514, 6 July 1995, as in force at the time of the events), six first-instance courts and one second-instance court (the Bender Court of Appeal), empowered to examine cases originating from the various settlements on the territory controlled by the “MRT” were created. On 16 July 2014 Parliament decided to close down the Bender Court of Appeal because it was examining a considerably smaller number of cases than the other Courts of Appeal. The judges working there were transferred to other Courts of Appeal, while the cases on its docket were transferred to the Chișinău Court of Appeal. 72. In accordance with section 1 of the Law on compensation for damage caused by illegal acts of the criminal investigation bodies, the prosecution authorities or the courts (no. 1545, 25 February 1998), compensation may be sought in court where damage is caused by the unlawful actions of the criminal investigation bodies, the prosecution authorities or the courts within the framework of criminal or administrative-contravention proceedings. 73. The Moldovan Government submitted examples of past rulings by the Moldovan Supreme Court of Justice similar to the decision of 22 January 2013 (see paragraph 26 above), in which that court quashed convictions imposed by various “MRT courts” on the grounds that they had been handed down by unlawfully created courts. They also referred to the cases of Topa v. Moldova ((dec.), no. 25451/08, 14 September 2010), Mătăsaru and Savițchi v. Moldova (no. 38281/08, §§ 60-76, 2 November 2010) and Bisir and Tulus v. Moldova (no. 42973/05, §§ 21 et seq., 17 May 2011) in support of their assertion that compensation for wrongful prosecution or conviction could be claimed under Law no. 1545 (1998). IV. OTHER RELEVANT MATERIALS 74. On 19 May 2009 the press office of the “MRT prosecutor” published a report according to which a visit to the detention facilities in the Slobozia region of the “MRT” had revealed multiple regulatory breaches regarding hygiene, the physical conditions of detention and medical assistance. 75. The applicant submitted copies of decisions of the “Tiraspol City Court” of 14 April 2009, 11 June 2010, 1 April 2011, 25 February 2012 and 18 November 2013 in cases not related to the present one, ordering the detention pending trial of persons accused of various crimes. None of these decisions specified the period of detention of the persons concerned. 76. He also submitted the text of several provisions of the “MRT Code of Criminal Procedure”. According to Article 79, detention pending trial cannot exceed two months. If the investigation cannot be completed in that period, it may be extended by the court. Under Article 78, paragraph 15, a person accused of serious and extremely serious offences may be detained pending trial on the basis of the severity of the crime alone. Under Articles 212-1 and 212-2, the duration of detention of a person whose case is being examined by the trial court cannot exceed six months initially, but may be extended by the court. According to the applicant, the practice of the “MRT courts” is that, once a case has been submitted to the trial court, no further extension of the period of detention pending trial is required during the first six months of such detention. 77. The applicant also submitted various news reports from the media published on the territory controlled by the “MRT” regarding the judiciary system in the region. Some of these reports refer to politically motivated persecution using the “courts” as a means of exerting pressure, or allege that the “MRT Supreme Court” is a “puppet court” of the “MRT President”. Others mention the appointment of new judges to the “MRT courts”, referring to the freshly appointed “judges” as having barely any experience, and citing examples such as that of a person who became a judge of the “Tiraspol City Court” at the age of 25, three years after graduating from the local university. THE LAW 78. The applicant complained, inter alia, that he had been arrested and detained unlawfully by the “MRT” authorities. He further alleged that he had not been given the requisite medical assistance for his condition, had been held in inhuman conditions of detention and had been prevented from seeing his parents and his pastor. He submitted that both Moldova and Russia had jurisdiction and were responsible for the alleged violations. I. GENERAL ADMISSIBILITY ISSUES 79. The Russian Government argued that the applicant did not come within their jurisdiction and that, consequently, the application should be declared inadmissible ratione personae and ratione loci in respect of the Russian Federation. For their part, the Moldovan Government did not contest that the Republic of Moldova retained jurisdiction over the territory controlled by the “MRT”, but submitted that the applicant had failed to exhaust the remedies available to him in Moldova. The Court finds it appropriate, before examining the admissibility and merits of each complaint lodged by the applicant, to examine these two objections potentially affecting all of the complaints. A. Jurisdiction 80. The Court must first determine whether, for the purposes of the matters complained of, the applicant falls within the jurisdiction of either or both of the respondent States, within the meaning of Article 1 of the Convention. 1. The parties ’ submissions (a) The applicant (i) Jurisdiction of the Republic of Moldova 81. The applicant submitted that, although Moldova lacked effective control over Transdniestria, the region clearly remained part of Moldovan national territory and the protection of human rights there remained Moldova ’ s responsibility. 82. He argued that, apart from the general measures taken by Moldova aimed at resolving the conflict and ensuring observance of human rights in the Transdniestrian region, the authorities had failed to take measures to secure his individual Convention rights. (ii) Jurisdiction of the Russian Federation 83. The applicant submitted that the Court ’ s findings of fact in Ilaşcu and Others ( v. Moldova and Russia [GC], no. 48787/99, §§ 379-91, ECHR 2004-VII), which had led it to conclude that Russia exercised a decisive influence over the “MRT” (§ 392), also applied to the present case. The “MRT” continued to survive only by virtue of Russia ’ s military, economic, financial, informational and political support. Russia had “effective control or at the very least a decisive influence” over the “MRT”. 84. Furthermore, the actions of the Russian authorities in the present case sent out a different message from the country ’ s official position: it was unclear why the Russian embassy would send the complaint made by the applicant ’ s mother to the “MRT prosecutor ’ s office” (see paragraph 49 above) if Russia did not recognise the “MRT” as a lawfully created entity. (b) The Moldovan Government (i) Jurisdiction of the Republic of Moldova 85. The Moldovan Government submitted that, according to the rationale of Ilaşcu and Others (cited above), the applicant fell within Moldova ’ s jurisdiction because, by claiming the territory and by trying to secure applicants ’ rights, the Moldovan authorities assumed positive obligations in respect of applicants. The Moldovan Government maintained that they still had no jurisdiction over the Transdniestrian territory in the sense of authority and control; nevertheless, they continued to fulfil the positive obligations established by Ilaşcu and Others and were intensifying their diplomatic efforts in that regard. 86. For instance, the Moldovan authorities kept all the parties in the ongoing negotiations concerning the Transdniestrian region informed of all relevant developments; they also continued to request Russia ’ s withdrawal of its military equipment and personnel from the region and to ensure observance of human rights there. At Moldova ’ s insistence the European Union (EU) had been included in the negotiation format in 2005, and later that year the EU Border Assistance Mission to Moldova and Ukraine (EUBAM) had started its work of offering technical advice to Moldova and Ukraine in securing better control of their borders with the Transdniestrian region. Moldovan officials continued to ask Russia to honour its obligations in various international fora such as the United Nations, the Council of Europe, the European Union and the Organization for Security and Co-operation in Europe (OSCE). 87. Moreover, still according to the Moldovan Government, they had – in response to the high number of complaints of alleged breaches of human rights in the “MRT” – set up a number of legal mechanisms aimed at guaranteeing constitutional rights, including the right to property, medical treatment, justice, education, and so forth. Hence, the Moldovan authorities had opened various amenities in settlements near the region, such as passport and other documentation offices, prosecutors ’ offices and courts. 88. With regard to specific cases of alleged violations of human rights in the region such as that of the applicant, the Moldovan authorities were taking the only steps available to them, that is to say, asking for assistance from Russia and other countries and international organisations in influencing the “MRT” authorities to ensure the observance of such rights. (ii) Jurisdiction of the Russian Federation 89. The Moldovan Government submitted a number of media reports from the “MRT” and Russia, which in their view confirmed that in 2010 the Russian Federation had continued to support the separatist regime. They referred to bans on selling Moldovan wine in Russia in 2006 and 2010; the continued payment of up to 50% of pensions and salaries in the public sector with money received from Russia; declarations by various Russian and “MRT” officials concerning close relations with and support from Russia; the continued delivery of natural gas from Russia to the “MRT” for only a nominal payment; the development of a common education system and textbooks and the recognition of “MRT” diplomas in Russia; allegations in the “MRT” media that by choosing which political parties received economic aid, Russia was able to influence politics there; messages from the Russian Foreign Minister, Sergei Lavrov, and the Russian ambassador to Moldova, Valeri Kuzmin, congratulating the separatist leaders on the twentieth anniversary of the self-proclamation of their independence; and the attendance of various Russian officials at the anniversary celebrations in Tiraspol. 90. According to the Moldovan Government, the “MRT” continued to have Russia ’ s political, economic and financial support. The presence of Russian troops and the massive assistance given to the “MRT” complicated the negotiations aimed at settling the conflict. (c) The Russian Government (i) Jurisdiction of the Republic of Moldova 91. The Russian Government did not comment on the jurisdictional position of the Republic of Moldova in the present case. (ii) Jurisdiction of the Russian Federation 92. The Russian Government took issue with the Court ’ s approach to jurisdiction in Ilaşcu and Others (cited above). They contended that, in keeping with the Court ’ s reasoning in Loizidou v. Turkey ((preliminary objections), 23 March 1995, § 62, Series A no. 310) and Cyprus v. Turkey ([GC], no. 25781/94, § 76, ECHR 2001-IV), a State could be considered to be exercising extraterritorial jurisdiction if it (a) continued to exercise control through subordinate local authorities and (b) kept control over the whole territory owing to the presence of a large number of troops and “practically exercised a global control over” the relevant territory. Neither of these two conditions was met in the present case. The situation was similar to that in Banković and Others v. Belgium and Others ((dec.) [GC], no. 52207/99, ECHR 2001 ‑ XII), in which the Court had recognised that jurisdiction could only be extended extraterritorially in exceptional cases. 93. Moreover, the concept of “effective control” as applied by the Court when establishing whether a State exercised extraterritorial jurisdiction was at variance with its meaning in public international law. The notion of “effective and overall control” had first appeared in the case-law of the International Court of Justice (ICJ), but had a different meaning there. Comparing the present situation to that in Military and Paramilitary Activities in and against Nicaragua ( (Nicaragua v. United States of America), Judgment of 27 June 1986, ICJ Reports 1986, §§ 109-15), the Russian Government argued that they had much less influence over the “MRT” authorities than the United States of America had had over the rebels in Nicaragua, notably in terms of the strength of Russia ’ s military presence in the “MRT”. In fact, Russia was one of the mediators of the conflict between Moldova and the self ‑ proclaimed “MRT”. The ICJ had confirmed its position in Application of the Convention on the Prevention and Punishment of the Crime of Genocide ( (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment of 26 February 2007, ICJ Reports 2007, p. 43 – “the Bosnian Genocide case” ). The notion of “overall control” had been further developed by the International Criminal Tribunal for the former Yugoslavia. The Court ’ s interpretation of this notion differed from the interpretations of these international tribunals. 94. Moreover, Russia had never engaged in the occupation of any part of Moldovan territory. It could not be said that Russia exercised jurisdiction in the present case, where the territory was controlled by a de facto government which was not an organ or instrument of Russia and which did not depend on Russia in any way. On the contrary, Russia considered the “MRT” to be an integral part of the Republic of Moldova. Russia ’ s military presence was restricted to a limited number of peacekeepers; therefore, there were no grounds for concluding that it exercised control through the strength of its military presence. The Russian Government referred in that connection to Al-Skeini and Others v. the United Kingdom ([GC], no. 55721/07, § 139, ECHR 2011) and Jaloud v. the Netherlands ([GC], no. 47708/08, § 139, ECHR 2014). They referred to a newspaper article submitted by the applicant, according to which there had been fewer than 400 Russian peacekeepers in the region in October 2006, “on a par with the number of military servicemen from the ‘ MRT ’ and Moldova”. 95. In reply to a question by the Court as to whether there had been any relevant developments since the adoption of its judgment in Ilaşcu and Others (cited above), the Russian Government submitted that Moldova had in the meantime been accepted into the World Trade Organization (WTO) as an entire trade zone which included the Transdniestrian region. This, in their opinion, showed that there was scope for negotiation and cooperation between Moldova and the “MRT”. 2. The Court ’ s assessment 96. Article 1 of the Convention reads as follows: “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention.” In the present case, issues arise as to the meaning of “jurisdiction” with regard to both territorial jurisdiction (in the case of Moldova) and the exercise of extraterritorial jurisdiction (in the case of the Russian Federation). (a) General principles 97. In Ilașcu and Others (cited above), the Court established the following principles regarding the presumption of territorial jurisdiction. “311. It follows from Article 1 that member States must answer for any infringement of the rights and freedoms protected by the Convention committed against individuals placed under their ‘ jurisdiction ’. The exercise of jurisdiction is a necessary condition for a Contracting State to be able to be held responsible for acts or omissions imputable to it which give rise to an allegation of the infringement of rights and freedoms set forth in the Convention. 312. The Court refers to its case-law to the effect that the concept of ‘ jurisdiction ’ for the purposes of Article 1 of the Convention must be considered to reflect the term ’ s meaning in public international law (see Gentilhomme and Others v. France, nos. 48205/99, 48207/99 and 48209/99, § 20, judgment of 14 May 2002; Banković and Others v. Belgium and Others (dec.) [GC], no. 52207/99, §§ 59-61, ECHR 2001 ‑ XII; and Assanidze v. Georgia [GC], no. 71503/01, § 137, ECHR 2004-II). From the standpoint of public international law, the words ‘ within their jurisdiction ’ in Article 1 of the Convention must be understood to mean that a State ’ s jurisdictional competence is primarily territorial (see Banković and Others, cited above, § 59), but also that jurisdiction is presumed to be exercised normally throughout the State ’ s territory. This presumption may be limited in exceptional circumstances, particularly where a State is prevented from exercising its authority in part of its territory. That may be as a result of military occupation by the armed forces of another State which effectively controls the territory concerned (see Loizidou v. Turkey (preliminary objections), judgment of 23 March 1995, Series A no. 310, and Cyprus v. Turkey, §§ 76-80, cited above, and also cited in the above-mentioned Banković and Others decision, §§ 70 ‑ 71), acts of war or rebellion, or the acts of a foreign State supporting the installation of a separatist State within the territory of the State concerned. 313. In order to be able to conclude that such an exceptional situation exists, the Court must examine on the one hand all the objective facts capable of limiting the effective exercise of a State ’ s authority over its territory, and on the other the State ’ s own conduct. The undertakings given by a Contracting State under Article 1 of the Convention include, in addition to the duty to refrain from interfering with the enjoyment of the rights and freedoms guaranteed, positive obligations to take appropriate steps to ensure respect for those rights and freedoms within its territory (see, among other authorities, Z and Others v. the United Kingdom [GC], no. 29392/95, § 73, ECHR 2001-V). Those obligations remain even where the exercise of the State ’ s authority is limited in part of its territory, so that it has a duty to take all the appropriate measures which it is still within its power to take. ... 333. The Court considers that where a Contracting State is prevented from exercising its authority over the whole of its territory by a constraining de facto situation, such as obtains when a separatist regime is set up, whether or not this is accompanied by military occupation by another State, it does not thereby cease to have jurisdiction within the meaning of Article 1 of the Convention over that part of its territory temporarily subject to a local authority sustained by rebel forces or by another State. Nevertheless, such a factual situation reduces the scope of that jurisdiction in that the undertaking given by the State under Article 1 must be considered by the Court only in the light of the Contracting State ’ s positive obligations towards persons within its territory. The State in question must endeavour, with all the legal and diplomatic means available to it vis-à-vis foreign States and international organisations, to continue to guarantee the enjoyment of the rights and freedoms defined in the Convention. 334. Although it is not for the Court to indicate which measures the authorities should take in order to comply with their obligations most effectively, it must verify that the measures actually taken were appropriate and sufficient in the present case. When faced with a partial or total failure to act, the Court ’ s task is to determine to what extent a minimum effort was nevertheless possible and whether it should have been made. Determining that question is especially necessary in cases concerning an alleged infringement of absolute rights such as those guaranteed by Articles 2 and 3 of the Convention.” These principles were recently reiterated in Sargsyan v. Azerbaijan ([GC], no. 40167/06, § 128, ECHR 2015 ). 98. As regards the general principles concerning the exercise of extraterritorial jurisdiction, the Court, in so far as relevant, summarised them as follows in Catan and Others v. the Republic of Moldova and Russia [GC], nos. 43370/04 and 2 others, ECHR 2012. “103. The Court has established a number of clear principles in its case-law under Article 1. Thus, as provided by this Article, the engagement undertaken by a Contracting State is confined to “securing” ( ‘ reconnaître ’ in the French text) the listed rights and freedoms to persons within its own “jurisdiction” (see Soering v. the United Kingdom, 7 July 1989, § 86, Series A no. 161; Banković and Others, cited above, § 66). “Jurisdiction” under Article 1 is a threshold criterion. The exercise of jurisdiction is a necessary condition for a Contracting State to be able to be held responsible for acts or omissions imputable to it which give rise to an allegation of the infringement of rights and freedoms set forth in the Convention (see Ilaşcu and Others, cited above, § 311, and Al-Skeini and Others, cited above, § 130 ). 104. A State ’ s jurisdictional competence under Article 1 is primarily territorial (see Soering, cited above, § 86; Banković and Others, cited above, §§ 61-67; Ilaşcu and Others, cited above, § 312; and Al-Skeini and Others, cited above, § 131). Jurisdiction is presumed to be exercised normally throughout the State ’ s territory (see Ilaşcu and Others, cited above, § 312, and Assanidze v. Georgia [GC], no. 71503/01, § 139, ECHR 2004-II). Conversely, acts of the Contracting States performed, or producing effects, outside their territories can constitute an exercise of jurisdiction within the meaning of Article 1 only in exceptional cases (see Banković and Others, cited above, § 67, and Al-Skeini and Others, cited above, § 131). 105. To date, the Court has recognised a number of exceptional circumstances capable of giving rise to the exercise of jurisdiction by a Contracting State outside its own territorial boundaries. In each case, the question whether exceptional circumstances exist which require and justify a finding by the Court that the State was exercising jurisdiction extraterritorially must be determined with reference to the particular facts (see Al ‑ Skeini and Others, cited above, § 132). 106. One exception to the principle that jurisdiction under Article 1 is limited to a State ’ s own territory occurs when, as a consequence of lawful or unlawful military action, a Contracting State exercises effective control of an area outside that national territory. The obligation to secure, in such an area, the rights and freedoms set out in the Convention, derives from the fact of such control, whether it be exercised directly, through the Contracting State ’ s own armed forces, or through a subordinate local administration ( see Loizidou v. Turkey (preliminary objections), 23 March 1995, § 62, Series A no. 310; Cyprus v. Turkey [GC], no. 25781/94, § 76, ECHR 2001-IV; Banković and Others, cited above, § 70; Ilaşcu and Others, cited above, §§ 314-16; Loizidou v. Turkey (merits), 18 December 1996, § 52, Reports of Judgments and Decisions 1996-VI; and Al-Skeini and Others, cited above, § 138). Where the fact of such domination over the territory is established, it is not necessary to determine whether the Contracting State exercises detailed control over the policies and actions of the subordinate local administration. The fact that the local administration survives as a result of the Contracting State ’ s military and other support entails that State ’ s responsibility for its policies and actions. The controlling State has the responsibility under Article 1 to secure, within the area under its control, the entire range of substantive rights set out in the Convention and those additional Protocols which it has ratified. It will be liable for any violations of those rights (see Cyprus v. Turkey, cited above, §§ 76-77, and Al-Skeini and Others, cited above, § 138). 107. It is a question of fact whether a Contracting State exercises effective control over an area outside its own territory. In determining whether effective control exists, the Court will primarily have reference to the strength of the State ’ s military presence in the area (see Loizidou (merits), cited above, §§ 16 and 56, and Ilaşcu and Others, cited above, § 387). Other indicators may also be relevant, such as the extent to which its military, economic and political support for the local subordinate administration provides it with influence and control over the region (see Ilaşcu and Others, cited above, §§ 388-94, and Al-Skeini and Others, cited above, § 139). ... 115. The Russian Government contend that the Court could only find that Russia was in effective control if it found that the ‘ government of the MRT ’ could be regarded as an organ of the Russian State in accordance with the approach of the International Court of Justice in the Case Concerning the Application of the Convention on the Prevention and Punishment of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro ... The Court notes that in the judgment relied upon by the Russian Government, the International Court of Justice was concerned with determining when the conduct of a person or group of persons could be attributed to a State, so that the State could be held responsible under international law in respect of that conduct. In the instant case, however, the Court is concerned with a different question, namely whether facts complained of by an applicant fell within the jurisdiction of a respondent State within the meaning of Article 1 of the Convention. As the summary of the Court ’ s case-law set out above demonstrates, the test for establishing the existence of ‘ jurisdiction ’ under Article 1 of the Convention has never been equated with the test for establishing a State ’ s responsibility for an internationally wrongful act under international law. ” These principles were recently reiterated in Chiragov and Others v. Armenia ([GC], no. 13216/05, § 168, ECHR 2015). (b) Application of these principles to the facts of the case (i) Jurisdiction of the Republic of Moldova 99. The Court must first determine whether the case falls within the jurisdiction of the Republic of Moldova. In this connection it notes that the applicant was at all times detained on Moldovan territory. It is true, as all the parties accept, that Moldova has no authority over the part of its territory to the east of the River Dniester, which is controlled by the “MRT”. Nevertheless, in Ilaşcu and Others (cited above), the Court held that individuals detained in Transdniestria fell within Moldova ’ s jurisdiction because it was the territorial State, even though it did not have effective control over the Transdniestrian region. Moldova ’ s obligation under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the [Convention] rights and freedoms”, was, however, limited in the circumstances to a positive obligation to take the diplomatic, economic, judicial or other measures that were both in its power to take and in accordance with international law (ibid., § 331). The Court reached a similar conclusion in Ivanţoc and Others v. Moldova and Russia (no. 23687/05, §§ 105-11, 15 November 2011) and Catan and Others (cited above, §§ 109 ‑ 10). 100. The Court sees no reason to distinguish the present case from those cited above. Although Moldova has no effective control over the acts of the “MRT” in Transdniestria, the fact that the region is recognised under public international law as part of Moldova ’ s territory gives rise to an obligation for that State, under Article 1 of the Convention, to use all the legal and diplomatic means available to it to continue to guarantee the enjoyment of the rights and freedoms defined in the Convention to those living there (see Ilaşcu and Others, cited above, § 333, and Catan and Others, cited above, § 109). The Court will consider below (see paragraphs 151 - 55 ) whether Moldova has satisfied this positive obligation. (ii) Jurisdiction of the Russian Federation 101. It follows from the Court ’ s case-law set out above (see paragraphs 97 - 98 ), that a State can exercise jurisdiction extraterritorially when, as a consequence of lawful or unlawful military action, it exercises effective control of an area outside its national territory (see paragraph 98 above and Loizidou (preliminary objections), cited above, § 62; Loizidou v. Turkey (merits), 18 December 1996, § 52, Reports of Judgments and Decisions 1996 - VI; Cyprus v. Turkey, cited above, § 76; and Ilaşcu and Others, cited above, §§ 314-16; compare and contrast Banković and Others, cited above, § 70). Moreover, the Court reiterates that a State can, in certain exceptional circumstances, exercise jurisdiction extraterritorially through the assertion of authority and control by that State ’ s agents over an individual or individuals (see Al ‑ Skeini and Others, cited above, §§ 136 and 149, and Catan and Others, cited above, § 114). In the present case, the Court accepts that there is no evidence of any direct involvement of Russian agents in the applicant ’ s detention and treatment. However, it is the applicant ’ s submission that Russia has “effective control or at the very least a decisive influence” over the “MRT” and the Court must establish whether or not this was the case at the time of the applicant ’ s detention, which lasted from November 2008 until July 2010. 102. The Russian Government submitted an argument based on the Bosnian Genocide case, as they had done in Catan and Others (cited above, § 96), and Nicaragua v. United States of America (see paragraph 93 above), which was part of the case-law taken into account by the Court in Catan and Others (cited above, § 76). In these cases the ICJ was concerned with determining when the conduct of a group of persons could be attributed to a State, with the result that the State could be held responsible under international law for that conduct. In the instant case, however, the Court reiterates that it is concerned with a different issue, namely whether the facts complained of by the applicant fall within the jurisdiction of a respondent State within the meaning of Article 1 of the Convention. As the Court has already found, the test for establishing the existence of “jurisdiction” under Article 1 of the Convention has never been equated with the test for establishing a State ’ s responsibility for an internationally wrongful act under international law (see paragraph 98 above, and Catan and Others, cited above, § 115). 103. Although in Catan and Others the Court focused on determining whether Russia had jurisdiction over the applicants between 2002 and 2004, in establishing the facts of that case the Court referred to a number of developments that occurred subsequently. It thus took note, inter alia, of resolutions adopted by the Duma in February and March 2005 calling on the Russian government to ban imports of alcohol and tobacco from Moldova (see Catan and Others, cited above, § 29); the Russian government ’ s ban on meat products, fruit and vegetables from Moldova in 2005 (§ 30); the absence of any verified withdrawals of Russian military equipment from the “MRT” since 2004 (§ 36); the continued presence (by the date of the judgment in Catan and Others, October 2012) of approximately a thousand Russian military servicemen in the “MRT” to guard its arms store (§ 37); the economic support being provided through close cooperation with Russian military production companies or through the purchase by Russian companies of “MRT” companies, as well as the purchases of supplies in Transdniestria (§ 39); the close economic ties between the “MRT” and Russia, including the token payment to Gazprom of only approximately 5% of the cost of the natural gas consumed (data for 2011, § 40); the economic aid provided to the “MRT” between 2007 and 2010 (§ 41); and the number of “MRT” residents granted Russian citizenship (§ 42). 104. In addition, various reports from intergovernmental organisations cited in Catan and Others (§§ 64-70) refer to the period from 2005 to 2008, and reports by non-governmental organisations (ibid., §§ 71-73) cover the period from 2004 to 2009. 105. The Court further notes that some of its conclusions in Catan and Others, while referring to the period between August 2002 and July 2004, were based on factual findings in respect of which the parties in the present case have not submitted any new information. These concern the quantity of weapons and munitions stored at Colbașna (§ 117); the dissuasive effect of the relatively small Russian military presence in the Transdniestrian region and its historical background, namely the intervention of Russian troops in the 1992 conflict between the Moldovan authorities and the “MRT” forces, the transfer of weapons to the separatists and the arrival in the region of Russian nationals to fight alongside the separatists (§ 118); and the combination of the continued Russian military presence and the storage of weapons in secret and in breach of international commitments, sending “a strong signal of continued support for the ‘ MRT ’ regime” (§ 119). 106. In Ivanţoc and Others (cited above, §§ 116-20) the Court analysed whether Russia ’ s policy of supporting the “MRT” had changed between 2004 and the date of the applicants ’ release in 2007. It concluded as follows. “118. ... the Russian Federation continued to enjoy a close relationship with the ‘ MRT ’, amounting to providing political, financial and economic support to the separatist regime. In addition, the Court notes that the Russian army (troops, equipment and ammunition) was at the date of the applicants ’ release still stationed on Moldovan territory in breach of the Russian Federation ’ s undertakings to withdraw completely and in breach of Moldovan legislation ... 119. ... the Russian Federation continued to do nothing either to prevent the violations of the Convention allegedly committed after 8 July 2004 or to put an end to the applicants ’ situation brought about by its agents.” 107. The Court also notes that Russia was criticised for opening polling stations in the “MRT” without Moldova ’ s consent and issuing passports to a large number of people in the Transdniestrian region as recently as 2012 (see paragraph 67 above). 108. In Catan and Others (cited above), the Court concluded as follows. “121. ... the Russian Government have not persuaded the Court that the conclusions it reached in 2004 in Ilaşcu and Others (cited above) were inaccurate. The ‘ MRT ’ was established as a result of Russian military assistance. The continued Russian military and armaments presence in the region sent a strong signal, to the ‘ MRT ’ leaders, the Moldovan Government and international observers, of Russia ’ s continued military support for the separatists. In addition, the population were dependent on free or highly subsidised gas supplies, pensions and other financial aid from Russia.” The Court considers, given the absence of any relevant new information to the contrary, that this conclusion continues to be valid for the period under consideration, namely November 2008 to July 2010. 109. Lastly, it should be noted that in the present case the Russian Government ’ s arguments concerning the jurisdictional issue are essentially the same as those which they advanced in Catan and Others (cited above). The only development cited by the Russian Government which occurred since the period covered by the two judgments in Ilaşcu and Others and Catan and Others (that is, the period prior to 2004), namely Moldova ’ s acceptance into the WTO (which, the Russian Government argued, provided scope for cooperation between Moldova and the “MRT”, see paragraph 95 above), does not, in the Court ’ s view, have a bearing on this issue. 110. The Court therefore maintains its findings in Ilaşcu and Others, Ivanţoc and Others and Catan and Others (all cited above), to the effect that the “MRT” is only able to continue to exist, and to resist Moldovan and international efforts to resolve the conflict and bring democracy and the rule of law to the region, because of Russia ’ s military, economic and political support. In these circumstances, the “MRT ’ s” high level of dependency on Russian support provides a strong indication that Russia continues to exercise effective control and a decisive influence over the “MRT” authorities (see Catan and Others, cited above, § 122). 111. It follows that the applicant in the present case falls within Russia ’ s jurisdiction under Article 1 of the Convention. Consequently, the Court dismisses the Russian Government ’ s objections ratione personae and ratione loci. 112. The Court must therefore determine whether there has been any violation of the applicant ’ s rights under the Convention such as to engage the responsibility of either respondent State. B. Exhaustion of domestic remedies 1. The parties ’ submissions 113. In paragraphs 114 and 115 of their observations of 31 October 2014, the Moldovan Government submitted that the applicant had not exhausted the remedies available to him in Moldova (see paragraph 79 above). In particular, they noted that, while he had obtained the quashing by the Supreme Court of Justice of his conviction by the “MRT court”, he had not applied, on the basis of the quashing of that judgment and relying on Law no. 1545 (1998) (see paragraph 72 above), for compensation from the Republic of Moldova for the breach of his rights. 114. The applicant did not comment on this issue. 2. The Court ’ s assessment 115. According to the Court ’ s settled case-law, States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system. Those who wish to invoke the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged to use first the remedies provided by the national legal system (see, among many other authorities, Akdivar and Others v. Turkey, 16 September 1996, § 65, Reports 1996 ‑ IV; Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 70, 25 March 2014; and Gherghina v. Romania (dec.) [GC], no. 42219/07, § 84, 9 July 2015). 116. The obligation to exhaust domestic remedies therefore requires an applicant to make normal use of remedies which are available and sufficient in respect of his or her Convention grievances. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (see Akdivar and Others, § 66; Vučković and Others, § 71; and Gherghina, § 85, all cited above ). To be effective, a remedy must be capable of directly redressing the impugned state of affairs and must offer reasonable prospects of success (see Sejdovic v. Italy [GC], no. 56581/00, § 46, ECHR 2006 ‑ II; Vučković and Others, cited above, § 74; and Gherghina, cited above, § 85 ). 117. In the present case the Court notes that section 1 of Law no. 1545 (1998) expressly states that it applies to cases where damage is caused by the unlawful actions of the criminal investigation bodies, the prosecution authorities or the courts (see paragraph 72 above). According to the Moldovan Government (see paragraph 129 below), only those authorities (in particular the courts) which were created in accordance with Moldovan law can be officially recognised as such. In the Court ’ s view, this seems to exclude any compensation for the unlawful acts of any “courts” or “prosecution” or other authorities created by the “MRT”. 118. Moreover, despite the fact that the Moldovan Government submitted several examples in which the Supreme Court of Justice had quashed rulings handed down by the “MRT courts” (as in Ilașcu and Others, cited above, § 222), as well as cases where Law no. 1545 (1998) had served as a basis for successfully claiming compensation, they did not submit any example of an individual obtaining compensation from Moldova after the quashing of an “MRT court” conviction. The Court is not convinced that in such circumstances Law no. 1545 (1998) applies to the applicant ’ s case. 119. The Court observes that in paragraph 129 of their observations of 31 October 2014 the Moldovan Government specified that the domestic remedies to be exhausted by the applicant in Moldova “[were] available remedies, which [were] effective to the extent of the Government ’ s positive obligations and lack of effective control”. In the light of this statement, their objection can be understood as referring only to the possibility of obtaining compensation under Law no. 1545 (1998) for the four-month delay (see paragraphs 48 and 51 above) in fulfilling the positive obligation to take diplomatic, economic, judicial or other measures aimed at ensuring observance of the applicant ’ s Convention rights. 120. However, the Court considers that there is nothing in Law no. 1545 (1998) that would allow the applicant to claim compensation for such a delay, since it deals with cases in which the various Moldovan investigating authorities or courts (see paragraphs 72 and 117 above) have breached an individual ’ s rights in the framework of criminal or administrative-contravention proceedings, and not with the delayed use or failure to make use of diplomatic or other means at the State level. 121. In view of the above considerations, the Court rejects the Moldovan Government ’ s objection of non-exhaustion of domestic remedies. II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 122. The applicant complained that he had been arrested and detained by unlawfully created militia and courts. He relied on Article 5 § 1 of the Convention, the relevant part of which reads as follows: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ...” A. Admissibility 123. The Court notes that the complaints under Article 5 § 1 are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. B. Merits 1. The parties ’ submissions (a) The applicant 124. The applicant complained that his detention had been unlawful. The Court ’ s case-law in respect of the requirement of lawfulness referred primarily to the observance of domestic law. Since the applicant ’ s detention had been ordered by “MRT courts”, created in breach of the relevant Moldovan legislation (see paragraphs 69 - 70 above), it could not be considered “lawful” within the meaning of Article 5 § 1 of the Convention. Moreover, the principle of ex injuria jus non oritur dictated that acts which were contrary to international law could not become a source of legal acts for the wrongdoer. 125. Referring to Ilașcu and Others (cited above, § 460), the applicant submitted in particular that the judicial system of the “MRT” did not reflect a legal tradition compatible with the Convention. The “MRT courts” lacked independence and impartiality. Relying on a number of documents, he argued that the appointment procedures for judges were not transparent and that judges were not sufficiently independent from the executive, in particular from the “President of the MRT”. In his view, there had been frequent incidents of corruption and abuse of criminal procedures for private business interests, and his own case provided an example. Moreover, the procedures which the “MRT courts” applied in respect of detention did not comply with Convention standards and did not offer guarantees against arbitrariness. The Court should therefore confirm the approach taken in Ilașcu and Others (cited above). 126. The applicant argued further that there were important differences between the present case and the cases concerning the “Turkish Republic of Northern Cyprus” (“TRNC”). Firstly, the attitude of the State exercising effective control over the area differed. While Turkey recognised the “TRNC” as an independent State, Russia did not recognise the “MRT” and, as was clear from the Russian Government ’ s observations in respect of jurisdiction in the present case, continued to consider the “MRT” as part of the Republic of Moldova. Secondly, Moldova had established a parallel system of courts for the Transdniestrian region. The task of these courts, located on the territory controlled by Moldova, was to examine civil and criminal cases relating to the Transdniestrian region. Any recognition by the Court that the “MRT courts” could be regarded as “tribunals established by law” or that they could impose “lawful” detention would undermine the functioning of these legitimate Moldovan courts. Thirdly, in contrast to the situation in the “TRNC”, the “MRT courts” did not apply the laws of the Republic of Moldova or the laws of the Russian Federation, but rather their own legal system, which was not compatible with Convention standards. 127. The applicant finally complained that after his case had been sent to the trial court his detention was unlawful since the last court order extending his detention had expired on 24 November 2009 and no new order was adopted until 21 April 2010. (b) The Moldovan Government 128. The Moldovan Government argued that the Court should follow the approach taken in Ilașcu and Others (cited above, §§ 436 and 460-62). 129. They referred to the judgment of 22 January 2013 of the Supreme Court of Justice of the Republic of Moldova (see paragraph 26 above) and stressed that it had confirmed the unlawful and arbitrary nature of the applicant ’ s conviction. They maintained that the “MRT courts” were organs of an illegal entity which had not been recognised by any State. The applicant ’ s detention as ordered by the courts of the “MRT” could not be regarded as “lawful” within the meaning of Article 5 § 1 of the Convention. In the Moldovan Government ’ s view, any conclusion to the contrary would imply a recognition of certain powers on the part of the unrecognised entity. 130. The Moldovan Government also pointed out differences between the legal traditions of the “MRT” and the “TRNC” which had led to different conclusions being reached by the Court in Ilașcu and Others (cited above), on the one hand, and in Foka v. Turkey (no. 28940/95, 24 June 2008) and Protopapa v. Turkey (no. 16084/90, 24 February 2009), on the other. The same approach as in Ilașcu and Others should be taken in the present case. The legal system of the “MRT” was based on the old Soviet system and did not reflect any commitment to the Convention or other international human rights standards. The Moldovan Government referred in particular to the “Report on Human Rights in the Transnistrian Region of the Republic of Moldova” (see paragraph 62 above). In their view, this report showed that the judicial organisation of the “MRT” did not comply with the basic principles of independence and impartiality. 131. Finally, the Moldovan Government submitted that they could not comment on the lawfulness of the applicant ’ s detention from the point of view of compliance with “MRT” law, since in any event that law was unconstitutional and the “MRT” legal system did not correspond to the principles of democracy, independence and impartiality of the judicial organisation. (c) The Russian Government 132. The Russian Government did not submit any specific observations in this regard. Their position was that they did not have “jurisdiction” in the territory of the “MRT” and that they were therefore not in a position to make any observations on the merits of the case. 2. The Court ’ s assessment 133. The Court notes that the applicant was arrested on 24 November 2008 and subsequently held in detention pending trial from 26 November 2008 to 1 July 2010 (see paragraphs 13 and 22 above). Accordingly, Article 5 § 1 (c) of the Convention is applicable. 134. It is well established in the Court ’ s case-law on Article 5 § 1 that any deprivation of liberty must not only be based on one of the exceptions listed in sub-paragraphs (a) to (f) but must also be “lawful”. Where the “lawfulness” of detention is in issue, including the question whether “a procedure prescribed by law” has been followed, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules of national law. This primarily requires any arrest or detention to have a legal basis in domestic law, but also relates to the quality of the law, requiring it to be compatible with the rule of law, a concept inherent in all the Articles of the Convention (see, for example, Del Río Prada v. Spain [GC], no. 42750/09, § 125, ECHR 2013). 135. In the present case, the question arises whether the applicant ’ s arrest and pre-trial detention can be regarded as “lawful” for the purpose of Article 5 § 1 of the Convention, given that they were ordered by organs of the “MRT”, an unrecognised entity. The Court therefore considers it appropriate to set out the general principles established in its case-law in respect of the lawfulness of acts adopted by the authorities of unrecognised entities. (a) General principles concerning the lawfulness of acts adopted by unrecognised entities 136. The Court considers that this issue is to be viewed in the context of its general approach to the exercise of extraterritorial jurisdiction in unrecognised entities. In that context the Court has had regard to the special character of the Convention as an instrument of European public order for the protection of individual human beings and its mission, as set out in Article 19 of the Convention, to “ensure the observance of the engagements undertaken by the High Contracting Parties”. It has emphasised the need to avoid a vacuum in the system of human rights protection and has thus pursued the aim of ensuring that Convention rights are protected throughout the territory of all Contracting Parties, even on territories effectively controlled by another Contracting Party, for instance through a subordinate local administration (see Cyprus v. Turkey, cited above, § 78). 137. In Cyprus v. Turkey (cited above, §§ 91-94) the Court examined the question whether applicants could be required to exhaust remedies available in the “TRNC”, that is, in an unrecognised entity. It drew inspiration, inter alia, from the stance of the ICJ in Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa), notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion, ICJ Reports 1971, § 125). In that Advisory Opinion, the ICJ had found that, while official acts performed by the government of South Africa on behalf of or concerning Namibia after the termination of the mandate were illegal and invalid, this invalidity could not be extended to those acts such as, for instance, the registration of births, deaths or marriages, the effects of which could be ignored only to the detriment of the inhabitants of that territory. The Court found that use should be made of remedies available in the “TRNC” provided that it could be shown that they existed to the advantage of individuals and offered them reasonable prospects of success. On a more general level it noted that the absence of courts in the “TRNC” would work to the detriment of the members of the Greek-Cypriot community. The Court then concluded as follows. “96. ... the obligation to disregard acts of de facto entities is far from absolute. Life goes on in the territory concerned for its inhabitants. That life must be made tolerable and be protected by the de facto authorities, including their courts; and, in the very interest of the inhabitants, the acts of these authorities related thereto cannot be simply ignored by third States or by international institutions, especially courts, including this one. To hold otherwise would amount to stripping the inhabitants of the territory of all their rights whenever they are discussed in an international context, which would amount to depriving them even of the minimum standard of rights to which they are entitled.” 138. The Court confirmed this approach in Demopoulos and Others v. Turkey ((dec.) [GC], nos. 46113/99 and 7 others, § 95, ECHR 2010). Again in the context of exhaustion of domestic remedies, the Court noted that those affected by the policies and actions of the “TRNC” came within the jurisdiction of Turkey, with the consequence that Turkey could be held responsible for violations of Convention rights taking place within that territory. It went on to say that it would not be consistent with such responsibility under the Convention if the adoption by the authorities of the “TRNC” of civil, administrative or criminal-law measures, or their application or enforcement within their territory, were to be denied any validity or regarded as having no “lawful” basis in terms of the Convention. Furthermore it noted (ibid., § 96) as follows: “... The right of individual petition under the Convention is no substitute for a functioning judicial system and framework for the enforcement of criminal and civil law. ...” 139. In Cyprus v. Turkey (cited above) the Court also had to deal with another issue of relevance in the present context. The applicant Government complained under Article 6 that Greek Cypriots in northern Cyprus were denied the right to have their civil rights and obligations determined by independent and impartial courts established by law. The Court held as follows. “231. As to the applicant Government ’ s claim that ‘ TRNC ’ courts failed to satisfy the criteria laid down in Article 6, the Commission noted, firstly, that there was nothing in the institutional framework of the ‘ TRNC ’ legal system which was likely to cast doubt either on the independence and impartiality of the civil courts or the subjective and objective impartiality of judges, and, secondly, those courts functioned on the basis of the domestic law of the ‘ TRNC ’ notwithstanding the unlawfulness under international law of the ‘ TRNC ’’ s claim to statehood. The Commission found support for this view in the Advisory Opinion of the International Court of Justice in the Namibia case ... Moreover, in the Commission ’ s opinion due weight had to be given to the fact that the civil courts operating in the ‘ TRNC ’ were in substance based on the Anglo-Saxon tradition and were not essentially different from the courts operating before the events of 1974 and from those which existed in the southern part of Cyprus. ... 236. As to the applicant Government ’ s challenge to the very legality of the ‘ TRNC ’ court system, the Court observes that they advanced similar arguments in the context of the preliminary issue concerning the requirement to exhaust domestic remedies in respect of the complaints covered by the instant application ... The Court concluded that, notwithstanding the illegality of the ‘ TRNC ’ under international law, it cannot be excluded that applicants may be required to take their grievances before, inter alia, the local courts with a view to seeking redress. It further pointed out in that connection that its primary concern in this respect was to ensure, from the standpoint of the Convention system, that dispute-resolution mechanisms which offer individuals the opportunity of access to justice for the purpose of remedying wrongs or asserting claims should be used. 237. The Court observes from the evidence submitted to the Commission (see paragraph 39 above) that there is a functioning court system in the ‘ TRNC ’ for the settlement of disputes relating to civil rights and obligations defined in ‘ domestic law ’ and which is available to the Greek-Cypriot population. As the Commission observed, the court system in its functioning and procedures reflects the judicial and common-law tradition of Cyprus (see paragraph 231 above). In its opinion, having regard to the fact that it is the ‘ TRNC domestic law ’ which defines the substance of those rights and obligations for the benefit of the population as a whole it must follow that the domestic courts, set up by the ‘ law ’ of the ‘ TRNC ’, are the fora for their enforcement. For the Court, and for the purposes of adjudicating on ‘ civil rights and obligations ’ the local courts can be considered to be ‘ established by law ’ with reference to the ‘ constitutional and legal basis ’ on which they operate. In the Court ’ s opinion, any other conclusion would be to the detriment of the Greek-Cypriot community and would result in a denial of opportunity to individuals from that community to have an adjudication on a cause of action against a private or public body ... It is to be noted in this connection that the evidence confirms that Greek Cypriots have taken successful court actions in defence of their civil rights.” 140. In several judgments concerning Turkey, the Court has applied the principles established in Cyprus v. Turkey to criminal matters (see Foka, cited above, § 83, where the arrest of the Greek-Cypriot applicant by a “TRNC” police officer was found to be lawful for the purpose of Article 5; Protopapa, cited above, § 60, where both the pre-trial detention and the detention after conviction imposed by the “TRNC” authorities were considered to be lawful for the purpose of Article 5 and a criminal trial before a “TRNC” court was found to be in accordance with Article 6; and also Asproftas v. Turkey, no. 16079/90, § 72, 27 May 2010; Petrakidou v. Turkey, no. 16081/90, § 71, 27 May 2010; and Union européenne des droits de l ’ homme and Josephides v. Turkey (dec.), no. 7116/10, § 9, 2 April 2013). 141. In Ilaşcu and Others (cited above, § 460 ), when examining whether the applicants ’ detention following their conviction by the “MRT Supreme Court” could be regarded as “lawful” under Article 5 § 1 (a) of the Convention, the Court formulated the general principle as follows. “In certain circumstances, a court belonging to the judicial system of an entity not recognised under international law may be regarded as a tribunal ‘ established by law ’ provided that it forms part of a judicial system operating on a ‘ constitutional and legal basis ’ reflecting a judicial tradition compatible with the Convention, in order to enable individuals to enjoy the Convention guarantees (see, mutatis mutandis, Cyprus v. Turkey, cited above, §§ 231 and 236-37).” (b) Application of these principles to the present case 142. With reference to the above general principles established in its case-law, the Court considers that the primary concern must always be for Convention rights to be effectively protected throughout the territory of all Contracting Parties, even if a part of that territory is under the effective control of another Contracting Party (see paragraph 136 above). Accordingly, it cannot automatically regard as unlawful, for the limited purposes of the Convention, the decisions taken by the courts of an unrecognised entity purely because of the latter ’ s unlawful nature and the fact that it is not internationally recognised. 143. In line with this rationale the Court finds it already established in its case-law that the decisions taken by the courts of unrecognised entities, including decisions taken by their criminal courts, may be considered “lawful” for the purposes of the Convention provided that they fulfil certain conditions (see Ilaşcu and Others, cited above, § 460 ). This does not in any way imply any recognition of that entity ’ s ambitions for independence (see mutatis mutandis, Cyprus v. Turkey, cited above, § 92). 144. At the same time, the Court has long held that “[t]he Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective” (see Airey v. Ireland, 9 October 1979, § 24, Series A no. 32). It is insufficient to declare that the Convention rights are protected on a certain territory – the Court must be satisfied that such protection is also effective. A primary role in ensuring that such rights are observed is assigned to the domestic courts, which must offer guarantees of independence and impartiality and fairness of proceedings. Consequently, when assessing whether the courts of an unrecognised entity satisfy the test established in Ilașcu and Others, namely whether they form “part of a judicial system operating on a ‘ constitutional and legal basis ’ ... compatible with the Convention” (cited above, § 460), the Court will attach weight to the question whether they can be regarded as independent and impartial and are operating on the basis of the rule of law. 145. In verifying whether the “MRT courts” which ordered the applicant ’ s detention, namely the “Tiraspol People ’ s Court” and the “MRT Supreme Court” satisfy the above criteria, the Court must start from the findings made in its previous case-law concerning this unrecognised entity. In Ilaşcu and Others (cited above, §§ 436 and 461 ), referring to “the patently arbitrary nature of the circumstances in which the applicants were tried and convicted” in 1993, the Court found that the “Supreme Court of the MRT” “ belongs to a system which can hardly be said to function on a constitutional and legal basis reflecting a judicial tradition compatible with the Convention” (§ 436). At the same time, it cannot be excluded that the situation has evolved since that judgment was rendered in 2004. This makes it necessary to verify whether what was established in Ilaşcu and Others with respect to the “MRT courts” before the Republic of Moldova and the Russian Federation became Parties to the Convention in 1997 and 1998 respectively continues to be valid in the present case. 146. The Court notes that the parties were asked, with specific reference to its case-law, to comment on the question whether the “MRT courts” could order the applicant ’ s lawful arrest and detention within the meaning of Article 5 § 1 of the Convention. Moreover, they were asked to comment on the specific legal basis for the applicant ’ s detention in the “MRT”. The Moldovan Government commented briefly that the legal system of the “MRT” was based on the former Soviet system and that the “MRT courts” lacked independence and impartiality (see paragraph 130 above). As to the legal basis for the applicant ’ s arrest and detention, they stated that they could not submit such information. The Russian Government referred to their position concerning their lack of jurisdiction and did not make any comments on the merits. The applicant, for his part, alleged in particular that the “MRT courts” lacked independence and impartiality. 147. In the Court ’ s view, it is in the first place for the Contracting Party which has effective control over the unrecognised entity in issue to show that its courts form “part of a judicial system operating on a constitutional and legal basis reflecting a judicial tradition compatible with the Convention” (see paragraph 144 above). As the Court has already established (see paragraph 111 above), in the case of the “MRT” it is Russia which has such effective control. To date, the Russian Government have not submitted to the Court any information on the organisation of the “MRT courts” which would enable it to assess whether they fulfil the above requirement. Nor have they submitted any details of the “MRT” law which served as a basis for the applicant ’ s detention. Furthermore, the Court notes the scarcity of official sources of information concerning the legal and court system in the “MRT”, a fact which makes it difficult to obtain a clear picture of the applicable laws. Consequently, the Court is not in a position to verify whether the “MRT courts” and their practice fulfil the requirements mentioned above. 148. There is also no basis for assuming that there is a system reflecting a judicial tradition compatible with the Convention in the region, similar to the one in the remainder of the Republic of Moldova (compare and contrast with the situation in Northern Cyprus, referred to in Cyprus v. Turkey, cited above, §§ 231 and 237). The division of the Moldovan and “MRT” judicial systems took place in 1990, well before Moldova joined the Council of Europe in 1995. Moreover, Moldovan law was subjected to a thorough analysis when it requested membership of the Council of Europe (see Opinion No. 188 (1995) of the Parliamentary Assembly of the Council of Europe on the application by Moldova for membership of the Council of Europe), with amendments proposed to ensure compatibility with the Convention, which Moldova finally ratified in 1997. No such analysis was made of the “MRT legal system”, which was thus never part of a system reflecting a judicial tradition considered compatible with Convention principles before the split into separate judicial systems occurred in 1990 (see paragraph 12 above, and Ilașcu and Others, cited above, §§ 29-30). 149. The Court also considers that the conclusions reached above are reinforced by the circumstances in which the applicant in the present case was arrested and his detention was ordered and extended (see paragraphs 13 - 15 and 17 above, in particular the order for his detention for an undefined period of time and the examination in his absence of the appeal against the decision to extend that detention), as well as by the case-law referred to by the applicant (see paragraph 75 above) and the various media reports which raise concerns about the independence and quality of the “MRT courts” (see paragraph 77 above). 150. In sum, the Court concludes that its findings in Ilașcu and Others (cited above, §§ 436 and 460-62) are still valid with respect to the period of time covered by the present case. It therefore finds that the “MRT courts” and, by implication, any other “MRT authority”, could not order the applicant ’ s “lawful arrest or detention” within the meaning of Article 5 § 1 (c) of the Convention. Accordingly, the applicant ’ s detention based on the orders of the “MRT courts” was unlawful for the purposes of that provision. 3. Responsibility of the respondent States (a) The Republic of Moldova 151. The Court must next determine whether the Republic of Moldova fulfilled its positive obligations to take appropriate and sufficient measures to secure the applicant ’ s rights under Article 5 § 1 (see paragraph 100 above). In Ilaşcu and Others (cited above, §§ 339-40), the Court held that Moldova ’ s positive obligations related both to measures needed to re-establish its control over the Transdniestrian territory, as an expression of its jurisdiction, and to measures to ensure respect for individual applicants ’ rights. The obligation to re-establish control over Transdniestria required Moldova to refrain from supporting the separatist regime and to act by taking all the political, judicial and other measures at its disposal for re ‑ establishing control over the territory. The Court took the same approach in Catan and Others (cited above, § 145). 152. As regards the first aspect of Moldova ’ s positive obligation, to re-establish control, the Court found in Ilaşcu and Others (cited above, §§ 341 ‑ 45) that from the onset of the hostilities in 1991-92 until July 2004, when judgment was given, Moldova had taken all the measures in its power to re-establish control over Transdniestrian territory. The Court found no reason to depart from that finding in Catan and Others (cited above, § 146). In the present case, the parties did not submit any new argument on the issue. There is nothing to indicate that the Moldovan Government changed their position in respect of Transdniestria in the intervening years up to the period of the applicant ’ s detention from November 2008 to July 2010. The Court therefore sees no reason to reach a different conclusion in the present case. 153. Turning to the second aspect of the positive obligation, namely to ensure respect for the applicants ’ rights, the Court found in Ilaşcu and Others (cited above, §§ 348-52) that Moldova had failed to comply fully with its positive obligations to the extent that from May 2001 it had failed to take all the measures available to it in the course of negotiations with the “MRT” and Russian authorities to bring an end to the violation of the applicants ’ rights. In the present case, however, the Court considers that the Moldovan Government made considerable efforts to support the applicant. In particular, the authorities made a number of appeals to various intergovernmental organisations and foreign countries, notably Russia, asking them to assist in securing the applicant ’ s rights (see paragraph 51 above). When the applicant asked the Moldovan Supreme Court of Justice to quash his conviction, he obtained such a decision (see paragraph 26 above) and the prosecutor ’ s office did eventually take whatever steps it could to investigate the applicant ’ s allegations relating to his unlawful detention (see paragraphs 52 - 53 above). 154. It is true that the Prosecutor General ’ s Office and the Human Rights Centre did not intervene when the applicant ’ s parents complained to them (see paragraphs 47 - 48 above). However, this may be seen against the background of the efforts made by other authorities, including those at the highest level, to ensure the protection of the applicant ’ s rights. Considering the number of complaints concerning breaches of Convention rights by the “MRT” authorities and the inevitable delay in dealing with all of them at a high diplomatic level, the Court cannot conclude that the initial lack of reaction amounts, by itself, to a failure by Moldova to take whatever steps it could in order to secure the applicant ’ s rights. 155. In the light of the foregoing, the Court considers that the Republic of Moldova fulfilled its positive obligations in respect of the applicant. It therefore finds that there has been no violation of Article 5 § 1 of the Convention by the Republic of Moldova. (b) The Russian Federation 156. The Court notes that there is no evidence that persons acting on behalf of the Russian Federation directly participated in the measures taken against the applicant. 157. Nevertheless, the Court has established that Russia exercised effective control over the “MRT” during the period in question (see paragraph 110 above). In the light of this conclusion, and in accordance with the Court ’ s case-law, it is not necessary to determine whether or not Russia exercises detailed control over the policies and actions of the subordinate local administration (see Catan and Others, cited above, §§ 106 and 150). By virtue of its continued military, economic and political support for the “MRT”, which could not otherwise survive, Russia ’ s responsibility under the Convention is engaged as regards the violation of the applicant ’ s rights. 158. In conclusion, and having found that the applicant ’ s detention was unlawful under Article 5 § 1 of the Convention (see paragraph 150 above), the Court holds that there has been a violation of that provision by the Russian Federation. 159. Having reached this conclusion, the Court finds it unnecessary to examine separately the additional complaint under Article 5 § 1 (see paragraph 127 above). III. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION 160. The applicant complained that he had been absent from some of the court hearings concerning his detention pending trial. He relied on Article 5 § 1 of the Convention. The Court considers that this complaint is to be examined under Article 5 § 4 of the Convention, which reads as follows: “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” 161. The Moldovan Government did not make any specific submissions in respect of this complaint. 162. The Russian Government did not make any submissions on this point. 163. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. However, in view of the reasons for finding that the applicant ’ s detention was unlawful (see paragraph 150 above), the Court considers that it is unnecessary to examine separately the complaint under Article 5 § 4. IV. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 164. The applicant complained of the authorities ’ failure to provide him with the requisite medical assistance for his condition. He argued that this failure exposed him to a real risk to his life, contrary to Article 2 of the Convention, the relevant part of which reads as follows: “1. Everyone ’ s right to life shall be protected by law. No one shall be deprived of his life intentionally ...” A. Admissibility 165. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions 166. The applicant submitted that in view of the acute nature of his condition and the many asthma attacks he suffered, coupled with the unfavourable prognosis he had been given by the doctors, the “MRT” authorities ’ failure to provide him with the requisite medical assistance for his condition or to release him pending trial in order to seek medical assistance in civilian hospitals had exposed him to a real risk of suffocating to death. Moreover, after a medical panel had established that risk, and in the absence of appropriate medical equipment at the Centre, he had in fact been transferred on 15 February 2010 to an ordinary prison which was even less well equipped (see paragraph 38 above). 167. The Moldovan Government submitted that they were unable to verify the facts of the case. As well as taking general measures aimed at ensuring observance of human rights in the Transdniestrian region, on being informed of the application lodged with the Court they had taken all the measures available to them by asking various intergovernmental organisations and foreign embassies to assist in securing the applicant ’ s rights. 168. The Russian Government submitted that all questions concerning the protection of the applicant ’ s rights were to be answered exclusively by Moldova. They added that in the absence of any means of confirming the facts of the case, such as medical evidence, they could not assess the conditions of the applicant ’ s detention or the quality of the medical treatment he had received. 2. The Court ’ s assessment 169. The Court has established that there may be a positive obligation on a State under the first sentence of Article 2 § 1 to protect the life of an individual from third parties or from the risk of life-endangering illness (see Osman v. the United Kingdom, 28 October 1998, §§ 115-22, Reports 1998 ‑ VIII; Yaşa v. Turkey, 2 September 1998, §§ 92-108, Reports 1998 ‑ VI; and L.C.B. v. the United Kingdom, 9 June 1998, §§ 36-41, Reports 1998 ‑ III). At the same time, it is only in exceptional circumstances that physical ill-treatment by State agents which does not result in death may disclose a violation of Article 2 of the Convention (see Makaratzis v. Greece [GC], no. 50385/99, § 51, ECHR 2004 ‑ XI). 170. In the present case the Court notes that, despite the applicant ’ s unfavourable overall prognosis, the doctors at no point established that there was an immediate risk to his life. They were able to stop the applicant ’ s asthma attacks, even though doing so required the use of medication brought in by his parents. 171. That being so, the Court considers that the facts complained of by the applicant do not call for a separate examination under Article 2 of the Convention, but would be more appropriately examined under Article 3 instead (see, mutatis mutandis, Ilaşcu and Others, cited above, § 418). V. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 172. The applicant complained that he had not been given the requisite medical assistance for his condition and had been held in inhuman conditions of detention. He relied on Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 173. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions 174. The applicant complained that the two respondent Governments had failed to secure his rights under Article 3, particularly with regard to the provision of medical assistance and the conditions of his detention. 175. The Moldovan Government submitted that they were unable to verify the facts of the case. As well as taking general measures aimed at ensuring observance of human rights in the Transdniestrian region, on being informed of the application lodged with the Court they had taken all the measures available to them by asking various intergovernmental organisations and foreign embassies to assist in securing the applicant ’ s rights. 176. According to the Russian Government, in the absence of any jurisdiction within the meaning of Article 1 of the Convention over the territory of Transdniestria, they could neither verify the facts as described by the applicant nor comment on the merits of his complaint. 2. The Court ’ s assessment 177. The Court reiterates that Article 3 of the Convention enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim ’ s behaviour (see, for example, Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV). Ill ‑ treatment must, however, attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Kudła v. Poland [GC], no. 30210/96, § 91, ECHR 2000 ‑ XI; Peers v. Greece, no. 28524/95, § 67, ECHR 2001-III; Enea v. Italy [GC], no. 74912/01, § 55, ECHR 2009; and Bouyid v. Belgium [GC], no. 23380/09, § 86, ECHR 2015 ). 178. The State must ensure that a person is detained in conditions which are compatible with respect for human dignity, that the manner and method of the execution of the measure of deprivation of liberty do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention (see Kudła, cited above, § 94, and Svinarenko and Slyadnev v. Russia [GC], nos. 32541/08 and 43441/08, § 116, ECHR 2014) and that, given the practical demands of imprisonment, his health and well-being are adequately secured (see Kudła, cited above, § 94, and Idalov v. Russia [GC], no. 5826/03, § 93, 22 May 2012 ). In most of the cases concerning the detention of persons who were ill, the Court has examined whether or not the applicant received adequate medical assistance in prison. The Court reiterates in this regard that, even though Article 3 does not entitle a detainee to be released “on compassionate grounds”, it has always interpreted the requirement to secure the health and well-being of detainees, among other things, as an obligation on the part of the State to provide detainees with the requisite medical assistance (see Pakhomov v. Russia, no. 44917/08, § 61, 30 September 2010, and Gladkiy v. Russia, no. 3242/03, § 83, 21 December 2010 ). 179. In the present case the Court notes that, although the doctors considered the applicant ’ s condition to be deteriorating and the specialists and equipment required to treat him to be lacking, the “MRT” authorities not only refused to transfer him to a civilian hospital for treatment but also exposed him to further suffering and a more serious risk to his health by transferring him to an ordinary prison on 15 February 2010 (see paragraph 38 above). It is indisputable that the applicant suffered greatly from his asthma attacks. The Court is also struck by the fact that the applicant ’ s illness, while considered serious enough to warrant the transfer to a civilian hospital of a convicted person, was not a ground for the similar transfer of a person awaiting trial (see paragraph 35 above). In view of the lack of any explanation for the refusal to offer him appropriate treatment, the Court finds that the applicant did not receive adequate medical assistance. 180. The Court will now turn to the conditions of the applicant ’ s detention. According to him, the cell was very hot, humid and poorly ventilated and lacked access to natural light. It was overcrowded and full of cigarette smoke as well as parasitic insects. He ldid not have access to a toilet for hours on end and was unable to dry clothes outside the cell. The food was inedible and there were no hygiene products. Throughout his detention he did not receive the medical assistance required by his condition (see paragraphs 28 - 41 above). 181. While the respondent Governments have not commented on the description provided by the applicant (see paragraphs 28 - 38 above), it is largely confirmed by the reports of the CPT and the United Nations Special Rapporteur on visits to various places of detention in the “MRT” (see paragraphs 61 - 64 above). The Court notes in particular that the latter ’ s visit took place in July 2008, some four months before the applicant was taken into detention. 182. On the basis of the material before it, the Court finds it established that the conditions of the applicant ’ s detention amounted to inhuman and degrading treatment within the meaning of Article 3, in particular on account of severe overcrowding, lack of access to daylight and lack of working ventilation which, coupled with cigarette smoke and dampness in the cell, aggravated the applicant ’ s asthma attacks. 3. Responsibility of the respondent States 183. The Court considers that there is no material difference in the nature of each respondent State ’ s responsibility under the Convention in respect of the various complaints made in the present case. Accordingly, for the same reasons given in respect of the complaint under Article 5 § 1 of the Convention (see paragraphs 151 - 55 above), the Court finds that there has been no violation of Article 3 of the Convention by the Republic of Moldova. 184. For the same reasons as above (see paragraphs 156 - 59 ), the Court finds that there has been a violation of Article 3 of the Convention by the Russian Federation. VI. ALLEGED VIOLATION OF ARTICLES 8 AND 9 OF THE CONVENTION 185. The applicant further complained that for no apparent reason he had been unable to see his parents for a considerable length of time, and that during the visits that had eventually been authorised they had not been allowed to speak their own language. He had also been prevented from seeing his pastor. He relied on Articles 8 and 9 of the Convention, which read as follows: Article 8 “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” Article 9 “1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2. Freedom to manifest one ’ s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 186. The Court notes that these complaints are not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. B. Merits 1. The parties ’ submissions 187. The applicant submitted that for a considerable length of time during the investigation he had been unable to see his parents. When they were finally allowed to see each other they had been asked to speak Russian rather than their native language. He had also been unable to see his pastor, and when this was eventually allowed a prison guard had been present. No reasons had been advanced as to why such strict measures had been implemented in his case, and it had been at the discretion of the investigator in charge of the criminal case against him whether to allow such visits. 188. The Moldovan Government submitted that in view of the content of the letter of the International Committee of the Red Cross (ICRC) (see paragraph 68 above), they doubted the veracity of the applicant ’ s complaint concerning the visits with his parents. 189. The Russian Government did not make any submissions on this point. 2. The Court ’ s assessment 190. The Court reiterates that detention, like any other measure depriving a person of his liberty, entails inherent limitations on his private and family life. However, it is an essential part of a prisoner ’ s right to respect for family life that the authorities enable him or, if need be, help him, to maintain contact with his close family (see, among many other authorities, Messina v. Italy (no. 2), no. 25498/94, §§ 61-62, ECHR 2000 ‑ X; Lavents v. Latvia, no. 58442/00, § 139, 28 November 2002; and Khoroshenko v. Russia [GC], no. 41418/04, § 106, ECHR 2015 ). At the same time the Court recognises that some measure of control over prisoners ’ contact with the outside world is called for and is not of itself incompatible with the Convention (see Khoroshenko, cited above, § 123). 191. In the present case the applicant claimed that he had been completely denied visits by his parents during the first six months of his detention. The first visit had been authorised on 4 May 2009. He submitted evidence of his requests to see his parents submitted on 5 March and 13, 16 and 30 April 2009, 9 December 2009 and 15 February 2010. Moreover, when a visit had been allowed on 16 February 2010, the applicant and his mother had had to talk to each other in the presence of a prison guard and had been asked to speak Russian instead of their mother tongue, German (see paragraph 44 above). 192. The Moldovan Government doubted the veracity of this claim, referring to the letter from the ICRC (see paragraph 68 above). The Court notes that the ICRC visited the applicant in April 2010, whereas his complaint referred to the period from 2009 until the visit of 16 February 2010. Moreover, the letter relied on by the Moldovan Government merely mentioned that the applicant was in regular contact with his family, without specifying the nature of that contact. In the light of the above, the Court sees no reason to doubt the applicant ’ s account of the facts and concludes that there was interference with his right to respect for his family life within the meaning of Article 8 § 1 of the Convention in that he was prevented from seeing his parents for a considerable length of time. It remains to be examined whether this interference was justified under the second paragraph of Article 8. 193. The Court reiterates that Article 8 § 2 requires any interference to be “in accordance with the law”. It notes that the applicant did not argue that the interference with his rights under Articles 8 and 9 had been unlawful because it had been carried out pursuant to the decisions of unlawfully constituted courts or other authorities. In any event, the Court notes that the respondent Governments have not submitted any details, while the limited material available from the applicant is insufficient to form a clear understanding of the applicable “MRT” law. The Court is therefore not in a position to assess whether the interference complained of was “in accordance with the law” and whether it was based on any clear criteria or was at the investigator ’ s discretion, as submitted by the applicant. However, it notes that no reasons for refusing family visits are apparent from the documents in the file and it is clear that the applicant was unable to see his parents for six months after his initial arrest. 194. The respondent Governments did not submit any explanation as to why it had been necessary to separate the applicant from his family for such a considerable length of time. It has therefore not been shown that the interference pursued a legitimate aim or was proportionate to that aim, as required under Article 8 § 2 of the Convention. 195. Similarly, the Court finds it unacceptable in principle that a prison guard was present during family visits (compare Khoroshenko, cited above, § 146). It is clear that the guard was there specifically in order to monitor what the family discussed, given that they were at risk of having the visit cancelled if they did not speak a language he understood (see paragraph 44 above). Again, no explanation has been given as to why the visits had to be monitored so closely. 196. The Court therefore finds that, regardless of whether there was a legal basis for the interference with the applicant ’ s rights, the restriction on prison visits from his parents did not comply with the other conditions set out in Article 8 § 2 of the Convention. 197. Turning now to the applicant ’ s complaint that he was not allowed to see Pastor Per Bergene Holm, the Court reiterates that the authorities ’ refusal to allow a prisoner to meet a priest constitutes interference with the rights guaranteed under Article 9 of the Convention (see, for instance, Poltoratskiy v. Ukraine, no. 38812/97, § 167, ECHR 2003 ‑ V). 198. The applicant alleged that the pastor who attempted to visit him was denied access in June and September 2009. This was confirmed by the pastor in a letter to the Court (see paragraph 45 above). The two respondent Governments have not made any submissions on this point. The Court sees no reason to doubt the description of the facts provided by the applicant and the pastor and accepts that there was interference with the applicant ’ s right to freedom of religion. 199. Again, it is not clear whether there was a legal basis for the refusal to allow visits, and no reasons have been advanced to justify the refusal. The Court considers that it has not been shown that the interference with the applicant ’ s right pursued a legitimate aim or was proportionate to that aim, as required under Article 9 § 2 of the Convention. 3. Responsibility of the respondent States 200. The Court finds, for the same reasons given in respect of the complaint under Article 5 § 1 of the Convention (see paragraphs 151 - 55 above), that there has been no violation of Articles 8 and 9 of the Convention by the Republic of Moldova. 201. For the same reasons as above (see paragraphs 156 - 59 ), the Court finds that there has been a violation of Articles 8 and 9 of the Convention by the Russian Federation. VII. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLES 2, 3, 5, 8 AND 9 202. The applicant further complained that he had had no effective remedies in respect of his complaints under Articles 2, 3, 5, 8 and 9 of the Convention. He relied on Article 13 of the Convention, which reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. Admissibility 203. The Court notes that the complaint under Article 13 taken in conjunction with Articles 2, 3, 5, 8 and 9 is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions 204. The applicant submitted that he had had no means of asserting his rights in the face of the actions of the “MRT” authorities, and that the respondent Governments had not indicated any remedies that he should have exhausted. 205. The Moldovan Government submitted that the applicant had had at his disposal the ordinary remedies available in Moldova, where courts, prosecutors ’ offices, notaries ’ offices and so forth had been created for the specific purpose of protecting the rights and interests of persons living in the Transdniestrian region. 206. The Russian Government did not make any submissions on this point. 2. The Court ’ s assessment 207. The Court reiterates that the effect of Article 13 is to require the provision of a domestic remedy allowing the competent national authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they comply with their obligations under that provision (see Chahal v. the United Kingdom, 15 November 1996, § 145, Reports 1996 ‑ V). The remedy required by Article 13 must be “effective”, both in practice and in law. However, such a remedy is required only for complaints that can be regarded as “arguable” under the Convention (see De Souza Ribeiro v. France [GC], no. 22689/07, § 78, ECHR 2012, and Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 148, ECHR 2014). 208. The Court observes that it found no need to examine the complaint under Article 2 of the Convention separately, considering that the facts of the case were more appropriately examined under Article 3 (see paragraph 171 above). Similarly, it does not find it necessary to examine separately whether his complaint under Article 2 was arguable for the purposes of Article 13 as it will in any event deal with the matter under the head of Article 3. The Court observes that the applicant ’ s complaint under Article 3, as well as those under Articles 5, 8 and 9 of the Convention were arguable. However, as regards the applicant ’ s complaint under Article 5 § 1, the Court observes that Article 5 § 4, which the Court did not consider necessary to examine separately in the circumstances of the case (see paragraph 163 above ), is the lex specialis in relation to Article 13. 209. The applicant was therefore entitled to an effective domestic remedy within the meaning of Article 13 in respect of his complaints under Articles 3, 8 and 9 of the Convention. Accordingly, the Court will examine whether such a remedy was available to the applicant. 210. As far as the applicant ’ s complaint against Moldova is concerned, the Court refers to the considerations it set out above in respect of the Moldovan Government ’ s objection of non-exhaustion, which led it to the conclusion that the proceedings for damages the applicant could have pursued before the Moldovan courts could not be considered an effective remedy in respect of any of his complaints (see paragraphs 115 ‑ 21 ) above. 211. As far as the applicant ’ s complaint against Russia is concerned, the Court reiterates that in certain circumstances applicants may be required to exhaust effective remedies available in an unrecognised entity (see Demopoulos and Others, cited above, §§ 89 and 92-96). However, there is no indication in the file, and the Russian Government have not claimed, that any effective remedies were available to the applicant in the “MRT” in respect of the above-mentioned complaints. 212. The Court therefore concludes that the applicant did not have an effective remedy in respect of his complaints under Articles 3, 8 and 9 of the Convention. Consequently, the Court must decide whether any violation of Article 13 can be attributed to either of the respondent States. 3. Responsibility of the respondent States (a) The Republic of Moldova 213. The Court notes at the outset that the nature of the positive obligations to be fulfilled by the Republic of Moldova (see paragraphs 99 ‑ 100 above) does not require the payment of compensation for breaches by the “MRT”. Accordingly, the rejection of the preliminary objection concerning non-exhaustion of domestic remedies owing to the absence of a proven right to compensation from the Moldovan authorities for breaches of Convention rights by the “MRT” (see paragraphs 115 - 21 above) does not have any effect on the Court ’ s analysis concerning the fulfilment of positive obligations by the Republic of Moldova. 214. The Court considers that it would be inconsistent for it to find that Moldova, while having no means of controlling the actions of the “MRT” authorities, should be held responsible for its inability to enforce any decisions adopted by the Moldovan authorities on the territory under the effective control of the “MRT”. The Court reiterates that the positive obligation incumbent on Moldova is to use all the legal and diplomatic means available to it to continue to guarantee to those living in the Transdniestrian region the enjoyment of the rights and freedoms defined in the Convention (see paragraph 100 above). Accordingly, the “remedies” which Moldova must offer the applicant consist in enabling him to inform the Moldovan authorities of the details of his situation and to be kept informed of the various legal and diplomatic actions taken. 215. In this connection the Court notes that Moldova has created a set of judicial, investigative and civil-service authorities which work in parallel with those created by the “MRT” (see paragraph 205 above). While the effects of any decisions taken by these Moldovan authorities can only be felt outside the Transdniestrian region, they have the function of enabling cases to be brought in the proper manner before the Moldovan authorities, which can then initiate diplomatic and legal steps to attempt to intervene in specific cases, in particular by urging Russia to fulfil its obligations under the Convention in its treatment of the “MRT” and the decisions taken there. 216. In the light of the foregoing, the Court considers that the Republic of Moldova has made procedures available to the applicant commensurate with its limited ability to protect the applicant ’ s rights. It has thus fulfilled its positive obligations. Accordingly, the Court finds that there has been no violation of Article 13 of the Convention by that State. (b) The Russian Federation 217. In the present case, the Court has found that the Russian Federation continues to exercise effective control over the “MRT” (see paragraph 110 above). In accordance with its case-law it is thus not necessary to determine whether Russia exercises detailed control over the policies and actions of the subordinate local authority. Russia ’ s responsibility is engaged by virtue of its continued military, economic and political support for the “MRT”, which could not otherwise survive. 218. In the absence of any submission by the Russian Government as to any remedies available to the applicant, the Court concludes that there has been a violation by the Russian Federation of Article 13 taken in conjunction with Articles 3, 8 and 9. VIII. ALLEGED VIOLATION OF ARTICLE 17 OF THE CONVENTION 219. Lastly, the applicant complained of a breach of Article 17 of the Convention by both respondent States on account of their tolerance towards the unlawful regime installed in the “MRT”, which did not recognise any rights set forth in the Convention. Article 17 reads as follows: “Nothing in [the] Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.” 220. The Moldovan Government submitted that Moldova had never tolerated the creation and continued existence of the “MRT” and had consistently called for the restoration of democracy, the rule of law and human rights in the Transdniestrian region. Moldova had never sought to act in a manner aimed at destroying the rights and freedoms protected by the Convention or setting new limitations on such rights. 221. The Russian Government did not make any submissions on this point. 222. The Court observes that Article 17 of the Convention can only be applied in conjunction with the substantive provisions of the Convention. In so far as it refers to groups and individuals, its purpose is to make it impossible for them to derive from the Convention a right to engage in any activity or perform any act aimed at destroying any of the rights and freedoms set forth in the Convention (see Lawless v. Ireland (no. 3), 1 July 1961, p. 45, § 7, Series A no. 3, and Orban and Others v. France, no. 20985/05, § 33, 15 January 2009). In so far as it refers to the State, Article 17 has been relied on in alleging that a State has acted in a manner aimed at the destruction of any of these rights and freedoms or at limiting them to a greater extent than is provided for in the Convention (see, for instance, Engel and Others v. the Netherlands, 8 June 1976, § 104, Series A no. 22). 223. The Court considers that the complaint, as formulated by the applicant, alleging a breach of Article 17 on account of the respondent States ’ tolerance of the “MRT” falls outside the scope of that Article. In any case, the Court finds no evidence to suggest that either of the respondent States set out deliberately to destroy any of the rights relied on by the applicant in the present case, or to limit any of these rights to a greater extent than is provided for in the Convention. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 § § 3 (a) and 4 of the Convention. IX. APPLICATION OF ARTICLE 41 OF THE CONVENTION 224. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Pecuniary damage 225. The applicant claimed 74,538 euros (EUR) in respect of pecuniary damage. This included the cost of the medication, food and clothes brought to him in prison, as well as the money already paid (see paragraph 22 above) or which might be paid by his parents from the sale of his apartment in order to repay to the third party the damages awarded by the “Tiraspol People ’ s Court” as part of the applicant ’ s sentence. 226. The Moldovan Government submitted that in the absence of a violation by the Republic of Moldova of any Convention rights no compensation was payable. In any event, there was no causal link between the violations complained of and the loss or potential loss of real estate. 227. The Russian Government submitted that they should not be liable to pay compensation, since they could not be held responsible for any violation of the applicant ’ s rights. In any event, it was impossible to verify the sums claimed, which moreover appeared excessive. 228. The Court notes that it has not found the Republic of Moldova responsible for any violation of the Convention in the present case. Accordingly, no award of compensation for pecuniary damage is to be made as regards this respondent State. 229. The Court observes that it has found breaches by the Russian Federation of Articles 3, 5 § 1, 8, 9 and 13 of the Convention. However, it does not discern any causal link between the violation of these provisions and the payment of any sums of money following the applicant ’ s conviction. In this context it notes that no complaint under Article 6 was made and that the applicant ’ s conviction was not examined as part of the present case. It therefore rejects this part of the claim. 230. Conversely, it awards the applicant EUR 5,000 in respect of the cost of his medication and treatment after his release from prison and the cost of the food and clothing the prison could not provide, to be paid by the Russian Federation. B. Non-pecuniary damage 231. The applicant claimed EUR 50,000 in respect of non-pecuniary damage in compensation for the suffering caused to him. 232. The Moldovan Government submitted that the sum claimed was excessive. 233. The Russian Government made a similar submission to that made in paragraph 227 above. 234. The Court notes that it has found that the Republic of Moldova was not responsible for any violation of the applicant ’ s rights protected by the Convention in the present case. Accordingly, no award of compensation for non-pecuniary damage is to be made with regard to this respondent State. 235. Having regard to the violations by the Russian Federation found above and their gravity, the Court considers that an award for non-pecuniary damage is justified in this case. Making its assessment on an equitable basis, the Court awards the applicant EUR 20,000, to be paid by the Russian Federation. C. Costs and expenses 236. The applicant also claimed EUR 1,575 for the costs and expenses incurred before the domestic courts and EUR 14,850 for those incurred before the Court. He relied on receipts for sums paid at domestic level and on a contract with the lawyers who represented him before the Court, which included an itemised list of the hours spent on the case (ninety-nine hours at an hourly rate of EUR 150). 237. The Moldovan Government considered that both the number of hours worked on the case and the sum claimed were excessive. 238. The Russian Government argued that, given that the applicant ’ s lawyer had relied heavily on the judgment in Ilaşcu and Others and had had to carry out only limited additional research, the sum claimed for legal costs was excessive. 239. The Court notes that it has found that the Republic of Moldova, having fulfilled its positive obligations, was not responsible for any violation of the Convention in the present case. Accordingly, no award of compensation for costs and expenses is to be made with regard to this respondent State. 240. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 4,000 covering costs under all heads, to be paid by the Russian Federation. D. Default interest 241. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court came to the conclusion that the facts complained of fell within the jurisdiction of both the Republic of Moldova and of Russia under Article 1 (obligation to respect human rights) of the Convention. It observed in particular that, although Moldova had no effective control over the acts of the “MRT” in Transdniestria, the fact that the region was recognised under public international law as part of Moldova’s territory gave rise to an obligation for that State, under Article 1, to use all the legal and diplomatic means available to it to continue to guarantee the enjoyment of the rights under the Convention to those living there. As regards Russia, the Court maintained the findings it had made in previous cases, to the effect that the “MRT” was only able to continue to exist because of Russian military, economic and political support. In those circumstances, the region’s high level of dependency on Russian support gave a strong indication that Russia continued to exercise effective control and decisive influence over the “MRT” authorities. In the present case, the Court concluded that the Republic of Moldova, having fulfilled its obligations in respect of the applicant by making significant legal and diplomatic efforts to support him, had not violated his rights under the Convention. At the same time, having regard to its finding that Russia had exercised effective control over the “MRT” during the period in question, the Court concluded that Russia was responsible for the violations of the Convention. |
523 | Criminalisation of homosexual relations in general | PROCEEDINGS BEFORE THE COMMISSION 13. In his application before the Commission (no. 15070/89) lodged on 22 May 1989, the applicant complained that the prohibition on male homosexual activity constituted a continuing interference with his right to respect for private life in breach of Article 8 (art. 8) of the Convention. 14. On 6 December 1990 the Commission declared the application admissible. In its report of 3 December 1991, drawn up under Article 31 (art. 31) of the Convention, it concluded unanimously that there had been a breach of Article 8 (art. 8). The full text of the Commission ’ s opinion is reproduced as an annex to this judgment [*]. FINAL SUBMISSIONS MADE BY THE GOVERNMENT 15. At the hearing on 27 October 1992 the Government requested the Court to find that there had been no breach of Article 8 (art. 8). AS TO THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 (art. 8) 16. The applicant complained that the maintenance in force of provisions of the Cypriot Criminal Code (see paragraph 8 above) which criminalise private homosexual relations constitutes an unjustified interference with his right to respect for private life under Article 8 (art. 8) of the Convention which reads: "1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others." A. The existence of an interference 17. The Government submitted that neither the applicant nor any other person in his situation could be lawfully prosecuted under sections 171, 172 and 173 of the Cypriot Criminal Code, since, to the extent that these provisions concerned homosexual relations in private between consenting male adults, they are in conflict with Article 15 of the Cypriot Constitution (see paragraph 10 above) and Article 8 (art. 8) of the Convention. To that extent the prohibition of such relations is in fact no longer in force. Moreover, since 1981 the Attorney-General, who has exclusive competence to institute and discontinue criminal proceedings, has not brought or permitted a prosecution in respect of such homosexual conduct (see paragraph 12 above). Accordingly, there being no risk of prosecution, there is no interference with the applicant ’ s rights under Article 8 (art. 8). 18. The applicant disagreed. In his view, the impugned provisions are still in force. He pointed to the statements of various Government ministers who, by objecting to the amendment of the law, had implicitly acknowledged its validity (see paragraph 9 above). Moreover, the policy of the Attorney-General not to prosecute could change at any time and a member of the public could bring a private prosecution against the applicant. There is thus no guarantee that he will not be prosecuted. 19. For the Commission, the applicant ’ s fear of prosecution could not be regarded as unfounded. 20. The Court first observes that the prohibition of male homosexual conduct in private between adults still remains on the statute book (see paragraph 8 above). Moreover, the Supreme Court of Cyprus in the case of Costa v. The Republic considered that the relevant provisions of the Criminal Code violated neither the Convention nor the Constitution notwithstanding the European Court ’ s Dudgeon v. the United Kingdom judgment of 22 October 1981 (Series A no. 45) (see paragraph 11 above). 21. The Government, however, have maintained that this case was decided by the Supreme Court in June 1982, prior to the Norris v. Ireland judgment of 26 October 1988 (Series A no. 142) and before the implications of the Dudgeon decision were properly understood; and further that since the Costa case did not concern private homosexual relations between adults the Supreme Court ’ s remarks concerning the Dudgeon judgment were obiter dicta. 22. In the Court ’ s view, whatever the status in domestic law of these remarks, it cannot fail to take into account such a statement from the highest court of the land on matters so pertinent to the issue before it (see, mutatis mutandis, the Pine Valley Developments Ltd and Others v. Ireland judgment of 29 November 1991, Series A no. 222, pp. 23-24, para. 52). 23. It is true that since the Dudgeon judgment the Attorney-General, who is vested with the power to institute or discontinue prosecutions in the public interest, has followed a consistent policy of not bringing criminal proceedings in respect of private homosexual conduct on the basis that the relevant law is a dead letter. Nevertheless, it is apparent that this policy provides no guarantee that action will not be taken by a future Attorney-General to enforce the law, particularly when regard is had to statements by Government ministers which appear to suggest that the relevant provisions of the Criminal Code are still in force (see paragraph 9 above). Moreover, it cannot be excluded, as matters stand, that the applicant ’ s private behaviour may be the subject of investigation by the police or that an attempt may be made to bring a private prosecution against him. 24. Against this background, the Court considers that the existence of the prohibition continuously and directly affects the applicant ’ s private life. There is therefore an interference (see the above-mentioned Dudgeon and Norris judgments, Series A nos. 45 and 142, pp. 18-19, paras. 40-41, and pp. 17-18, paras. 35-38). B. The existence of a justification under Article 8 para. 2 (art. 8-2) 25. The Government have limited their submissions to maintaining that there is no interference with the applicant ’ s rights and have not sought to argue that there exists a justification under paragraph 2 of Article 8 (art. 8-2) for the impugned legal provisions. In the light of this concession and having regard to the Court ’ s case-law (see the above-mentioned Dudgeon and Norris judgments, pp. 19-25, paras. 42-62, and pp. 18-21, paras. 39-47), a re-examination of this question is not called for. C. Conclusion 26. Accordingly, there is a breach of Article 8 (art. 8) in the present case. II. APPLICATION OF ARTICLE 50 (art. 50) 27. Under Article 50 (art. 50) of the Convention: "If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party." A. Damage 28. The applicant first submitted that he should be awarded a sum to compensate him for the amount of time he has lost from his work as a self-employed architect by participating in the Strasbourg proceedings as well as an amount for mental stress and suffering. 29. Both the Government and the Delegate of the Commission considered that no award should be made. 30. The Court considers that, in the circumstances of the case, the finding of a breach of Article 8 (art. 8) constitutes sufficient just satisfaction under this head for the purposes of Article 50 (art. 50). B. Costs and expenses 31. The applicant also claimed 7,730 Cyprus pounds in respect of legal fees and 2,836 Cyprus pounds by way of travelling, subsistence and other out-of-pocket expenses connected with the Strasbourg proceedings. 32. The Government considered that it would be fair and reasonable to limit the award of costs to 1,000 Cyprus pounds but had no objection to awarding the full amount claimed for expenses. 33. Taking its decision on an equitable basis, as required by Article 50 (art. 50), and applying the criteria laid down in its case-law, the Court holds that the applicant should be awarded 4,000 Cyprus pounds in respect of fees together with the full amount claimed by way of expenses. | The Court held that there had been a violation of Article 8 (right to respect for private life) of the Convention. It found that the existence of this legislation continuously and directly affected the applicant’s private life. |
744 | Urban development | II. RELEVANT DOMESTIC LAW 25. Article 108 of the Code of Civil Procedure reads as follows: “The parties shall be responsible for taking procedural steps on their own initiative unless the law provides otherwise”. 26. Sections 15 and 16 of Law no. 1337/1983 provide that the demolition of a building constructed on the basis of a building permit which has subsequently been revoked for any reason is to be suspended if the owner of the building acted in good faith. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION DUE TO THE NON-COMPLIANCE WITH THE JUDGMENTS PRONOUNCED 27. The applicants complained about the failure of the authorities to comply with decisions nos. 3955/1995 and 3956/1995 of the Supreme Administrative Court. They relied on Article 6 § 1 of the Convention which, insofar as relevant, provides: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair... hearing within a reasonable time by [a] ... tribunal...” 28. The Government argued that the town-planning authority had taken all the necessary measures to comply with the decisions of the Supreme Administrative Court. In particular, it no longer applied the prefect’s decision no. 2400/1988 and had carried out a land-planning study for the area. It was true that the prefect had issued two decisions (nos. DP2315 /1996 and DP2316 /1996) which excluded the contested buildings from demolition; in this connection the Government submitted that the demolition of the buildings in question was not the only possible way to comply with the decisions of the Supreme Administrative Court. On the contrary, it was admitted both by the relevant legislation and by the general principles of law that the demolition of a building was an extreme measure and had to be avoided, especially when the owner of the building had acted in good faith and had no reason to believe that the building permit on the basis of which construction had taken place would subsequently be annulled. Therefore, the Government concluded that the authorities had complied in substance with decisions nos. 3955/1995 and 3956/1995 of the Supreme Administrative Court. 29. The applicants contested the Government’s allegation that the national authorities had complied in substance with the above-mentioned decisions. They were surprised that the Greek Government regarded the exclusion of the contested buildings from demolition as compliance with the annulment of the building permits. They claimed that the only legal consequence of the annulment of the building permits was the demolition of the buildings constructed on the basis of these permits and noted that the Greek authorities had failed to demolish them. 30. The Court reiterates that, according to its established case-law, Article 6 § 1 secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court; in this way it embodies the “right to a court”, of which the right of access, namely the right to institute proceedings before courts in civil matters, constitutes one aspect. However, that right would be illusory if a Contracting State’s domestic legal system allowed a final, binding judicial decision to remain inoperative to the detriment of one party. Execution of a judgment given by any court must therefore be regarded as an integral part of the “trial” for the purposes of Article 6. Where administrative authorities refuse or fail to comply, or even delay doing so, the guarantees under Article 6 enjoyed by a litigant during the judicial phase of the proceedings are rendered devoid of purpose (see Hornsby v. Greece, judgment of 19 March 1997, Reports of Judgments and Decisions 1997–II, pp. 510-11, §§ 40-41). 31. In the present case the Court notes that a special committee of the Supreme Administrative Court found that the authorities had failed to comply with its decisions nos. 3955/1995 and 3956/1995. They had not demolished the two buildings constructed on the basis of permits nos. 620/1993 and 298/1992 and had continued issuing building permits in respect of the area that had been included in the settlements further to the unlawful redrawing of the boundaries. 32. Thus, by refraining for more than seven years from taking the necessary measures to comply with two final, enforceable judicial decisions in the present case the Greek authorities deprived the provisions of Article 6 § 1 of the Convention of all useful effect. There has accordingly been a breach of that Article. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AS REGARDS THE LENGTH OF THE PROCEEDINGS 33. The applicants complained that the length of the proceedings instituted by the first applicant against M. and the proceedings concerning the demolition of their house had exceeded a reasonable time within the meaning of Article 6 § 1 of the Convention. 34. In the Government’s submission, the proceedings against M. had been protracted by the conduct of the parties. In particular, the Government noted that, in civil cases, it was for the parties to take the initiative to ensure that the proceedings progressed; they were, inter alia, responsible for obtaining hearing dates. The Government claimed that the first applicant had not pursued her suit diligently. 35. The Government further argued that the applicants had failed to speed up the proceedings in connection with the threatened demolition of their house and had not asked for an expeditious hearing. In any event, they pointed out that the Supreme Administrative Court had decided to suspend the demolition of their house. Therefore, even if the proceedings were still pending, the applicants had rapidly enjoyed judicial protection of their rights. 36. The first applicant submitted in reply that, even if the parties were partly responsible for the delays, as the Government suggested, her case against M. was a routine property dispute concerning a small piece of land on a Greek island. There was no reason why it should have taken more than eight years for the first-instance court to reach a final decision. 37. As regards the proceedings in connection with the threatened demolition of their house, the applicants submitted that the problem did not stem from the scheduling of the hearings but from the successive adjournments, and that the failure to make an extraordinary request for expeditious scheduling could not explain the length of the proceedings. They further asserted that the suspension of the demolition was an interim measure and, as such, was far from constituting a resolution of the dispute. Moreover, it did not remedy the adverse consequences stemming from the threatened demolition. A. Periods to be taken into consideration 38. The Court notes that the proceedings against M. started on 31 January 1991 and are still pending before the Aegean Court of Appeal. They have therefore lasted more than twelve years to date for two levels of jurisdiction. 39. As regards the proceedings in connection with the threatened demolition of the applicants’ house, the Court notes that they started on 6 October 1994 and are still pending before the Piraeus Court of Appeal. They have therefore lasted more than eight years and three months to date for one level of jurisdiction. B. Reasonableness of the length of the proceedings 40. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case and with the help of the following criteria: the complexity of the case, the conduct of the parties, the conduct of the authorities dealing with the case and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000 ‑ VII). 41. The Court notes that the cases in question were not particularly complex and considers that the applicants could not be deemed responsible for the delays encountered in the handling of their cases. It points out that the Government did not supply any explanation for the overall duration of the proceedings, which seems manifestly excessive. Consequently, it appears to the Court that the length of the proceedings resulted mainly from the conduct of the relevant authorities. 42. The Court reiterates that Article 6 § 1 imposes on the Contracting States the duty to organise their judicial systems in such a way that their courts can meet each of its requirements, including the obligation to hear cases within a reasonable time ( Frydlender v. France, op. cit., § 45). 43. In the light of the criteria laid down in its case-law and having regard to all the circumstances of the case, the Court concludes that the length of the proceedings complained of was excessive and failed to satisfy the “reasonable time” requirement. There has accordingly been a violation of Article 6 § 1 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 44. The applicants contended that urban development in the south ‑ eastern part of Tinos had led to the destruction of their physical environment and had affected their life. They relied on Article 8 of the Convention, which provides: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Arguments of the parties 1. The applicants 45. The applicants asserted that, regardless of the danger to one’s health, the deterioration of the environment fell to be examined under Article 8 of the Convention where it adversely affected one’s life. They agreed that Article 8 was not violated every time environmental deterioration occurred. They understood the importance of urban development and the economic interests associated with it. They also understood that States had discretion in making decisions about urban planning. On the other hand, the applicants had no doubt that any State interference with the environment should strike a fair balance between the competing interests of the individuals and the community as a whole. In the present case the issue of the fair balance was rather simple. In its decisions nos. 3955/1995 and 3956/1995 the Supreme Administrative Court had itself tipped the balance in favour of the swamp and against urban development. Consequently, the Greek authorities were obliged to abide by their own choice. However, in failing to comply with the above-mentioned decisions, they had allowed the destruction of the swamp. 46. In this respect, the applicants pointed out that the area had lost all of its scenic beauty and had changed profoundly in character from a natural habitat for wildlife to a tourist development. Part of the swamp had been reclaimed so as to create, in addition to the buildings, a car park and a road. There were noises and lights on all night and a great deal of environmental pollution from the activities of the firms in the vicinity. The applicants argued that they were under no obligation to tolerate this deterioration since it was the direct result of the State’s illegal activity. 47. The applicants concluded that the State authorities had not only failed to fulfil their positive duty to take reasonable and appropriate measures to secure their rights under Article 8, but had also, by their own activity, illegally affected the enjoyment of these rights. 2. The Government 48. The Government submitted that the applicants’ complaint mainly concerned the protection of the swamp. That and not the protection of their home or their private life was the reason why they had applied to the Supreme Administrative Court. There could therefore be no issue under Article 8, all the more so as the competent authorities had taken all appropriate measures to protect the environment in the area concerned. 49. Even assuming that Article 8 applied in the present case, the Government stressed that the applicants’ house was the only one at the upper end of the peninsula and that the other buildings of the settlement were located a certain distance away from it. Thus, there could not possibly be any serious disturbance from the applicants’ neighbours. In this connection, the Government expressed the view that what the applicants were really claiming was the right to be the only ones to possess a house in the area. That was not feasible. In any event, the Government considered that any nuisance that the applicants might have suffered on account of the construction of the new buildings and the general organisation of the social character of the region had to be tolerated as an inevitable and temporary consequence of the urban way of life. 50. The Government concluded that, had there been any interference with the applicants’ rights guaranteed by paragraph 1 of Article 8, it was clearly justified under paragraph 2. B. The Court’s assessment 51. The Court notes that the applicants’ complaint under Article 8 of the Convention may be regarded as comprising two distinct limbs. First, they complained that urban development had destroyed the swamp which was adjacent to their property and that the area where their home was had lost all of its scenic beauty. Second, they complained about the environmental pollution caused by the noises and night-lights emanating from the activities of the firms operating in the area. 52. With regard to the first limb of the applicants’ complaint, the Court notes that according to its established case-law, severe environmental pollution may affect individuals’ well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely, without, however, seriously endangering their health (see Lopez Ostra v. Spain, judgment of 9 December 1994, Series A no. 303-C, p. 54, § 51). Yet the crucial element which must be present in determining whether, in the circumstances of a case, environmental pollution has adversely affected one of the rights safeguarded by paragraph 1 of Article 8 is the existence of a harmful effect on a person’s private or family sphere and not simply the general deterioration of the environment. Neither Article 8 nor any of the other Articles of the Convention are specifically designed to provide general protection of the environment as such; to that effect, other international instruments and domestic legislation are more pertinent in dealing with this particular aspect. 53. In the present case, even assuming that the environment has been severely damaged by the urban development of the area, the applicants have not brought forward any convincing arguments showing that the alleged damage to the birds and other protected species living in the swamp was of such a nature as to directly affect their own rights under Article 8 § 1 of the Convention. It might have been otherwise if, for instance, the environmental deterioration complained of had consisted in the destruction of a forest area in the vicinity of the applicants’ house, a situation which could have affected more directly the applicants’ own well-being. To conclude, the Court cannot accept that the interference with the conditions of animal life in the swamp constitutes an attack on the private or family life of the applicants. 54. As regards the second limb of the complaint, the Court is of the opinion that the disturbances coming from the applicants’ neighbourhood as a result of the urban development of the area (noises, night-lights, etc.) have not reached a sufficient degree of seriousness to be taken into account for the purposes of Article 8. 55. Having regard to the foregoing, the Court considers that there is no lack of respect for the applicants’ private and family life. There has accordingly been no violation of Article 8. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 56. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 57. The applicants sought compensation for non-pecuniary damage. The first applicant claimed 15,000,000 Greek drachmas (GRD) (44,020.54 euros (EUR)) and the second applicant claimed GRD 10,000,000 (EUR 29,347.03). 58. The Government considered that these claims were exaggerated. They maintained that any just satisfaction that might be awarded to the applicants should not exceed EUR 7,337. 59. The Court considers that the applicants must have suffered feelings of frustration, uncertainty and anxiety as a result of the violations of their rights under the Convention. Making an assessment on an equitable basis, it decides to award the first applicant EUR 20,000 and the second applicant EUR 10,000 for the non-pecuniary damage sustained. B. Costs and expenses 60. The applicants claimed GRD 7,514,572 (EUR 22,053.04) for the proceedings before the domestic authorities. They broke that sum down as follows: (i) GRD 73,080 for the proceedings concerning the redrawing of the boundaries of the swamp; ( ii ) GRD 900,000 for the proceedings before the Supreme Administrative Court concerning the annulment of the building permits; ( iii ) GRD 1,436,009 for the proceedings concerning the execution of judgments nos. 3955/1995 and 3956/1995; ( iv ) GRD 967,700 for the proceedings against M.; (v) GRD 2,402,491 for the proceedings concerning the threatened demolition of their house; ( vi ) GRD 327,980 for expert opinions concerning the size of the swamp, the age of their house and the size of their property; ( vii ) GRD 1,407,312 for travel expenses. 61. For the proceedings before the Court, for which they had received legal aid, the applicants sought EUR 21,939.53. 62. The Court, in accordance with its case-law, will consider whether the costs and expenses claimed were actually and necessarily incurred in order to prevent or obtain redress for the matter found to constitute a violation of the Convention and were also reasonable as to quantum (see, among other authorities, Wettstein v. Switzerland, no. 33958/96, § 56, ECHR 2000-XII). 63. The Court considers that only part of the costs incurred before the domestic authorities were aimed at remedying the violations of Article 6 § 1 found in the present case. It further notes that the applicants received a total amount of EUR 920 under the Court’s legal aid scheme and that they were only partly successful with their application. Making an assessment on an equitable basis, the Court awards the applicants jointly EUR 5,000, including value-added tax. C. Default interest 64. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been no violation of Article 8 of the Convention. On the one hand, it could not accept that the interference with the conditions of animal life in the swamp constituted an attack on the private or family life of the applicants. Even assuming that the environment had been damaged by the urban development of the area, the applicants had not shown that the alleged damage to the birds and other protected species living in the swamp was of such a nature as to directly affect their own rights under Article 8. On the other hand, the Court was of the opinion that the disturbances coming from the applicants’ neighbourhood as a result of the urban development of the area (noises, night-lights, etc.) had not reached a sufficient degree of seriousness to be taken into account for the purposes of Article 8 of the Convention. The Court further held that, by failing to enforce two final judicial decisions for more than seven years, the Greek authorities had deprived Article 6 § 1 of the Convention of all useful effect and that there had accordingly been a violation of that provision. The Court also held that there had been a violation of Article 6 § 1 of the Convention on account of the authorities’ failure to deal with the applicants’ complaints within a reasonable time. |
179 | Obligation on authorities to provide adequate protection against domestic violence | RELEVANT LEGAL FRAMEWORK DOMESTIC LAW 66. The relevant domestic law as regards the absence of an accused in criminal proceedings from the sessions of an appeal panel is set out in the case of Arps v. Croatia, no. 23444/12, §§ 12-15, 25 October 2016. 67. The relevant provisions of the Criminal Code ( Kazneni zakon, Official Gazette nos. 110/1997 with subsequent amendments), as in force at the material time, read as follows: Neglect or abuse of a child or a minor Article 213 “(1) A parent, adoptive parent, guardian or other individual who grossly neglects his or her duties to care for or raise a child or minor shall be punished by imprisonment for six months to five years. (2) The penalty referred to in paragraph 1 of this Article shall be imposed on a parent, adoptive parent, guardian or other individual who abuses a child or minor; [who] forces [the child] to perform work unsuitable for his or her age, or to work excessively, or to beg; [who], out of greed, induces [the child] to behave in a manner harmful to his or her development; or [who] puts [the child] in danger by [engaging in] dangerous activities or in some other way.” Domestic violence Article 215a “A family member who, through violence, ill-treatment or particularly contemptuous behaviour, places another family member in a humiliating position shall be sentenced to imprisonment for a term of between six months and five years.” 68. The Protection against Domestic Violence Act ( Zakon o zaštiti od nasilja u obitelji, Official Gazette no. 116/2013), inter alia, defines the minor offence of domestic violence and provides sanctions which may be imposed on those convicted of that offence. The relevant provisions read: Section 4 “Domestic violence is: - every application of physical or psychological force against a person’s integrity; - all conduct by a family member capable of causing fear of physical or psychological pain; - causing [a person to] feel scared or personally threatened, or [causing] injury to a person’s dignity; - physical assault, irrespective of whether it results in bodily injury; - verbal assaults, insults, swearing, name-calling or other forms of serious harassment; - sexual harassment; - stalking and all other forms of harassment; - unlawfully isolating [a person] or restricting a person’s freedom of movement or communication with third parties; - damaging or destroying assets or attempting to do this.” Section 18 “(1) A family member who commits [an act of] domestic violence under section 4 of this Act shall be fined between 1,000 and 10,000 Croatian kunas (HRK) for a minor offence or punished by imprisonment for up to 60 days. (2) A family member who repeats [an act of] domestic violence shall be fined at least HRK 5,000 for a minor offence or punished by imprisonment for at least 15 days. (3) An adult family member who commits [an act of] domestic violence in the presence of a child or a minor shall be fined at least HRK 6,000 for a minor offence or punished by imprisonment for at least 30 days. (4) An adult family member who repeats [an act of] domestic violence under subsection 3 of this section shall be fined at least HRK 7,000 for a minor offence or punished by imprisonment for at least 40 days. (5) When violence under subsection 3 of this section is committed to the detriment of a child or a minor, the perpetrator shall be fined at least HRK 7,000 for a minor offence or punished by imprisonment of at least 40 days.” 69. In its judgment III Kr 50/11-4 of 17 January 2013, the Supreme Court held as follows: “The convicted person is incorrect in claiming that the conditions for instituting criminal proceedings against him had not been met because he had previously been convicted for the same event in minor-offence proceedings... Contrary to what is claimed by the convicted person, it is necessary to stress that he was found guilty of a continuous criminal offence of violent behaviour in the family as defined in Article 215a of the Criminal Code, the acts of which had been performed a number of times in that he verbally attacked the victim, as well as physically in the period between 26 March 2002 and 25 September 2004, so that he would hit her with his hands all over her body and head, push her [so that] she fell over, and she was otherwise disabled and walking with crutches, and two times he hit her with a chair on her head and body. In connection with such incrimination, it is necessary to stress that violent behaviour of the convicted person has been performed throughout the criminalizing period and even outside the three instances in relation to which medical documentation has been obtained. ... ...in relation to the event which represents the very end of the continuous criminal offence and relates to 25 September 2004, medical documentation has been obtained and the convicted person was found guilty of domestic violence in minor-offence proceedings... In the Supreme Court’s opinion, the present case concerns a continuous criminal offence as defined in Article 215a of the Criminal Code, which consists of several instances of domestic violence to which the victim had been exposed almost on a daily basis, thereby putting her in a humiliating position; therefore the K. Minor Offence Court’s judgment relating to the event of 25 September 2004 by no means represents a court decision on the same matter which the criminal courts were called upon to decide in regular criminal proceedings. This is because the minor offence proceedings established the convicted person’s guilt only in relation to one single act of domestic violence committed only on 24 September 2004, whereas the remaining acts [of domestic violence] and the forms [thereof] ... are not even mentioned in the description of the minor offence, so already for that reasons this [case] cannot concern a res judicata, as wrongly argued by the convicted person...” EUROPEAN UNION LAW 70. The relevant case-law of the Court of Justice of the European Union (CJEU) has been cited in Bajčić v. Croatia, no. 67334/13, § 15, 8 October 2020. See also CJEU judgment in Joined cases C ‑ 596/16 Enzo di Puma and C ‑ 597/16 Anotnio Zecca adopted on 20 March 2018. INTERNATIONAL LAW 71. The Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (“Istanbul Convention”), which came into force in respect of Croatia on 1 October 2018, insofar as relevant, provides as follows: Article 18 § 1 “Parties shall take the necessary legislative or other measures to protect all victims from any further acts of violence.” Article 45 § 1 “Parties shall take the necessary legislative or other measures to ensure that the offences established in accordance with this Convention are punishable by effective, proportionate and dissuasive sanctions, taking into account their seriousness.” THE LAW ALLEGED VIOLATIONS OF ARTICLE 6 §§ 1 AND 3 (B) AND (C) OF THE CONVENTION 72. The applicant complained that in the proceedings before the County Court he had not had adequate time for the preparation of his defence, and could not defend himself either in person or with the assistance of a lawyer because he had been informed of the session of 16 February 2010 only four days in advance. Also, he had not been given an opportunity to attend that session. He relied on Article 6 §§ 1 and 3 (b) and (c) of the Convention, the relevant part of which reads as follows: “1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ... 3. Everyone charged with a criminal offence has the following minimum rights: ... (b) to have adequate time and facilities for the preparation of his defence; (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; ...” Admissibility 73. The Court notes that this part of the application is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible. MeritsArticle 6 § 3(b) and (c) – legal representation in the appeal proceedings and adequate time and facilities to prepare a defence Article 6 § 3(b) and (c) – legal representation in the appeal proceedings and adequate time and facilities to prepare a defence Article 6 § 3(b) and (c) – legal representation in the appeal proceedings and adequate time and facilities to prepare a defence 74. The Court considers that the applicant’s complaint under Article 6 § 3 (b) of the Convention is closely related to his complaint concerning his right to be represented by a lawyer at the appeal stage of proceedings. Consequently, the issues of whether his right to adequate time and facilities to prepare his defence and his right to be represented by a lawyer were respected need to be examined together. (a) The parties’ arguments 75. The applicant argued that, owing to the brevity of the period between his being informed of the appeal session and that session actually taking place, he had not been able to hire a lawyer and adequately prepare his defence. 76. The Government maintained that the applicant had had sufficient time and facilities to prepare his defence in the appeal proceedings, since his chosen lawyer, E.H., had received the first-instance judgment on 13 August 2009 and both the applicant and E.H. had lodged appeals against that judgment. Once the applicant had revoked the power of attorney in respect of E.H., the national courts had appointed a State-funded lawyer for the applicant and had also granted his requests to contact other lawyers. When the Supreme Court had quashed the second-instance judgment and remitted the case to the appeal court, the appeal court had had to decide on the same appeals it had already examined, that is to say the applicant’s and E.H.’s appeals lodged in August 2009. 77. The national courts had also granted the applicant’s repeated requests to contact other lawyers and had allowed three lawyers to visit him in prison. The applicant was responsible for the fact that he had not hired any other lawyer. 78. The applicant had been informed of the appeal court’s session four days in advance, and given the fact that the appeal court had had to decide on the appeals lodged in August 2009, that period could not be regarded as insufficient for him to prepare his defence. Moreover, when the applicant had asked for the appeal court’s session to be adjourned for seven days, he had not explained what the purpose of that adjournment was. (b) The Court’s assessment (i) General principles 79. The right to a fair trial under Article 6 § 1 is an unqualified right. However, what constitutes a fair trial cannot be the subject of a single unvarying rule, but must depend on the circumstances of the particular case. The Court’s primary concern under Article 6 § 1 is to evaluate the overall fairness of the criminal proceedings (see, among many other authorities, Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, § 250, 13 September 2016). 80. Compliance with the requirements of a fair trial must be examined in each case, having regard to the development of the proceedings as a whole, and not on the basis of an isolated consideration of one particular aspect or one particular incident, although it cannot be excluded that a specific factor may be so decisive as to enable the fairness of the trial to be assessed at an earlier stage in the proceedings. In evaluating the overall fairness of the proceedings, the Court will take into account, if appropriate, the minimum rights listed in Article 6 § 3, which exemplify the requirements of a fair trial in respect of typical procedural situations which arise in criminal cases. They can therefore be viewed as specific aspects of the concept of a fair trial in criminal proceedings in Article 6 § 1. However, those minimum rights are not aims in themselves: their intrinsic aim is always to contribute to ensuring the fairness of the criminal proceedings as a whole (ibid., § 251). 81. Article 6 § 3 ( b) guarantees the accused “adequate time and facilities for the preparation of his defence”, and therefore implies that the substantive defence activity on his behalf may comprise everything which is “necessary” to prepare the main trial. The accused must have the opportunity to organise his defence in an appropriate way and without restriction as to the ability to put all relevant defence arguments before the trial court and thus to influence the outcome of the proceedings (see Mayzit v. Russia, no. 63378/00, § 78, 20 January 2005; Moiseyev v. Russia, no. 62936/00, § 220, 9 October 2008; Gregačević v. Croatia, no. 58331/09, § 51, 10 July 2012; and Chorniy v. Ukraine, no. 35227/06, § 37, 16 May 2013). 82. When assessing whether the accused had adequate time for the preparation of his defence, particular regard has to be had to the nature of the proceedings, as well as the complexity of the case and the stage of the proceedings (see Gregačević, cited above, § 51, and Albert and Le Compte v. Belgium, 10 February 1983, § 41, Series A no. 58). In this connection, the Court notes that the guarantees of Article 6 § 3 (b) go beyond trials, and extend to all stages of court proceedings (see D.M.T. and D.K.I. v. Bulgaria, no. 29476/06, § 81, 24 July 2012, and Chorniy, cited above, § 38). 83. As regards the right to a lawyer, the Court reiterates that the right of everyone charged with a criminal offence to be effectively defended by a lawyer, assigned officially if need be, as guaranteed by Article 6 § 3 (c), is one of the fundamental features of a fair trial (see Salduz v. Turkey [GC], no. 36391/02, § 51, ECHR 2008; Dvorski v. Croatia [GC], no. 25703/11, § 76, ECHR 2015; and Simeonovi v. Bulgaria [GC], no. 21980/04, § 112, 12 May 2017 (extracts)). However, assigning counsel does not in itself ensure the effectiveness of the assistance counsel may provide to his client. Nevertheless, a State cannot be held responsible for every shortcoming on the part of a lawyer appointed for legal-aid purposes. It follows from the independence of the legal profession from the State that the conduct of the defence is essentially a matter between a defendant and his counsel, whether appointed under a legal-aid scheme or privately financed. The competent national authorities are required under Article 6 § 3 (c) to intervene only if a failure by legal-aid counsel to provide effective legal assistance is manifest or sufficiently brought to their attention in another way (see Czekalla v. Portugal, no. 38830/97, § 60, ECHR 2002-VIII, and Orlov v. Russia, no. 29652/04, § 108, 21 June 2011). (ii) Application of these principles to the present case 84. The applicant’s complaints concern the appeal stage of the proceedings and refer to his alleged inability to prepare his defence and hire a lawyer in the short period between his being informed of the appeal court’s session and the session actually taking place. The Court notes that the first-instance judgment was issued on 14 July 2009 (see paragraph 33 above) and it was served on E.H., the defence counsel chosen by the applicant (contrast with Chorniy, cited above, § 41), on 13 August 2009. Both the applicant and E.H. lodged appeals (see paragraphs 36 and 40 above). The applicant also revoked his power of attorney in respect of E.H. Subsequently, he made several requests to contact other lawyers. 85. The Court notes that the national courts appointed a State-funded lawyer, S.A., for the applicant on 9 September 2009 (see paragraph 42 above), after the applicant had revoked the power of attorney in respect of E.H. The applicant complained that he did not trust S.A. and asked the court to allow him to contact other lawyers (see paragraph 43 above). His request was granted – he contacted several other lawyers and three lawyers visited him in prison (see paragraphs 44, 47 and 48 above). However, the applicant did not hire another lawyer. 86. On 2 November 2009 the appeal court dismissed the appeals lodged by the applicant and E.H. and upheld the first-instance judgment (see paragraph 51 above). On 20 January 2010 the Supreme Court quashed the appeal court’s judgment and remitted the case. It is to be stressed that the appeal court was to decide on the appeals lodged by the applicant and E.H. on 19 and 31 August 2009 respectively, and that at the time when the Supreme Court remitted the case to the appeal court the applicant was not allowed to lodge further appeals or supplement his previous appeals. There is no indication, and the applicant has never made any allegations to that effect, that he did not have sufficient time and facilities to prepare his appeal, or that he did not have the services of a lawyer in connection with the appeal, or that he was hindered in preparing his appeal in any other respect (compare Chorniy, cited above, § 40). 87. The Court would also stress that during the entire trial before the first-instance court, the applicant was represented by E.H., a lawyer of his own choosing, and had ample time and opportunity to confer with that lawyer and prepare his defence (contrast Falcão dos Santos v. Portugal, no. 50002/08, § 44, 3 July 2012). There is also no indication that the applicant was limited in terms of how many meetings he had with his chosen lawyer E.H. at any stage of the proceedings or how long those meetings were (compare Lambin v. Russia, no. 12668/08, § 45, 21 November 2017). 88. Therefore, at the stage when the Supreme Court remitted the case to the appeal court for fresh examination of the applicant’s and E.H.’s appeals (see paragraph 54 above), the applicant had already benefitted from the services of his chosen lawyer and had had sufficient time to prepare his defence. In this connection, the Court notes that the applicant, with the assistance of his lawyer, put forward his defence before the investigating judge (see paragraph 19 above), at the trial before the first-instance court (see paragraph 30 above), and on three occasions submitted an additional written defence arguments (see paragraphs 25, 27 and 28 above). The national courts gave the applicant sufficient opportunity to hire another lawyer, but he failed to do so. 89. In his oral and written defence, as well as in his appeals, the applicant analysed the case in detail and referred extensively to all the main items of evidence, including expert opinions and witness testimonies (see paragraphs 19, 25, 27-30 and 36 above; also compare Lambin, cited above, § 44). 90. Given the particular circumstances of the case, the Court considers that the brevity of the period between the applicant being informed of the appeal court session and that session actually taking place did not restrict his right to adequate time and facilities to prepare his defence or his right to be legally represented in the criminal proceedings against him to such an extent that it could be said that he did not have the benefit of a fair trial. 91. There has accordingly been no violation of Article 6 §§ 1 and 3 (b) and (c) of the Convention in that respect. Article 6 § 3 (c) – the applicant’s absence from the session before the appeal court (a) The parties’ arguments 92. The applicant argued that his absence from the appeal court’s session held on 16 February 2010 was in breach of his right to defend himself in person. 93. The Government argued that under the relevant domestic law the appellate court had had the discretion to decide whether to allow the defendant to attend the session of the appeal panel. Furthermore, since the prosecution had not appealed against the first-instance judgment and had not been summoned to the session of the appeal panel, the Government were of the opinion that the applicant had not been placed in a disadvantageous position vis-à-vis the prosecution. Moreover, the applicant’s appeal had been very detailed and had mainly concerned the assessment of the facts. Given all these circumstances, the County Court had had no reason to hear him in person. (b) The Court’s assessment 94. The Court notes that it has already found a violation of Article 6 §§ 1 and 3 (c) of the Convention in cases against Croatia raising a similar issue to that in the present case (see Zahirović v. Croatia, no. 58590/11, §§ 58-64, 25 April 2013; Lonić v. Croatia, no. 8067/12, §§ 94-102, 4 December 2014; and Arps v. Croatia, no. 23444/12, §§ 24-29, 25 October 2016). 95. In the above-cited cases, the Court addressed the same arguments as those put forward by the Government in the present case. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. 96. There has accordingly been a violation of Article 6 §§ 1 and 3 (c) of the Convention. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL No. 7 TO THE CONVENTION 97. The applicant complained that he had been tried twice for the same offence. He relied on Article 4 of Protocol No. 7 to the Convention, which reads as follows: “1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State. 2. The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case. 3. No derogation from this Article shall be made under Article 15 of the Convention.” Admissibility 98. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible. MeritsThe parties’ arguments The parties’ arguments The parties’ arguments 99. The applicant maintained that he had been punished twice for the same offence by two judgments of the Zagreb Minor Offences Court (see paragraphs 9 and 13 above) and the judgment of the Municipal Court of 14 July 2009 (see paragraph 33 above). He argued that the minor-offence proceedings and the proceedings on indictment had had the same purpose, because the minor offence under section 4 of the Protection against Domestic Violence Act and the criminal offences under Article 215a of the Criminal Code both concerned violent behaviour within the family covering the same forms of violence and harassment. The purpose of both offences was to establish that violent behaviour was unacceptable, unlawful and banned. 100. The applicant also contended that the evidence had been presented and assessed separately in each set of proceedings, and that the sanctions imposed on him in the minor-offence proceedings had not been deducted from the penalty ultimately imposed on him in the proceedings on indictment. 101. The Government concentrated their arguments on the applicant’s conviction in the minor-offence proceedings of 17 November 2008 (see paragraph 9 above). They maintained that his conviction in the proceedings on indictment for four counts of domestic violence and one count of child neglect and abuse over a period of almost three years (from 2005 to 3 November 2008) could not be seen as being the same as his conviction in minor-offence proceedings for one count of domestic violence in respect of the events of 3 and 4 November 2008. In the proceedings on indictment, the applicant had been convicted of numerous violent acts consisting of insults, threats and physical assaults committed over a longer period of time in respect of four members of his family, whereas in the minor-offence proceedings he had been convicted of a single offence committed in respect of two members of his family over two consecutive days. 102. The Government stressed that the factual background of the event of 3 November 2008 in respect of which the applicant had been convicted in the proceedings on indictment was not the same as the factual background in respect of which he had been convicted in the minor-offence proceedings. In the latter scenario, the applicant had been convicted because on 3 November 2008, after verbally insulting his former spouse and his daughter M.G., he had slapped his former spouse several times on her left cheek and ear and thus caused her less serious bodily injury (contusions to the head and bleeding from the ear). The applicant would have been convicted in the proceedings on indictment, irrespective of the events of 3 November 2008 –the verbal assault on his daughter M.G. and the verbal and physical assault on his former spouse Mi.G. – because it was not necessary to specify each and every verbal or physical assault on a family member to prove the existence of the criminal offence of domestic violence. 103. The Government contended that the two sets of proceedings had been closely related in nature and time and had amounted to a single complementary response by the State to the applicant’s unlawful conduct. The purpose of the minor-offence proceedings had been to punish each incident separately, whereas the purpose of the criminal proceedings on indictment had been to protect family members from the violence to which they had been exposed over a longer period. 104. The Government pointed out that the same documentary evidence had been used in both sets of proceedings, whereas the trial court in the proceedings on indictment had been obliged to hear all witnesses in person, and could not use the witness statements which had been given in the minor-offence proceedings. Lastly, the applicant’s sentence from the minor ‑ offence proceedings had been deducted from his sentence in the proceedings on indictment. The Court’s assessment (a) Whether all the proceedings concerned were criminal in nature 105. In comparable cases against Croatia involving minor offences, the Court has held, on the basis of the “ Engel criteria” (see Engel and Others v. the Netherlands, 8 June 1976, Series A no. 22), that minor-offence proceedings were “criminal” in nature for the purposes of Article 4 of Protocol No. 7 (see Bajčić v. Croatia, no. 67334/13, §§ 27-28, 8 October 2020; and, in the context of an Article 6 complaint, Marčan v. Croatia, no. 40820/12, § 33, 10 July 2014). 106. Taking into consideration the nature of the offence in question, together with the severity of the penalty, the Court sees no reason to depart from the conclusion reached in those previous cases and holds that both sets of proceedings in the present case concerned a “criminal” matter within the autonomous meaning of Article 4 of Protocol No. 7. (b) Whether the offences for which the applicant was prosecuted were the same ( idem ) 107. The notion of the “same offence” – the idem element of the ne bis in idem principle in Article 4 of Protocol No. 7 – was clarified in Sergey Zolotukhin v. Russia ([GC], no. 14939/03, §§ 78-84, ECHR 2009). Following the approach adopted in that judgment, it is clear that the determination as to whether the offences in question were the same ( idem ) depends on a facts-based assessment (ibid., § 84), rather than, for example, a formal assessment consisting in comparing the “essential elements” of the offences. The prohibition in Article 4 of Protocol No. 7 to the Convention concerns the prosecution or trial of a second “offence” in so far as the latter arises from identical facts or facts which are substantially the same (ibid., § 82). In the Court’s view, statements of fact concerning both the offence for which the applicant has already been tried and the offence of which he or she stands accused are an appropriate starting-point for its determination of the issue whether the facts in both proceedings were identical or substantially the same (see, in this connection, Sergey Zolotukhin, cited above, § 83). The Court’s inquiry should therefore focus on those facts which constitute a set of concrete factual circumstances involving the same defendant and inextricably linked together in time and space, the existence of which must be demonstrated in order to secure a conviction or institute criminal proceedings (ibid., § 84). 108. In the present case, the applicant was first convicted in minor-offence proceedings in respect of two separate incidents – by judgments of 16 January 2008 in respect of an incident which occurred on 10 January 2008 (see paragraph 9 above), and then by the judgment of 17 November 2008 for the incident of 3 November 2008 (see paragraph 13 above). 109. Subsequently, in the proceedings on indictment, the applicant was charged with and, on 14 July 2009 found guilty of, four counts of domestic violence committed against his family members in the period between February 2005 and November 2008. The Court notes that, while the applicant’s conviction in the proceedings on indictment did not expressly refer to any specific event of 10 January 2008, it clearly encompassed the period between February 2005 and November 2008, thereby implicitly covering all the incidents that might have happened during that time. 110. On the other hand, the criminal court judgment expressly referred to the event of 3 November 2008 in respect of which the applicant had been found guilty in the minor-offence proceedings on 17 November 2008 (see paragraph 13 above). Both the decision issued in the minor-offence proceedings of 17 November 2008 and the judgment issued in the proceedings on indictment of 14 July 2009 refer to the same words spoken by the applicant to his daughter and his former spouse, and to the applicant’s physical assault on the latter. In both decisions, those events are described in almost the same terms, and they clearly refer to the same events of 3 November 2008. 111. At the same time, the Court notes that the indictment in the criminal proceedings contained a number of additional facts not encompassed by the decision in the impugned set of minor-offence proceedings, namely acts of domestic violence towards the applicant’s younger daughter Z.G. and his son H.G., as well as, most notably, that the applicant’s violent behaviour occurred over a longer period of time (see paragraph 23 above). The proceedings on indictment therefore concerned a criminal offence of domestic violence as defined in Article 215a of the Criminal Code (see paragraph 69 above). In fact, the criminal conviction enumerated several examples of the applicant’s violent behaviour towards his family members and expressly stated that such conduct culminated in the incident of 3 November 2008 (see paragraph 33 above). It transpires that the inclusion of the incident of 3 November 2008 served to show only one of the instances – notably, the most violent one – of the applicant’s reprehensible behaviour which had persisted over a period of some three years and had caused his family members fear, anxiety and risk for their life (see paragraph 33 above). In other words, the domestic courts sought to show that the applicant’s conduct, which had been sanctioned on a number of occasions in minor-offence proceedings, eventually reached the threshold of seriousness so as to be considered and punished under criminal law. 112. The Court notes that the facts for which the applicant had already been convicted in the two impugned sets of minor-offence proceedings formed an integral part of the subsequent proceedings on indictment. The Court thus accepts that the facts in the subsequent criminal proceedings had in part been identical to the facts in the two sets of minor-offence proceedings complained of. In view of this, any possible arbitrary treatment by the judicial system in breach of the ne bis in idem principle in those proceedings must be eliminated. The Court will therefore proceed to examine whether there had been a duplication ( bis ) of the proceedings in breach of Article 4 of Protocol No. 7. (c) Whether there was duplication of proceedings ( bis ) 113. As the Grand Chamber explained in A and B v. Norway ([GC], nos. 24130/11 and 29758/11, § 130, 15 November 2016), Article 4 of Protocol No. 7 does not preclude the conduct of dual proceedings, provided that certain conditions are fulfilled. In particular, for the Court to be satisfied that there is no duplication of trial or punishment ( bis ) as proscribed by Article 4 of Protocol No. 7, the respondent State must demonstrate convincingly that the dual proceedings in question were “sufficiently closely connected in substance and in time”. In other words, it must be shown that they were combined in an integrated manner so as to form a coherent whole. This implies not only that the purposes pursued and the means used to achieve them should in essence be complementary and linked in time, but also that the possible consequences of organising the legal treatment of the conduct concerned in such a manner should be proportionate and foreseeable for the persons affected (ibid., § 130). As regards the conditions to be satisfied in order for dual criminal and administrative proceedings to be regarded as sufficiently connected in substance and in time and thus compatible with the bis criterion in Article 4 of Protocol No. 7, the material factors for determining whether there was a sufficiently close connection in substance include: – whether the different proceedings pursue complementary purposes and thus addressed, not only in abstracto but also in concreto, different aspects of the social misconduct involved; – whether the duality of proceedings concerned was a foreseeable consequence, both in law and in practice, of the same impugned conduct ( idem ); – whether the relevant sets of proceedings were conducted in such a manner as to avoid as far as possible any additional disadvantages resulting from duplication of proceedings and in particular duplication in the collection as well as the assessment of the evidence, notably through adequate interaction between the various competent authorities to ensure that the establishment of the facts in one set of proceedings is replicated in the other; – and, above all, whether the sanction imposed in the proceedings which became final first was taken into account in those which became final last, so as to prevent the individual concerned from being in the end made to bear an excessive burden; this latter risk is least likely to be present where there is in place an offsetting mechanism designed to ensure that the overall amount of any penalties imposed is proportionate (ibid., §§ 131-32). 114. At the outset the Court reiterates that the States are under a positive obligation under Articles 3 and 8 of the Convention to provide and maintain an adequate legal framework affording protection against acts of domestic violence (see Ž.B. v. Croatia, no. 47666/13, §§ 47 and 49, 11 July 2017). With regard to the adequacy of the legal framework for the protection from domestic violence, the Court notes that there is a common understanding in the relevant international materials that comprehensive legal and other measures are necessary to provide victims of domestic violence with effective protection (see, for example, paragraph 71 above). These measures include, in particular, the criminalisation of acts of violence within the family by providing effective, proportionate and dissuasive sanctions (ibid., § 51). 115. The Court further notes that the Contracting States have different approaches to the criminalisation of domestic violence in their legal systems. It has already held that the legislative solutions provided for under the Criminal Code and the Minor Offences Act applicable at the relevant time in Croatia did not appear to be contrary to the relevant international standards (see Ž.B., cited above, §§ 38-39 and 56). The Court further reiterates that it was for the domestic authorities to assess the findings of fact and to decide, in accordance with the domestic law as interpreted by the national courts, how the applicant’s conduct ought to be classified and prosecuted (see Rohlena v. the Czech Republic, [GC], no. 59552/08, § 55, ECHR 2015). 116. In that connection the Court observes that domestic violence is rarely a one-off incident; it usually encompasses cumulative and interlinked physical, psychological, sexual, emotional, verbal and financial abuse of a close family member or partner transcending circumstances of an individual case (see Volodina v. Russia, no. 41261/17, § 71, 9 July 2019). The recurrence of successive episodes of violence within personal relationships or closed circuits represents the particular context and dynamics of domestic violence (see ibid., § 86; and Kurt v. Austria [GC], no. 62903/15, § 164, 15 June 2021). Thus the Court has already recognised that domestic violence could be understood as a particular form of a continuous offence characterised by an ongoing pattern of behaviour (see Rohlena, cited above, § 72; and Valiulienė v. Lithuania, no. 33234/07, § 68, 26 March 2013) in which each individual incident forms a building block of a wider pattern. 117. In view of the above, the Court notes that the Croatian legislature at the material time opted to regulate the socially undesirable conduct of violent behaviour towards family members as an integrated dual process. One single act of domestic violence, which did not amount to some other criminal offence punishable under the Criminal Code, was to be sanctioned as a minor offence of domestic violence. Such a minor offence was predominantly incident-focused and covered a wider range of behaviours outside the boundaries of traditional criminal law. Where there was a pattern of such behaviour, the Criminal Code at the material time provided an additional option of bringing charges for the criminal offence of domestic violence as defined in Article 215a of the Criminal Code. The Supreme Court of Croatia has interpreted Article 215a of the Criminal Code, as in force at the material time, in similar circumstances to the present case, as a continuous offence seeking to address repeated and continuous behaviour in relationships (see paragraph 69 above; see also Rohlena, cited above, § 72). 118. The Court notes that the purpose of the minor-offence proceedings was to provide a prompt reaction to a particular incident of domestic violence that in itself did not amount to any criminal offence under the Criminal Code in order to timely and effectively prevent further escalation of violence within the family and to protect the victim. This is what has been done in the applicant’s case on a number of separate occasions (see paragraphs 6, 7, 8, 9 and 13 above). Once the applicant’s unlawful behaviour reached a certain level of severity, the proceedings on indictment were initiated against him, aimed at addressing an ongoing situation of violence in a comprehensive manner (see, mutatis mutandis, A. v. Croatia, no. 55164/08, § 76, 14 October 2010). The individual incidents sanctioned in two sets of minor-offence proceedings complained of, taken together with other incidents, demonstrated a pattern of behaviour and contributed to the assessment of the seriousness of the applicant’s criminal conduct and only in their entirety did they reflect the cumulative impact on his victims. In these circumstances the Court has no cause to call into question the reasons for such partial duplication of the proceedings, which pursued the general interest of promptly and adequately reacting to domestic violence, that has particularly damaging effects on the victim, the family and society as a whole by gradually intensifying the State’s response. The Court notes that such dual proceedings represented complementary response to socially offensive conducts of domestic violence (compare and contrast Nodet v. France, no. 47342/14, § 48, 6 June 2019). 119. The Court would further stress that duplication of proceedings and penalties may be allowed only under conditions provided for and exhaustively defined by clear and precise rules allowing individuals to predict which acts or omissions were liable to be subject to such a duplication of proceedings and penalties, thereby ensuring that the right guaranteed by Article 4 of Protocol No. 7 is not called into question as such and legal certainty is preserved. As regards the question of whether duality of the proceedings had been foreseeable for the applicant, the Court notes that, having behaved violently towards close family members on a number of occasions, the applicant should have been aware that his conduct could have entailed consequences such as the institution of minor-offence proceedings for a particular individual incident under the Protection against Domestic Violence Act and criminal proceedings for continuous and repeated behaviour of domestic violence criminalised under the Criminal Code. 120. As to the manner of conducting the proceedings, the Court observes that the criminal court took note of all the previous minor-offence judgments against the applicant (see paragraph 33 above) and used certain documentary evidence from those proceedings (for example, the same record of examination of blood alcohol dated 4 November 2008; see paragraphs 13 and 33 above). The fact that the criminal court decided again to hear certain witnesses, such as Mi.G. and M.G. at the trial may be regarded as an inherent feature of proceedings on indictment and a requirement safeguarding the rights of the accused under Article 6 of the Convention. The Court therefore concludes that the interaction and coordination between the two courts was adequate and that the two sets of proceedings formed a coherent whole. (see, a contrario, Kapetanios and Others v. Greece, nos. 3453/12 and 2 others, §§ 65-74, 30 April 2015, where the applicants had first been acquitted in criminal proceedings, and later on received severe administrative fines for the same conduct). Consequently, the applicant has not suffered a disadvantage associated with the duplication of proceedings, beyond what was strictly necessary. 121. As regards the sanctions imposed, the Court firstly notes that each of the applicant’s minor-offence convictions took into account the penalty imposed on him in the previous minor-offence proceedings (see paragraphs 7, 9 and 13 above). Subsequently, the criminal court expressly acknowledged that the applicant had already been punished in five sets of minor offence proceedings. It also deducted from his sentence the period which the applicant had spent in detention on the basis of the two minor ‑ offence convictions complained of, dated 10 January 2008 and 17 November 2008 (see paragraph 13 above). Consequently the domestic courts applied the principle of deduction and ensured that the overall amount of penalties imposed on the applicant was proportionate to the seriousness of the offence concerned (compare A and B, cited above, § 144; and contrast Glantz v. Finland, no. 37394/11, § 61, 20 May 2014, and Nykänen v. Finland, no. 11828/11, § 51, 20 May 2014). It cannot therefore be said that the applicant was made to bear an excessive burden (see the relevant criteria set out in A and B v. Norway, cited at paragraph 113 above). 122. Finally, turning to the connection in time between the various sets of proceedings, the Court notes that the time element in the specific context of domestic violence bearing in mind its specific dynamics (see paragraph 116 above) takes on a particular meaning. What is important in this context is for the domestic criminal-law system to effectively deal with instances of domestic violence, individually and in their aggregate, by producing adequate deterrent effects capable of ensuring the effective prevention of unlawful acts (see, for example, Bălşan v. Romania, no. 49645/09, §§ 71 and 87, 23 May 2017; see also paragraph 71 above). In the present case, as already stated, the authorities intervened, when informed, each time there had been an isolated incident of domestic violence in the family in order to provide immediate relief to its victims (see paragraphs 6, 7, 8, 9 and 13 above). After a number of incidents occurring relatively close together in time, namely over a period of some three years, reached a certain degree of severity and “culminated” (as the domestic criminal court stated; see paragraph 33 above) in the event of 3 November 2008, the authorities initiated the last set of minor-offence proceedings, and, about a month thereafter, the proceedings on indictment for the continuous offence of domestic violence under Article 215a of the Criminal Code (see paragraphs 11 and 17 above, see also Rohlena, cited above, §§ 20, 33, 61 and 72). In fact, the criminal investigation started on 3 December 2009, after the Zagreb Minor Offence Court had found the applicant guilty of domestic violence in respect of the last incident (see paragraph 13 above) and he was indicted on 26 January 2009, two days before the judgment in the minor offence proceedings had become final (see paragraphs 17 and 23 above). Any disadvantage that might have ensued for the applicant from conducting these two proceedings in parallel for such a short period of time was thus negligible. The criminal proceedings thereafter continued for eight months at first instance and another two and half years on appeal and before the Constitutional Court. Thus, the Court is satisfied that the various proceedings were sufficiently connected in time so that the subsequent institution of criminal proceedings could not be seen as abusive (see, mutatis mutandis, A and B v. Norway, cited above, § 151; and contrast Johannesson and Others v. Iceland, no. 22007/11, § 54, 18 May 2017; and Kapetanios, cited above, § 67). 123. In conclusion, in the Court’s opinion, the aims of punishment, whereby different aspects of the same conduct are addressed, ought to be considered as a whole and have in the present case been realised through two foreseeable complementary types of proceedings, which were sufficiently connected in substance and in time, as required by the Court’s case-law, to be considered to form part of an integral scheme of sanctions under Croatian law for offences of domestic violence. There was an adequate level of interaction between the courts in those proceedings, and the punishments imposed, taken together, did not make the applicant bear an excessive burden, but were proportionate to the seriousness of the offence. In view of the foregoing, the Court finds no abuse of the State’s right to impose a punishment ( jus puniendi ), nor can it conclude that the applicant suffered any disproportionate prejudice resulting from the duplication of proceedings and penalties when criminal proceedings for a continuous offence of domestic violence were conducted following five previous convictions in the minor-offence proceedings for individual acts which formed an integral part of the pattern of the applicant’s behaviour (see, a contrario, Kapetanios and Others, cited above, §§ 65-74; see also the relevant CJEU case-law cited in paragraph 70 above). Rather, those proceedings and penalties formed a coherent and proportionate whole, which enabled punishing both the individual acts committed by the applicant and his pattern of behaviour in an effective, proportionate and dissuasive manner (see, mutatis mutandis, A and B v. Norway, cited above, §§ 112, 130 and 147; and Bajčić, cited above, § 46). 124. It follows that there has been no violation of Article 4 of Protocol No. 7 to the Convention. APPLICATION OF ARTICLE 41 OF THE CONVENTION 125. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” Damage 126. The claimed 856,000 Croatian kunas (HRK; approximately 114,130 euros (EUR)) in respect of pecuniary damage on account of his loss of salary during the period when he had been detained and serving his prison term, loss of profit and not maintaining his house. He also claimed compensation for non-pecuniary damage in the amount of HRK 700,000 (approximately EUR 93,300). 127. The Government deemed these claims excessive, unfounded and unsubstantiated. 128. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it finds that the applicants must have suffered non-pecuniary damage as a result of the violation of Article 6 §§ 1 and 3 (c) of the Convention found, which cannot be compensated for solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards him EUR 1,500 under this head, plus any tax that may be chargeable to him. Costs and expenses 129. The applicant also claimed HRK 10,000 (approximately EUR 1,360) in respect of costs and expenses incurred before the Court. 130. The Government deemed that claim excessive, unfounded and unsubstantiated. 131. The Court observes that the applicant failed to comply with the requirements set out in Rule 60 § 2 of the Rules of Court in that he did not submit itemised particulars of his claim for costs and expenses or any relevant supporting documents, even though he was invited to do so. In these circumstances, the Court makes no award under this head (Rule 60 § 3). Default interest 132. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been no violation of Article 4 (right not to be tried or punished twice) of Protocol No. 7 to the Convention in respect of the applicant. Noting, in particular, that the two sets of proceedings in the applicant’s case had been part of an integrated and coherent approach to domestic violence under Croatian law, it found that such an integrated system had allowed the applicant’s punishment for individual acts of violence via a less severe response in the minor-offence proceedings, followed by a more serious criminal response for his pattern of behaviour. |
129 | Regulation of marriage | II. RELEVANT DOMESTIC LAW A. Federal Act on International Private Law ( Loi fédérale sur le droit international privé ( LDIP ) du 18 décembre 1987 ) as in force in 2012 Article 17 “ The implementation of provisions of foreign law shall be excluded where the result would be incompatible with Swiss ordre public. ” Article 27 “ 1 The recognition of a foreign decision shall be rejected in Switzerland if it is manifestly incompatible with Swiss ordre public. ” Article 45 “ 1 A marriage validly celebrated abroad shall be recognised in Switzerland. ” B. Swiss Criminal Code Article 187 “ 1 Any person who engages in a sexual act with a child under 16 years of age, or incites a child to commit such an activity, or involves a child in a sexual act, is liable to a custodial sentence not exceeding five years or to a pecuniary penalty.” C. Relevant domestic law with regard to the Dublin Regulation 22. The relevant domestic law is set out in the Court ’ s judgment in the case of Tarakhel v. Switzerland ([GC], no. 29217/12, §§ 22-23 and 26-27, 4 November 2014). 23. The relevant instruments and principles of European Union law are set out in the same judgment (§§ 28-36). 24. In particular, the Court recalls that the Dublin Regulation is applicable to Switzerland under the terms of the association agreement of 26 October 2004 between the Swiss Confederation and the European Community regarding criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in a Member State or in Switzerland (OJ L 53 of 27 February 2008). The Dublin Regulation has since been replaced by Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 (the “Dublin III Regulation”), which is designed to make the Dublin system more effective and to strengthen the legal safeguards for persons subject to the Dublin procedure. 25. The Dublin III Regulation entered into force on 1 January 2014 and was passed into law by the Swiss Federal Council on 7 March 2014. THE LAW I. CHARACTERISATION OF THE APPLICANTS ’ CLAIMS 27. The applicants alleged that the expulsion of the second applicant to Italy in 2012 violated Articles 3 and 8 of the Convention. They alleged that if the second applicant were to be expelled again there would be another violation of Articles 3 and 8. Relying on Article 13 of the Convention, the applicants also claimed that they did not have an effective remedy at national level as the FAC did not take into account their family relationship when upholding the administrative decision not to examine the second applicant ’ s asylum request on the merits. 28. On 1 April 2014, in reply to the Government ’ s request to strike the application out of the list of cases following the FAC ’ s decision of 28 November 2013, the applicants submitted that their application included a complaint about a past violation, not only a prospective one, namely that on 4 September 2012 the second applicant had been expelled to Italy and thus separated from the first applicant. Such forcible separation, which had had serious consequences on the applicants ’ health, in particular the first applicant ’ s, constituted a violation of the applicants ’ rights to respect of their family life ( see paragraph 18 above). On 9 January 2015 the applicants informed the Court that they had been granted asylum in Switzerland by a decision of 17 October 2014 (see paragraph 20 above). On 23 June 2015, referring to their submissions of 1 April 2014, the applicants informed the Court that they wished to maintain their application, considering that as the alleged past violation of their right to respect for family life had neither been acknowledged nor remedied they had not lost victim status even if they had now obtained asylum in Switzerland ( see paragraph 21 above). 29. In the light of this information, the Court considers that the applicants only wished to maintain their application with regard to the alleged past violation of Article 8 relating to the expulsion of the second applicant to Italy on 4 September 2012, which included their initial claims under Article 3, and did not wish to pursue the remaining part. The Court also finds no reasons of a general character, affecting respect for human rights, as defined in the Convention, which require the further examination of the remaining part of the application by virtue of Article 37 § 1 of the Convention in fine (see, for example, Chojak v. Poland, no. 32220/96, Commission decision of 23 April 1998, unreported; Singh and Others v. the United Kingdom (dec.), no. 30024/96, 26 September 2000; and Stamatios Karagiannis v. Greece, no. 27806/02, § 28, 10 February 2005). 30. It follows that the remaining part of the application must be struck out in accordance with Article 37 § 1 (a) of the Convention. II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION ON ACCOUNT OF THE REMOVAL OF THE SECOND APPLICANT TO ITALY 31. Under Article 8 of the Convention the applicants alleged that the removal of the second applicant to Italy on 4 September 2012 had violated their right to respect for their family life. Article 8 reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. ” A. Admissibility 32. The Court notes that the complaint under Article 8 raises issues of fact and law under the Convention, the determination of which requires an examination of the merits. It finds no other grounds for declaring this part of the application inadmissible. It must therefore be declared admissible ( see, mutatis mutandis, A.S. v. Switzerland, no. 39350/13, § 40, 30 June 2015). B. Merits 1. The parties ’ submissions (a) The applicants 33. The applicants stressed that the removal of the second applicant to Italy on 4 September 2012 had violated their right to respect for their family life as a married couple. In their view, in its decisions of 20 March 2012 and 3 May 2012, the FAC had wrongly refused to recognise their married status. In support of this argument, they referred to the FAC ’ s subsequent decision of 28 November 2013, which did recognise that the applicants ’ relationship fell within the definition of “family” for the purposes of domestic law and the Dublin Regulation and should therefore benefit from a joint asylum procedure. (b) The Government 34. The Government considered that at the time of the administrative and judicial decisions leading to the removal of the second applicant to Italy, on 4 September 2012, the applicants could not be considered as legally married. On the one hand, there was no evidence that such marriage had ever been contracted and, on the other hand, there was a compelling interest in not recognising a marriage between an adult and a 14 year old child. 35. The Government also stressed that the reason why the applicants ’ asylum procedures were treated separately was because the first applicant had failed to appeal against the FOM ’ s initial decision not to examine her asylum application on the merits, while the second applicant had appealed. 36. The Government finally recalled that the FAC ultimately did take into account the evolution of the applicant ’ s situation after the lodging of the present request and adapted their decisions accordingly : the applicants were granted refugee status and their religious marriage was duly recognised. 37. Therefore, the Government requested that the Court strike out the application under Article 37 § 1 (c) of the Convention. 2. The Court ’ s assessment 38. The Court recalls that where a Contracting State tolerates the presence of an alien on its territory, thereby allowing him or her to await a decision on an application for a residence permit, an appeal against such a decision or a fresh application for a residence permit, such a Contracting State enables the alien to take part in the host country ’ s society, to form relationships and to create a family there. However, this does not automatically entail that the authorities of the Contracting State concerned are, as a result, under an obligation pursuant to Article 8 of the Convention to allow him or her to settle in their country. In a similar vein, confronting the authorities of the host country with family life as a fait accompli does not entail that those authorities are, as a result, under an obligation pursuant to Article 8 of the Convention to allow an alien to settle in the country. The Court has previously held that, in general, persons in that situation have no entitlement to expect that a right of residence will be conferred upon them ( see Jeunesse v. the Netherlands [GC], no. 12738/10, § 103, 3 October 2014 ). The same applies to cases of asylum seekers whose presence on the territory of a Contracting State is tolerated by the national authorities on their own motion or accepted in compliance with their international obligations ( see A.S. v. Switzerland, no. 39350/13, § 44, 30 June 2015). 39. Like Jeunesse (§ 104) and A.S. v. Switzerland (§ 45), the present case may be distinguished from cases concerning “settled migrants” as this notion has been used in the Court ’ s case-law, namely, persons who have already been formally granted a right of residence in a host country. A subsequent withdrawal of that right, for instance because the person concerned has been convicted of a criminal offence, will constitute an interference with his or her right to respect for private and/or family life within the meaning of Article 8. In such cases, the Court will examine whether the interference is justified under the second paragraph of Article 8. In this connection, it will have regard to the various criteria which it has identified in its case-law in order to determine whether a fair balance has been struck between the grounds underlying the authorities ’ decision to withdraw the right of residence and the Article 8 rights of the individual concerned (ibid., § 45). 40. As the factual and legal situation of a settled migrant and that of an alien seeking admission, whether or not as an asylum seeker, are not the same, the criteria developed in the Court ’ s case-law for assessing whether the withdrawal of a residence permit of a settled migrant is compatible with Article 8 cannot be transposed automatically to the situation of the applicant. Rather, the question to be examined in the present case is whether, having regard to the circumstances as a whole, the Swiss authorities were under a duty pursuant to Article 8 to grant the second applicant a residence permit in Switzerland, whether or not as an asylum seeker, thus enabling him to exercise any family life he might have established on Swiss territory with the first applicant, whom they had decided not to remove to Italy ( see, mutatis mutandis, A.S. v. Switzerland, cited above, § 46 ). The instant case thus concerns not only family life but also immigration lato sensu. For this reason, it is to be seen as one involving an allegation of failure on the part of the respondent State to comply with a positive obligation under Article 8 of the Convention ( see, mutatis mutandis, ibid. , § 46 ). 41. The Court recalls that in a case which concerns family life as well as immigration, the extent of a State ’ s obligations to admit to its territory relatives of persons residing there will vary according to the particular circumstances of the persons involved and the general interest. Factors to be taken into account in this context are the extent to which family life would effectively be ruptured, the extent of the ties in the Contracting State, whether there are insurmountable obstacles in the way of the family living in the country of origin of the alien concerned and whether there are factors of immigration control (for example, a history of breaches of immigration law) or considerations of public order weighing in favour of exclusion ( see Jeunesse, cited above, § 107; A.S. v. Switzerland, cited above, § 47 ). 42. The Court reiterates that the notion of “ family life ” in Article 8 is not confined solely to families based on marriage and may encompass other de facto relationships (see, among many other authorities, Marckx v. Belgium, 13 June 1979, § 31, Series A no. 31; Keegan v. Ireland, 26 May 1994, § 44, Series A no. 290; Kroon and Others v. the Netherlands, 27 October 1994, § 30, Series A no. 297 ‑ C; X, Y and Z v. the United Kingdom, 22 April 1997, § 36, Reports of Judgments and Decisions 1997 ‑ II; and Emonet and Others v. Switzerland, no. 39051/03, § 34, ECHR 2007 ‑ XIV). When deciding whether a relationship can be said to amount to “ family life ”, a number of factors may be relevant, including whether the couple live together, the length of their relationship and whether they have demonstrated their commitment to each other by having children together or by any other means ( see Van der Heijden v. the Netherlands [GC], no. 42857/05, § 50, 3 April 2012). 43. In the present case, the second applicant was removed to Italy on 4 September 2012, while the first applicant was allowed to stay in Switzerland for the duration of her asylum application. Before the FAC, the second applicant argued that he should not be separated from the first applicant as they were religiously married. In its decisions of 20 March 2012 and 3 May 2012, the FAC considered that the applicants ’ religious marriage was invalid under Afghan law and in any case was incompatible with Swiss ordre public due to the first applicant ’ s young age ( see paragraphs 10 and 11 above). 44. The Court does not see any reason to depart from the findings of the FAC in this respect. Article 8 of the Convention cannot be interpreted as imposing on any State party to the Convention an obligation to recognise a marriage, religious or otherwise, contracted by a 14 year old child. Nor can such obligation be derived from Article 12 of the Convention, which reads as follows: “ [m]en and women of marriageable age have a right to marry and found a family, according to the national laws governing the existence of this right”. Article 12 expressly provides for regulation of marriage by national law, and given the sensitive moral choices concerned and the importance to be attached to the protection of children and the fostering of secure family environments, this Court must not rush to substitute its own judgment in place of the authorities who are best placed to assess and respond to the needs of society ( see B. and L. v. the United Kingdom, no. 36536/02, § 36, 13 September 2005). At the time of the removal of the second applicant to Italy, the national authorities were therefore justified in considering that the applicants were not married, all the more so, given the fact that the applicants had not yet taken any steps to seek recognition of their religious marriage in Switzerland. 45. In any case, even if the relationship existing between the applicants in 2012 had qualified as “family life” under Article 8 of the Convention (see and contrast with Şerife Yiğit v. Turkey [GC], no. 3976/05, §§ 97 and 98, 2 November 2010), the Court notes that the second applicant returned to Switzerland only three days after having been removed to Italy, and was not expelled thereafter although his stay in Switzerland was illegal. He was de facto allowed to remain in Switzerland and to request a re-examination of his asylum application, which eventually succeeded. The Court also notes that the applicants did not argue that the first applicant, who was not a Swiss resident and was only tolerated on Swiss territory for the purposes of her asylum application, was ever prevented from joining the second applicant after the latter had been expelled to Italy. 46. Bearing in mind the margin of appreciation afforded to States in immigration matters, the Court finds that a fair balance has been struck between the competing interests at stake, namely the personal interests of the applicants in remaining together in Switzerland while waiting for the outcome of the first applicant ’ s asylum application, on the one hand and, on the other, the public order interests of the respondent Government in controlling immigration ( see, mutatis mutandis, A.S. v. Switzerland, § 50). 47. In view of the above considerations, the Court finds that the implementation of the decision to remove the second applicant to Italy did not give rise to a violation of Article 8 of the Convention. | The Court held that there had been no violation of Article 8 (right to respect for private and family life) of the Convention, finding in particular that the Convention could not be interpreted as requiring a State to recognise a marriage entered into by a child of 14. |
413 | Deprivation of liberty / Restriction on the freedom of movement | RELEVANT LEGAL FRAMEWORK AND PRACTICE DOMESTIC LAWDomestic law as in force at the relevant time Domestic law as in force at the relevant time Domestic law as in force at the relevant time 41. The relevant provisions of Act no. LXXX of 2007 on Asylum (“the Asylum Act”) provided as follows: Section 2 “For the purposes of this Act: ... i) “safe third country” means a country in respect of which the asylum authority is satisfied that the applicant is treated according to the following principles: ... ib) in accordance with the Geneva Convention [1], the principle of non-refoulement is respected; ic) the rule of international law prohibiting removal to a country where the person in question would be subjected to conduct defined in Article XIV(2) of the Fundamental Law [that is to say, where would risk to face death penalty, torture or any other form of inhuman treatment or punishment], is respected and applied; and id) the possibility exists to apply for recognition as a refugee; and persons recognised as refugees receive protection in accordance with the Geneva Convention; ... ... k) persons deserving special treatment: unaccompanied minors or vulnerable persons – in particular minors, elderly or disabled persons, pregnant women, single parents raising minors and persons who were subjected to torture, rape or any other grave form of psychological, physical or sexual violence – who have been found, after an individual assessment, to have special needs.” Section 5 “(1) A person seeking recognition shall be entitled to: a) stay in the territory of Hungary according to the conditions set out in the present Act ...; ... c) work ... at a place of accommodation [designated by the asylum authority] ...” Section 31/A, entitled “Asylum detention” “(1) The asylum authority can, in order to conduct the asylum procedure or to secure the Dublin transfer – taking the restrictions laid down in Section 31/B into account – take the person seeking recognition into asylum detention if his/her entitlement to stay is exclusively based on the submission of an application for recognition where a) the identity or citizenship of the person seeking recognition is unclear, in order to establish them, b) a procedure is ongoing for the expulsion of a person seeking recognition and it can be proven on the basis of objective criteria – inclusive of the fact that the applicant has had the opportunity beforehand to submit application of asylum - or there is a well-founded reason to presume that the person seeking recognition is applying for asylum exclusively to delay or frustrate the performance of the expulsion, c) facts and circumstances underpinning the application for asylum need to be established and where these facts or circumstances cannot be established in the absence of detention, in particular when there is a risk of escape by the applicant, d) the detention of the person seeking recognition is necessary for the protection of national security or public order, e) the application was submitted in an airport procedure, or f) it is necessary to carry out a Dublin transfer and there is a serious risk of escape. ...” Section 45 “(1) The principle of non-refoulement prevails if in his or her country of origin, the person requesting recognition would be subject to persecution based on race, religion, nationality, membership of a certain social group or political opinion or would be subject to treatment proscribed by Article XIV (2) of the Fundamental Law ... ... (3) In the case of a rejection of an application for recognition, or in the case of the withdrawal of recognition, the asylum authority states whether or not the principle of non-refoulement is applicable.” Section 51 “(1) If the conditions for the application of the Dublin Regulations are not present, the asylum authority shall decide on the admissibility of the application for refugee status ... (2) An application is not admissible if ... d) the application is repeated and there is no appearance of any new circumstances or facts that would warrant the applicant’s recognition as a refugee or a beneficiary of subsidiary protection; e) there is a country that shall be considered a safe third country with respect to the applicant ... (4) An application may be considered inadmissible pursuant to sub-section (2) e) only if: a) the applicant resided in a safe third country and he or she had the opportunity in that country to request effective protection in line with section (2) i); b) the applicant travelled through a safe third country and he or she could have requested effective protection in line with section (2) i); c) the applicant has a family member in that [safe third] country and is allowed to enter the territory thereof; or d) the safe third country submitted a request for the extradition of the applicant. (5) In the case of a situation falling under sub-section (4) a) or b), it is for the applicant to prove that he or she did not have an opportunity to obtain effective protection in that country in line with section (2) i). ... (11) If section (2) e) ... applies to the applicant, he or she may, immediately after being notified of this, or at the latest three days after the notification, provide evidence that the country in question cannot be considered a safe country of origin or a safe third country in his or her individual case.” Section 51/A “If the safe country of origin or the safe third country refuses to admit or to take back the applicant, the asylum authority shall withdraw its decision and shall continue the procedure.” Section 53 “... (2) The decision declaring the application inadmissible ... may be challenged in court. Except for a decision based on section 51 (2) e) ... the request for court review shall not have a suspensive effect on the decision’s execution. ... (4) The court shall deliver its decision within eight days from the time of receipt of the request for review, in non-contentious proceedings, on the basis of the documents available. The review of the court shall cover the examination of both the facts and the whole range of legal issues, as they stood at the time of the administrative authority’s decision. If necessary, [the court may hear the parties in person]. (5) The court cannot amend the asylum authority’s decision; the unlawful administrative decision ... shall be quashed and, if necessary, the court shall remit the case to the asylum authority for new proceedings. There shall be no remedy against the court’s decision to close the proceedings.” Section 66 “(2) The asylum authority shall base its decision on the information at its disposal or discontinue the proceedings if the person requesting recognition ... d) has left the designated accommodation or place of residence for more than 48 hours for an unknown destination and does not properly justify his or her absence; ... (4) The decision terminating the proceedings on one of the grounds enumerated in sub-section (2) points a) to d) above cannot be challenged in court. ... (6) The applicant may, within nine months from the notification of the discontinuance order, request the continuation of the proceedings terminated under sub-section (2) points b) to d). The applicant may only submit such request in person, before the asylum authority. Upon such request for continuation, submitted in due time, the asylum authority shall continue the proceedings from the procedural stage that preceded the discontinuance. The applicant may request the continuation of the proceedings once.” Section 71/A “(1) If an applicant lodges his or her application before admission to the territory of Hungary, in a transit zone defined by the Act on State Borders, the provisions of this chapter [on the procedure for recognition as a refugee or a beneficiary of subsidiary protection] shall be applied [accordingly, with the differences specified in this section]. (2) In the border proceedings, the applicant does not have the rights guaranteed under section 5(1) a) and c). (3) The asylum authority shall decide as to the admissibility of an application in accelerated proceedings, at the latest within eight days from the time of submission thereof. The asylum authority shall promptly communicate the decision adopted in the procedure. (4) When a decision has not been taken within four weeks, the immigration authority shall grant entry in accordance with the provisions of law. (5) If the application is not inadmissible, the immigration authority shall grant entry in accordance with the provisions of law. (6) If the applicant has been granted entry to the territory of Hungary, the asylum authority shall conduct the proceedings applying the general rules. (7) The rules on proceedings in the transit zone shall not be applied to persons deserving special treatment. ...” Section 80/A, entitled “Crisis caused by mass immigration” “(1) A state of crisis caused by mass immigration may be declared if: a) the number of people arriving in Hungary and seeking recognition exceeds aa) five hundred per day as an average in a month, or ab) seven hundred and fifty per day as an average in two successive weeks, or ac) eight hundred as an average in a week; b) the number of people staying in a transit zone in Hungary – excluding the persons who contribute to looking after such foreigners – exceeds ba) a thousand per day as an average in a month, or bb) one thousand and five hundred per day as an average over two weeks, or bc) one thousand and six hundred per day as an average in a week; c) in addition to the cases specified in points a) and b), any condition evolves in relation to a migration situation that directly jeopardises public safety, public order or public health in a village, town or city, especially if a disturbance breaks out or violent acts are committed at a receiving station or other institution providing accommodation for such foreigners and located at such a place or in its outskirts. (2) The state of crisis caused by mass immigration may be declared by a Government decree, at the request of the national Chief of Police and the head of the asylum authority, and at the proposal of the minister in charge. The state of crisis caused by mass immigration may be declared in respect of the whole territory of Hungary or a specified part thereof. ...” 42. The Government declared a state of crisis caused by mass immigration as of noon on 15 September 2015 in respect of the territory of Bács-Kiskun and Csongrád counties, where the Röszke transit zone was located. On 18 September 2015 the scope of the state of crisis was extended to the territory of Baranya, Somogy, Zala and Vas counties. On 9 March 2016 the state of crisis was maintained and extended to the whole territory of Hungary, until 7 September 2018. 43. The relevant provisions of Act no. II of 2007 on the Admission and Right of Residence of Third Country Nationals (“the Immigration Act”) provide as follows: Section 51 “(1) The refoulement or expulsion shall not be ordered or executed to the territory of a country that fails to satisfy the criteria of a safe country of origin or a safe third country regarding the person in question, in particular where the third-country national is likely to be subjected to persecution on the grounds of his or her race, religion, nationality, social affiliation or political conviction, or to the territory of a country or to the frontier of a territory where there is substantial reason to believe that the refouled or expelled third-country national is likely to be subjected to a treatment proscribed by Article XIV (2) of the Fundamental Law[, notably to death penalty, torture or any other form of inhuman treatment or punishment] (non-refoulement). (2) If there is a pending asylum procedure in respect of the third-country national, his or her refoulement or expulsion cannot be ordered or executed, provided that he or she is entitled, pursuant to a separate law, to reside on the territory of Hungary. ...” Section 52 “(1) The immigration authority shall take into account the principle of non ‑ refoulement in proceedings relating to the ordering and enforcement of a refoulement or expulsion. ...” 44. Government Decree no. 191/2015. (VII. 21.) on the definition of safe countries of origin and safe third countries provides: Section 2 “Member States of the European Union and candidates for EU membership (except Turkey) [2], member states of the European Economic Area, all the states of the United States of America which do not apply the death penalty, and the following countries shall be regarded as ‘safe third countries’ within the meaning of section 2 i) of Act no. LXXX of 2007 on Asylum: 1. Switzerland, 2. Bosnia-Herzegovina, 3. Kosovo, 4. Canada, 5. Australia, 6. New Zealand.” Section 3 “... (2) If, before arriving in Hungary, the person requesting recognition resided in or travelled through one of the third countries classified as safe by the EU list or by section 2 above, he or she may demonstrate, in the course of the asylum proceedings based on the Asylum Act, that in his or her particular case, he or she could not have access to effective protection in that country within the meaning of section (2) i) of the Asylum Act.” Changes in domestic law in force since 28 March 2017 45. As of 28 March 2017 the Asylum Act was amended, in particular as regards the rules to be applied when a state of crisis caused by mass immigration is declared. According to the new rules, in such circumstances applications for recognition can only be submitted, with some limited exceptions, in the transit zone and asylum-seekers are required to wait there until the decision is taken after the examination of the merits of their applications (unlike in the situation regulated by section 71/A (5), they are not allowed to leave the transit zone even if the application is not found to be inadmissible). The time-limit for the court appeal against an inadmissibility decision adopted by the asylum authority is three days (as opposed to seven days under the ordinary rules). Unlike in the ordinary border procedure, section 66 (6) of the Asylum Act does not apply and the applicant cannot request the continuation of the procedure if it was discontinued upon his or her leaving the transit zone. 46. In January 2018 the relevant laws were further amended in connection with the entry into force of the new Act on General Public Administration Procedures (Act no. CL of 2016) and the new Code of Administrative Justice (Act no. I of 2017). Another amendment was introduced in July 2018. European Union LAWDirective 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (recast) (“the Asylum Procedures Directive”) Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (recast) (“the Asylum Procedures Directive”) Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (recast) (“the Asylum Procedures Directive”) 47. The Preamble of this Directive, insofar as relevant, reads: “... (38) Many applications for international protection are made at the border or in a transit zone of a Member State prior to a decision on the entry of the applicant. Member States should be able to provide for admissibility and/or substantive examination procedures which would make it possible for such applications to be decided upon at those locations in well-defined circumstances. (39) In determining whether a situation of uncertainty prevails in the country of origin of an applicant, Member States should ensure that they obtain precise and up ‑ to-date information from relevant sources such as EASO, UNHCR, the Council of Europe and other relevant international organisations. Member States should ensure that any postponement of conclusion of the procedure fully complies with their obligations under Directive 2011/95/EU and Article 41 of the Charter, without prejudice to the efficiency and fairness of the procedures under this Directive. ... (43) Member States should examine all applications on the substance, i.e. assess whether the applicant in question qualifies for international protection in accordance with Directive 2011/95/EU, except where this Directive provides otherwise, in particular where it can reasonably be assumed that another country would do the examination or provide sufficient protection. In particular, Member States should not be obliged to assess the substance of an application for international protection where a first country of asylum has granted the applicant refugee status or otherwise sufficient protection and the applicant will be readmitted to that country. (44) Member States should not be obliged to assess the substance of an application for international protection where the applicant, due to a sufficient connection to a third country as defined by national law, can reasonably be expected to seek protection in that third country, and there are grounds for considering that the applicant will be admitted or readmitted to that country. Member States should only proceed on that basis where that particular applicant would be safe in the third country concerned. In order to avoid secondary movements of applicants, common principles should be established for the consideration or designation by Member States of third countries as safe. (45) Furthermore, with respect to certain European third countries, which observe particularly high human rights and refugee protection standards, Member States should be allowed to not carry out, or not to carry out full examination of, applications for international protection regarding applicants who enter their territory from such European third countries. (46) Where Member States apply safe country concepts on a case-by-case basis or designate countries as safe by adopting lists to that effect, they should take into account, inter alia, the guidelines and operating manuals and the information on countries of origin and activities, including EASO Country of Origin Information report methodology, referred to in Regulation (EU) No 439/2010 of the European Parliament and of the Council of 19 May 2010 establishing a European Asylum Support Office, as well as relevant UNHCR guidelines. (47) In order to facilitate the regular exchange of information about the national application of the concepts of safe country of origin, safe third country and European safe third country as well as a regular review by the Commission of the use of those concepts by Member States, and to prepare for a potential further harmonisation in the future, Member States should notify or periodically inform the Commission about the third countries to which the concepts are applied. The Commission should regularly inform the European Parliament on the result of its reviews. (48) In order to ensure the correct application of the safe country concepts based on up-to-date information, Member States should conduct regular reviews of the situation in those countries based on a range of sources of information, including in particular information from other Member States, EASO, UNHCR, the Council of Europe and other relevant international organisations. When Member States become aware of a significant change in the human rights situation in a country designated by them as safe, they should ensure that a review of that situation is conducted as soon as possible and, where necessary, review the designation of that country as safe. ...” 48. Article 31, entitled “Examination procedure” reads, insofar as relevant: “... 8. Member States may provide that an examination procedure in accordance with the basic principles and guarantees of Chapter II be accelerated and/or conducted at the border or in transit zones in accordance with Article 43 if: ... (b) the applicant is from a safe country of origin within the meaning of this Directive ...” 49. Article 33, entitled “Inadmissible applications” reads as follows: “1. In addition to cases in which an application is not examined in accordance with Regulation (EU) No 604/2013, Member States are not required to examine whether the applicant qualifies for international protection in accordance with Directive 2011/95/EU where an application is considered inadmissible pursuant to this Article. 2. Member States may consider an application for international protection as inadmissible only if: (a) another Member State has granted international protection; (b) a country which is not a Member State is considered as a first country of asylum for the applicant, pursuant to Article 35; (c) a country which is not a Member State is considered as a safe third country for the applicant, pursuant to Article 38; (d) the application is a subsequent application, where no new elements or findings relating to the examination of whether the applicant qualifies as a beneficiary of international protection by virtue of Directive 2011/95/EU have arisen or have been presented by the applicant; or (e) a dependant of the applicant lodges an application, after he or she has in accordance with Article 7(2) consented to have his or her case be part of an application lodged on his or her behalf, and there are no facts relating to the dependant’s situation which justify a separate application.” 50. Article 34, entitled “Special rules on an admissibility interview”, reads, insofar as relevant: “1. Member States shall allow applicants to present their views with regard to the application of the grounds referred to in Article 33 in their particular circumstances before the determining authority decides on the admissibility of an application for international protection. To that end, Member States shall conduct a personal interview on the admissibility of the application. Member States may make an exception only in accordance with Article 42 in the case of a subsequent application. ...” 51. Article 35, entitled “The concept of first country of asylum”, reads as follows: “A country can be considered to be a first country of asylum for a particular applicant if: (a) he or she has been recognised in that country as a refugee and he or she can still avail himself/herself of that protection; or (b) he or she otherwise enjoys sufficient protection in that country, including benefiting from the principle of non-refoulement, provided that he or she will be readmitted to that country. In applying the concept of first country of asylum to the particular circumstances of an applicant, Member States may take into account Article 38(1). The applicant shall be allowed to challenge the application of the first country of asylum concept to his or her particular circumstances.” 52. Article 36, entitled: “The concept of safe country of origin”, reads as follows: “1. A third country designated as a safe country of origin in accordance with this Directive may, after an individual examination of the application, be considered as a safe country of origin for a particular applicant only if: (a) he or she has the nationality of that country; or (b) he or she is a stateless person and was formerly habitually resident in that country, and he or she has not submitted any serious grounds for considering the country not to be a safe country of origin in his or her particular circumstances and in terms of his or her qualification as a beneficiary of international protection in accordance with Directive 2011/95/EU. 2. Member States shall lay down in national legislation further rules and modalities for the application of the safe country of origin concept.” 53. Article 38, entitled “The concept of safe third country”, insofar as relevant, reads as follows: “1. Member States may apply the safe third country concept only where the competent authorities are satisfied that a person seeking international protection will be treated in accordance with the following principles in the third country concerned: (a) life and liberty are not threatened on account of race, religion, nationality, membership of a particular social group or political opinion; (b) there is no risk of serious harm as defined in Directive 2011/95/EU; (c) the principle of non-refoulement in accordance with the Geneva Convention is respected; (d) the prohibition of removal, in violation of the right to freedom from torture and cruel, inhuman or degrading treatment as laid down in international law, is respected; and (e) the possibility exists to request refugee status and, if found to be a refugee, to receive protection in accordance with the Geneva Convention. 2. The application of the safe third country concept shall be subject to rules laid down in national law, including: (a) rules requiring a connection between the applicant and the third country concerned on the basis of which it would be reasonable for that person to go to that country [3]; (b) rules on the methodology by which the competent authorities satisfy themselves that the safe third country concept may be applied to a particular country or to a particular applicant. Such methodology shall include case-by-case consideration of the safety of the country for a particular applicant and/or national designation of countries considered to be generally safe; (c) rules in accordance with international law, allowing an individual examination of whether the third country concerned is safe for a particular applicant which, as a minimum, shall permit the applicant to challenge the application of the safe third country concept on the grounds that the third country is not safe in his or her particular circumstances. The applicant shall also be allowed to challenge the existence of a connection between him or her and the third country in accordance with point (a). 3. When implementing a decision solely based on this Article, Member States shall: (a) inform the applicant accordingly; and (b) provide him or her with a document informing the authorities of the third country, in the language of that country, that the application has not been examined in substance. 4. Where the third country does not permit the applicant to enter its territory, Member States shall ensure that access to a procedure is given in accordance with the basic principles and guarantees described in Chapter II ...” 54. Article 39, entitled “The concept of European safe third country”, insofar as relevant, reads as follows: “1. Member States may provide that no, or no full, examination of the application for international protection and of the safety of the applicant in his or her particular circumstances as described in Chapter II shall take place in cases where a competent authority has established, on the basis of the facts, that the applicant is seeking to enter or has entered illegally into its territory from a safe third country according to paragraph 2. 2. A third country can only be considered as a safe third country for the purposes of paragraph 1 where: (a) it has ratified and observes the provisions of the Geneva Convention without any geographical limitations; (b) it has in place an asylum procedure prescribed by law; and (c) it has ratified the European Convention for the Protection of Human Rights and Fundamental Freedoms and observes its provisions, including the standards relating to effective remedies. 3. The applicant shall be allowed to challenge the application of the concept of European safe third country on the grounds that the third country concerned is not safe in his or her particular circumstances. 4. The Member States concerned shall lay down in national law the modalities for implementing the provisions of paragraph 1 and the consequences of decisions pursuant to those provisions in accordance with the principle of non-refoulement, including providing for exceptions from the application of this Article for humanitarian or political reasons or for reasons of public international law. 5. When implementing a decision solely based on this Article, the Member States concerned shall: (a) inform the applicant accordingly; and (b) provide him or her with a document informing the authorities of the third country, in the language of that country, that the application has not been examined in substance. 6. Where the safe third country does not readmit the applicant, Member States shall ensure that access to a procedure is given in accordance with the basic principles and guarantees described in Chapter II. 7. Member States shall inform the Commission periodically of the countries to which this concept is applied in accordance with this Article ...” 55. Article 43, entitled “Border procedures”, reads as follows: “1. Member States may provide for procedures, in accordance with the basic principles and guarantees of Chapter II, in order to decide at the border or transit zones of the Member State on: (a) the admissibility of an application, pursuant to Article 33, made at such locations; and/or (b) the substance of an application in a procedure pursuant to Article 31(8). 2. Member States shall ensure that a decision in the framework of the procedures provided for in paragraph 1 is taken within a reasonable time. When a decision has not been taken within four weeks, the applicant shall be granted entry to the territory of the Member State in order for his or her application to be processed in accordance with the other provisions of this Directive. 3. In the event of arrivals involving a large number of third-country nationals or stateless persons lodging applications for international protection at the border or in a transit zone, which makes it impossible in practice to apply there the provisions of paragraph 1, those procedures may also be applied where and for as long as these third-country nationals or stateless persons are accommodated normally at locations in proximity to the border or transit zone.” 56. Article 46, entitled “The right to an effective remedy”, insofar as relevant, reads as follows: “1. Member States shall ensure that applicants have the right to an effective remedy before a court or tribunal, against the following: (a) a decision taken on their application for international protection, including a decision: ... (ii) considering an application to be inadmissible pursuant to Article 33(2); (iii) taken at the border or in the transit zones of a Member State as described in Article 43(1) ... 3. In order to comply with paragraph 1, Member States shall ensure that an effective remedy provides for a full and ex nunc examination of both facts and points of law, including, where applicable, an examination of the international protection needs pursuant to Directive 2011/95/EU, at least in appeals procedures before a court or tribunal of first instance.” 57. In its judgment of 21 December 2011 in the case of N. S. and M.E. (C-411/10 and C-493/10), the ECJ ruled inter alia on the concept of European safe third countries. It found that EU law precludes the application of a conclusive presumption that the Member State, which the Dublin II Regulation indicates as responsible, observes the fundamental rights of the European Union. In particular, the ECJ stated: “103. ... [T]he mere ratification of conventions by a Member State cannot result in the application of a conclusive presumption that that State observes those conventions. [...] 104. In those circumstances, the presumption [...] that asylum seekers will be treated in a way which complies with fundamental rights [...] must be regarded as rebuttable.” In paragraph 103 of its judgment, the ECJ explicitly underlined that these findings are applicable to both Member States and third countries. Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (recast) (“the Reception Conditions Directive”) 58. Article 8, entitled “Detention”, reads as follows: “1. Member States shall not hold a person in detention for the sole reason that he or she is an applicant in accordance with Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection. 2. When it proves necessary and on the basis of an individual assessment of each case, Member States may detain an applicant, if other less coercive alternative measures cannot be applied effectively. 3. An applicant may be detained only: (a) in order to determine or verify his or her identity or nationality; (b) in order to determine those elements on which the application for international protection is based which could not be obtained in the absence of detention, in particular when there is a risk of absconding of the applicant; (c) in order to decide, in the context of a procedure, on the applicant’s right to enter the territory; (d) when he or she is detained subject to a return procedure under Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, in order to prepare the return and/or carry out the removal process, and the Member State concerned can substantiate on the basis of objective criteria, including that he or she already had the opportunity to access the asylum procedure, that there are reasonable grounds to believe that he or she is making the application for international protection merely in order to delay or frustrate the enforcement of the return decision; (e) when protection of national security or public order so requires; (f) in accordance with Article 28 of Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third ‑ country national or a stateless person. The grounds for detention shall be laid down in national law. 4. Member States shall ensure that the rules concerning alternatives to detention, such as regular reporting to the authorities, the deposit of a financial guarantee, or an obligation to stay at an assigned place, are laid down in national law.” Agreement between the European Community and the Republic of Serbia on the readmission of persons residing without authorisation 59. This agreement, approved by Council Decision 2007/819/EC of 8 November 2007, provides, in so far as relevant: “Article 3 Readmission of third-country nationals and stateless persons 1. Serbia shall readmit, upon application by a Member State and without further formalities other than those provided for in this Agreement, all third-country nationals or stateless persons who do not, or who no longer, fulfil the legal conditions in force for entry to, presence in, or residence on, the territory of the Requesting Member State provided that it is proved, or may be validly assumed on the basis of prima facie evidence furnished, that such persons: ... (b) illegally and directly entered the territory of the Member States after having stayed on, or transited through, the territory of Serbia. ... 4. After Serbia has given a positive reply to the readmission application, the Requesting Member State issues the person whose readmission has been accepted the EU standard travel document for expulsion purposes.” European Commission Recommendation (EU) 2016/2256 of 8 December 2016 addressed to the Member States on the resumption of transfers to Greece under Regulation (EU) No. 604/2013 60. The relevant passages of this recommendation read as follows: “(1) The transfer of applicants for international protection to Greece under Regulation (EU) No. 604/2013 (hereafter ‘the Dublin Regulation’) has been suspended by Member States since 2011, following two judgments of the European Court of Human Rights (ECHR) and the Court of Justice of the European Union (CJEU), which identified systemic deficiencies in the Greek asylum system, resulting in a violation of the fundamental rights of applicants for international protection transferred from other Member States to Greece under Regulation (EC) No. 343/2003. ... (8) In its previous Recommendations, the Commission has noted the improvements that Greece has made to its legislative framework to ensure that the new legal provisions of the recast Asylum Procedures Directive 2013/32/EU and some of the recast Reception Conditions Directive 2013/33/EU have been transposed into the national legislation. A new law (Law 4375/2016) was adopted by the Greek Parliament on 3 April 2016. On 22 June 2016, the Parliament approved an amendment to Law 4375/2016 which, inter alia, modified the composition of the Appeals Committees and the right of asylum seekers to an oral hearing before them. On 31 August 2016, the Greek Parliament also adopted a law regarding school-aged refugee children residing in Greece. ... (33) The Commission acknowledges the important progress made by Greece, assisted by the Commission, EASO, Member States and international and non-governmental organisations, to improve the functioning of the Greek asylum system since the M.S.S. judgement in 2011. However, Greece is still facing a challenging situation in dealing with a large number of new asylum applicants, notably arising from the implementation of the pre-registration exercise, the continuing irregular arrivals of migrants, albeit at lower levels than before March 2016, and from its responsibilities under the implementation of the EU-Turkey Statement. ... (34) However, significant progress has been attained by Greece in putting in place the essential institutional and legal structures for a properly functioning asylum system and, there is a good prospect for a fully functioning asylum system being in place in the near future, once all the remaining shortcomings have been remedied, in particular as regards reception conditions and the treatment of vulnerable persons, including unaccompanied minors. It is, therefore, appropriate to recommend that transfers should resume gradually and on the basis of individual assurances, taking account of the capacities for reception and treatment of applications in conformity with relevant EU legislation, and taking account of the currently inadequate treatment of certain categories of persons, in particular vulnerable applicants, including unaccompanied minors. The resumption should, moreover, not be applied retroactively but concern asylum applicants for whom Greece is responsible starting from a specific date in order to avoid that an unsustainable burden is placed on Greece. It should be recommended that this date is set at 15 March 2017.” COUNCIL OF EUROPE RECOMMENDATIONS AND GUIDELINES 61. In 1997 the Committee of Ministers of the Council of Europe issued Guidelines on the Application of the Safe Third Country Concept [4] to asylum-seekers. The Guidelines provide that, in order to assess whether a country is a safe third country to which an asylum ‑ seeker can be sent, all the criteria indicated below should be met in each case: “a) observance by the third country of international human rights standards relevant to asylum as established in universal and regional instruments including compliance with the prohibition of torture, inhuman or degrading treatment or punishment; b) observance by the third country of international principles relating to the protection of refugees as embodied in the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, with special regard to the principle of non ‑ refoulement; c) the third country will provide effective protection against refoulement and the possibility to seek and enjoy asylum; d) the asylum-seeker has already been granted effective protection in the third country or has had the opportunity, at the border or within the territory of the third country, to make contact with that country’s authorities in order to seek protection there before moving on to the member State where the asylum request is lodged or, that as a result of personal circumstances of the asylum-seeker, including his or her prior relations with the third country, there is clear evidence of the admissibility of the asylum-seeker to the third country.” 62. In addition, the Guidelines indicate that: “States should adopt modalities to provide for informing the asylum-seeker and, as far as necessary and in accordance with existing data protection legislation or, in absence of such legislation, with the consent of the asylum-seeker, the authorities of the third country that, when a country is considered safe in the above stated manner, applications for asylum are generally not examined in substance.” 63. In 2009 the Committee of Ministers, in its Guidelines on human rights protection in the context of accelerated asylum procedures [5], required that all asylum seekers have an effective opportunity to rebut the presumption of safety of the third country, underlining that the application of this concept did not relieve a State of its obligations under Article 3 of the Convention. It also stated that the criteria mentioned below must be satisfied when applying the safe-third-country concept: “a. the third country has ratified and implemented the Geneva Convention and the 1967 Protocol relating to the Status of Refugees or equivalent legal standards and other relevant international treaties in the human rights field; b. the principle of non-refoulement is effectively respected; c. the asylum seeker concerned has access, in law and in practice, to a full and fair asylum procedure in the third country with a view to determining his/her need for international protection; and d. the third country will admit the asylum seeker.” 64. In its Resolution 1471 (2005) on Accelerated Asylum Procedure in Council of Europe Member States, the Council of Europe’s Parliamentary Assembly stated, inter alia : “... [T]he Parliamentary Assembly invites the governments of the member states of the Council of Europe: ... 8.2. as regards the concept of safe country of origin, to: 8.2.1. ensure that clear and demonstrable safeguards are adopted to guarantee an effective access to an asylum determination procedure which can lead to the granting of refugee status or other forms of international protection; 8.2.2. ensure that the burden of proof does not switch to the applicant to prove that a country is unsafe and that the applicant has an effective opportunity to rebut the presumption of safety; 8.2.3. take great caution in adopting, in the context of the proposal for a European Council directive, a list of safe countries of origin which may lead to a lowering of standards of protection for asylum seekers from the countries concerned and could undermine the underlying concept of refugee protection, which is based on the individual situation of the asylum seeker rather than a general analysis and judgment on the country ...” REPORTS OF VISITS AND RESEARCH BY INTERNATIONAL BODIES AND NON ‑ GOVERNMENTAL ORGANISATIONSAs regards Hungary As regards Hungary As regards Hungary 65. The Report to the Hungarian Government on the visit to Hungary carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“CPT”) from 21 to 27 October 2015 contains the following passages: “The CPT notes the efforts made to provide information and legal assistance to foreign nationals in immigration and asylum detention. However, a lack of information on their legal situation, on the future steps in their respective proceedings and the length of their detention was perceived by foreign nationals as a major problem in most of the establishments visited. ... As regards the safeguards to protect foreign nationals against refoulement, the CPT expresses doubts, in view of the relevant legislative framework and its practical operation, whether border asylum procedures are in practice accompanied by appropriate safeguards, whether they provide a real opportunity for foreign nationals to present their case and whether they involve an individual assessment of the risk of ill-treatment in the case of removal. ... The two transit zones visited by the delegation at Röszke and Tompa were located on Hungarian territory ... Different containers served as offices, waiting rooms, a dining room and sanitary facilities (with toilets, wash basins, showers and hot-water boilers), and approximately ten of them were used for the accommodation of foreign nationals. (In footnote: The sanitary facilities were in a good state and call for no particular comment.) ... All accommodation containers measured some 13 m² and were equipped with two to five beds fitted with clean mattresses, pillows and bedding. They were clean and had good access to natural light and artificial lighting, as well as to electric heating. Further, in both transit zones visited, there was a narrow designated area in front of the containers which was fenced off from the rest of the compound of the transit zone and to which foreign nationals had unrestricted access during the day. As far as the delegation could ascertain, foreign nationals had usually only been held in the transit zones for short periods (up to 13 hours) and hardly ever overnight. That said, if foreign nationals were to be held in a transit zone for longer periods, the maximum capacity of the accommodation containers should be reduced and they should be equipped with some basic furniture. ... On the whole, the delegation gained a generally favourable impression of the health-care facilities and the general health care provided to foreign nationals in all the establishments visited. ... Further, some detained foreign nationals met by the delegation were unaware of their right of access to a lawyer, let alone one appointed ex officio. A few foreign nationals claimed that they had been told by police officers that such a right did not exist in Hungary. Moreover, the majority of those foreign nationals who did have an ex officio lawyer appointed complained that they did not have an opportunity to consult the lawyer before being questioned by the police or before a court hearing and that the lawyer remained totally passive throughout the police questioning or court hearing. In this context, it is also noteworthy that several foreign nationals stated that they were not sure whether they had a lawyer appointed as somebody unknown to them was simply present during the official proceedings without talking to them and without saying anything in their interest. ... However, the majority of foreign nationals interviewed by the delegation claimed that they had not been informed of their rights upon their apprehension by the police (let alone in a language they could understand) and that all the documents they had received since their entry into the country were in Hungarian. ... ... many foreign nationals (including unaccompanied juveniles) complained about the quality of interpretation services and in particular that they were made to sign documents in Hungarian, the contents of which were not translated to them and which they consequently did not understand. ... ... the CPT has serious doubts whether border asylum procedures are in practice accompanied by appropriate safeguards, whether they provide a real opportunity for foreign nationals to present their case and involve an individual assessment of the risk of ill-treatment in case of removal and thus provide an effective protection against refoulement, bearing also in mind that, according to UNHCR, Serbia cannot be considered a safe country of asylum due to the shortcomings in its asylum system, notably its inability to cope with the increasing numbers of asylum applications ...” 66. The CPT revisited the Röszke transit zone in October 2017. In its report of that visit, the CPT noted that the zone had been enlarged but that asylum-seekers remained free to move only within the sector where their container was located. The premises were maintained in a good state of hygiene, and efforts were being made to allow for activities. However, almost all the containers were used at full capacity, which meant that five persons had to sleep in a 13 m² container. 67. In the 13 October 2017 report (SG/Inf(2017)33) on his fact-finding mission of June 2017, Ambassador Tomáš Boček, Special Representative of the Secretary General of the Council of Europe on migration and refugees, made, inter alia, the following observations concerning the Rӧszke transit zone. He noted that the area of the zone was surrounded by barbed wire fence and was guarded at all times. It was divided into sections, one of them designated for families and another for single men. The section for single men comprised one row of containers placed adjacent to each other, sharing an approximately 2-metre-wide corridor. Persons who stayed in one section could go to other parts of the zone only to visit the doctor or to attend interviews with the asylum authorities, and were always escorted by guards, even inside the transit zone. Also, at the time of the visit in June 2017 the Hungarian authorities had informed the Special Representative that the average duration of a stay in the zone had been 33 days, but he had spoken with individuals who had mentioned periods of confinement of two and more months. The Special Representative also described the living conditions in the zone and noted that hygiene was good, three meals a day, including one hot meal, were distributed, and there was a doctor’s room where basic medical care was provided. 68. In a report entitled “Hungary as a country of asylum. Observations on restrictive legal measures and subsequent practice implemented between July 2015 and March 2016”, published in May 2016, the UNHCR made the following observations: “19. Additionally, as noted above in Paragraph 15, the Act on the State Border refers to asylum-seekers being “temporarily accommodated” in the transit zone. The Hungarian authorities claim that such individuals are not “detained” since they are free to leave the transit zone at any time in the direction from which they came. However, as outlined above in Paragraph 16, they are not allowed to enter Hungary. In UNHCR’s view, this severely restricts the freedom of movement and can be qualified as detention. As such, it should be governed inter alia by the safeguards on detention in the EU’s recast Reception Conditions Directive (RCD). ... 71. In any event, UNHCR maintains the position taken in its observations on the Serbian asylum system in August 2012 that asylum-seekers should not be returned to Serbia. While the number of asylum-seekers passing through that country has since greatly increased, leaving its asylum system with even less capacity to respond in accordance with international standards than before, many of UNHCR’s findings and conclusions of August 2012 remain valid. For example, between 1 January and 31 August 2015, the Misdemeanour Court in Kanjiža penalized 3,150 third country nationals readmitted to Serbia from Hungary for illegal stay or illegal border crossing, and sentenced most of them to a monetary fine. Such individuals are denied the right to (re) apply for asylum in Serbia.” 69. A report entitled “Crossing Boundaries: The new asylum procedure at the border and restrictions to accessing protection in Hungary” by the European Council for Refugees and Exiles (“ECRE”) prepared on 1 October 2015 contains the following passages: “In case of expulsion to Serbia [from Hungary], those returned are in practice barred from accessing the asylum procedure and reception conditions in Serbia. Upon return, they are prosecuted for irregular border-crossing, which is a criminal offence punishable by a fine or imprisonment. In practice, most persons are issued a warning and are given no further sentence after conviction. However, the court decision is accompanied by a decision of the Ministry which terminates the asylum seeker’s right to reside on the Serbian territory. Following that decision, asylum seekers are not allowed in one of the refugee camps in the country and, for want of a registered residence, to formally lodge an asylum application in Serbia. ... ... [T]ransfers to Hungary are liable to expose applicants to a real risk of chain deportation to Serbia, which may trigger a practice of indirect refoulement sanctioned by human rights law. On that very basis, a number of Dublin transfers to Hungary have been suspended by German and Austrian courts. In view of the (retroactive) automatic applicability of the ‘safe third country’ concept in respect of persons entering through Serbia and the risk of refoulement stemming from their return to Hungary, ECRE calls on Member States to refrain from transferring applicants for international protection to Hungary under the Dublin Regulation.” 70. The ECRE’s “Case Law Fact Sheet: Prevention of Dublin Transfers to Hungary” published in January 2016 contains the following passages: “An overwhelming amount of recent case law has cited the August and September legislative amendments to the Hungarian Asylum Act when preventing transfers to the country. Moreover, the Hungarian legislative revisions have impacted upon policy changes elsewhere, as evidenced by the Danish Refugee Appeals Board decision in October 2015 to suspend all Dublin transfers to Hungary. ... The entry into force in August and September 2015 of legislation creating a legal basis for the construction of a fence on the border between Hungary and Serbia in conjunction with further legislative amendments criminalising irregular entry and damage to the fence has resulted in an extremely hostile environment towards those seeking asylum, violating the right to asylum, the right to effective access to procedures and the non-criminalisation of refugees ... It is the imposition of an admissibility procedure at the transit zones, and in particular the inadmissibility ground relating to the Safe Third Country concept, which has been at the forefront of most jurisprudence. Government Decree 191/2015 designates countries such as Serbia as safe, leading Hungarian authorities to declare all applications of asylum seekers coming through Serbia as inadmissible. Given the location of the transit zones at the Hungarian-Serbian border over 99% of asylum applications, without an in-merit consideration of the protection claims, have been rejected on this basis by the Office of Immigration and Nationality (OIN). Moreover, the clear EU procedural violations that this process gives rise to have been documented by the Hungarian Helsinki Committee as well as ECRE. From the latest statistics this process is still in full swing with the Commissioner for Human Rights submitting that between mid-September and the end of November 2015, 311 out of the 372 inadmissible decisions taken at both the border and in accelerated procedures were found as such on the safe third country concept ground. With a clear lack of an effective remedy against such a decision available and an immediate accompanying entry ban for 1 or 2 years, various actors as well as the judiciary have argued that Hungary is in breach of its non-refoulement obligations.” 71. Amnesty International stated the following in its report of 2015, entitled “Fenced Out, Hungary’s Violations of the Rights of Refugees and Migrants”: “People who had been stranded at the border crossing Röszke/Horgoš as of 15 September had in theory the option of applying for asylum ... Once or twice an hour, a police officer accompanied by a translator speaking Arabic, Farsi and Urdu opened the door of the container and randomly allowed groups of two to five persons to enter the “transit zone”. People were entering assuming that they would be allowed to proceed to Hungary this way. ... [H]owever, the majority of these were returned straight back to Serbia. The rest was stuck in the border area’s makeshift camp hoping that the border would be opened at some point. Some gave up and left the area immediately, others remained a few days longer before moving on to the Croatia as it became apparent that the border would remain closed indefinitely. A man in a group of 50 Syrians travelling together who left the makeshift camp in Röszke/Horgoš on 16 September 2015 [apparently in the direction of Serbia] told Amnesty International: ‘We did not try [to enter] the “transit zones”. We heard that everyone who tried failed and we feared we could not try anywhere else after [because of getting registered in the Schengen Information System].’” As regards Serbia 72. Since 2001, Serbia is a party to the 1951 Convention relating to the Status of Refugees and to its 1967 Protocol. 73. A report entitled “Serbia as a Country of Asylum: Observations on the Situation of Asylum-Seekers and Beneficiaries of International Protection in Serbia” prepared in August 2012 by the UNHCR contains the following passages: “37. The list of safe third countries adopted by the Government of Serbia is, in UNHCR’s view, excessively inclusive and broadly applied ... 38. The Asylum Office applies the “safe third country concept” to all asylum ‑ seekers who have transited through countries on the list, without ensuring adequate safeguards in the individual case, such as a guarantee of readmission and access to the asylum process in the so-called safe third country. ... 75. The risk of deportation to countries of origin is relatively small for persons transferred to Serbia under readmission agreements. To UNHCR’s knowledge, even though Serbia has readmission agreements with the European Community and a number of bilateral agreements with EU and other States, foreign citizens are transferred to Serbia only from Hungary, Croatia and Bosnia and Herzegovina. Upon reception by the border police in Serbia on their return, third-country nationals are routinely taken to the local courts and sentenced for irregular border crossing with either a short term prison term (10 to 15 days) or a fine (usually equivalent of 50 Euros). They are usually issued an order to leave the territory of Serbia within three days, but this is not enforced. As there is no removal procedure in place, they are generally left to depart on their own, and many resume their journey towards Western Europe. 76. However, UNHCR received reports in November 2011 and again in February 2012 that migrants transferred from Hungary to Serbia were being put in buses and taken directly to the former Yugoslav Republic of Macedonia. ... There have been other reports that the Serbian police have rounded up irregular migrants in Serbia and were similarly sent back to the former Yugoslav Republic of Macedonia. ... 79. ... Despite some incremental improvements notably with regard to reception standards, Serbia’s asylum system has been unable to cope with the recent increases in the numbers of asylum applicants. This has exposed significant shortcomings in numbers of personnel, expertise, infrastructure, implementation of the legislation and government support. .... The current system is manifestly not capable of processing the increasing numbers of asylum-seekers in a manner consistent with international and EU norms. These shortcomings, viewed in combination with the fact that there has not been a single recognition of refugee status since April 2008, strongly suggest that the asylum system as a whole is not adequately recognizing those in need of international protection. 80. There is a need to set up a fair and efficient asylum procedure that is not only consistent with the existing legislative framework, but is also capable of adequately processing the claims of the increasing number of asylum-seekers in a manner consistent with international standards. ... 81. Until such a system is fully established in Serbia, for the reasons stated above, UNHCR recommends that Serbia not be considered a safe third country of asylum, and that countries therefore refrain from sending asylum-seekers back to Serbia on this basis.” 74. A report entitled “Country Report: Serbia”, up-to-date as of 31 December 2016, prepared by AIDA, Asylum Information Database, published by ECRE stated that the “adoption of the new [Serb] Asylum Act, initially foreseen for 2016, has been postponed”. 75. In his report (SG/Inf(2017)33) of 13 October 2017 of his fact-finding mission of June 2017, Ambassador Tomáš Boček, Special Representative of the Secretary General of the Council of Europe on migration and refugees, made, inter alia, the following observations concerning Serbia: “NGOs’ reports ... suggest that in 2016 there were summary and collective expulsions of foreigners from Serbia to “the former Yugoslav Republic of Macedonia” and to Bulgaria. During our mission, the Serbian authorities confirmed that there had been instances of pushbacks of refugees and migrants from Serbia to the above-mentioned neighbouring countries ... It should be underlined that the overwhelming majority of those who have expressed an intention to seek asylum in Serbia do not wish to stay in the country, as their end-goal is to reach other European countries. Consequently, they do not lodge asylum applications in Serbia or abandon the asylum procedures whenever they have done so. In the first six months of 2017, 3 251 persons registered their intention to seek asylum, of whom only 151 applied for asylum. ...” 76. According to the Belgrade Centre for Human Rights, a non ‑ governmental organisation, during the period 1 April 2008 – 31 December 2014 Serbia’s authorities granted refugee status to six and subsidiary protection to twelve people altogether (BCHR, Right to Asylum in the Republic of Serbia 2014, p. 20). 77. Pursuant to the Serbian Government’s “Decision Determining the List of Safe Countries of Origin and Safe Third Countries”, Official Gazette of the Republic of Serbia, no. 67/2009, which was applicable in 2015, the Former Yugoslav Republic of Macedonia, Greece and Turkey, among others, are considered safe third countries. As regards the Republic of North Macedonia 78. A report entitled “The former Yugoslav Republic of Macedonia As a Country of Asylum” prepared in August 2015 by the UNHCR contains the following passages: “5. The former Yugoslav Republic of Macedonia has a national asylum law, the Law on Asylum and Temporary Protection. This was substantially amended in 2012, with the amended version having come into force in 2013. UNHCR participated in the drafting process, in an effort to ensure that the legislation is in line with international standards. The law currently incorporates many key provisions of the 1951 Convention. Furthermore, the provisions on subsidiary protection in the law are in conformity with relevant EU standards. The law also provides for certain rights up to the standard of nationals for those who benefit from international protection, as well as free legal aid during all stages of the asylum procedure. Nevertheless, some key provisions are still not in line with international standards. In response to a sharp increase in irregular migration, the Law on Asylum and Temporary Protection was recently further amended to change the previously restrictive regulations for applying for asylum in the former Yugoslav Republic of Macedonia, which exposed asylum ‑ seekers to a risk of arbitrary detention and push-backs at the border. The new amendments, which were adopted on 18 June 2015, introduce a procedure for registration of the intention to submit an asylum application at the border, protect asylum-seekers from the risk of refoulement and allow them to enter and be in the country legally for a short timeframe of 72 hours, before formally registering their asylum application. ... 46. Despite these positive developments, UNHCR considers that significant weaknesses persist in the asylum system in practice. At the time of writing, the former Yugoslav Republic of Macedonia has not been able to ensure that asylum-seekers have access to a fair and efficient asylum procedure. ... Inadequate asylum procedures result in low recognition rates, even for the minority of asylum-seekers who stay in the former Yugoslav Republic of Macedonia to wait for the outcome of their asylum claim.” THE LAW THE RESPONDENT GOVERNMENT’S PRELIMINARY OBJECTIONSObjection concerning the six-month time limit under Article 35 § 1 of the Convention Objection concerning the six-month time limit under Article 35 § 1 of the Convention Objection concerning the six-month time limit under Article 35 § 1 of the Convention 79. As they did before the Chamber, the respondent Government reiterated their objection that the complaint under Article 13 in conjunction with Article 3 regarding the alleged lack of remedies in respect of the living conditions in the Röszke border transit zone was submitted outside the six ‑ month time limit laid down in Article 35 § 1 of the Convention. The applicants invited the Grand Chamber to adopt the Chamber’s conclusion that the complaint had been submitted in time and was admissible. 80. Under Article 35 § 4 of the Convention, the Court may dismiss applications which it considers inadmissible “at any stage of the proceedings”. Therefore, even at the merits stage and subject to Rule 55 of the Rules of Court, the Grand Chamber may reconsider a decision to declare an application admissible (see, for example, Fábián v. Hungary [GC], no. 78117/13, § 89, 5 September 2017, with the references therein). 81. The Court notes that in the present case the six-month time limit under Article 35 § 1 of the Convention started running in respect of the complaint at issue on 9 October 2015, the day after the applicants left the zone (see paragraph 8 above), and expired on 8 April 2016 (see Sabri Güneş v. Turkey [GC], no. 27396/06, § 44, 29 June 2012). 82. The decisive issue is whether the complaint in question was made out in submissions introduced in time. Before the Chamber the applicants had referred to several passages from their letter of 25 September 2015 and their application form of 13 October 2015, maintaining that they contained the complaint at issue. The Chamber considered that the complaint was formulated in the applicants’ letter of 25 September 2015, and therefore in time (see paragraphs 3 and 92-95 of the Chamber judgment). 83. In particular, the applicants had referred to the following passage from the letter of 25 September 2015 (original in English): “The domestic provisions of Hungarian law in force do not allow the courts to review the lawfulness of the deprivation of liberty, the conditions under which the applicants/third country nationals are held in the transit zone or to impose a limit on the duration of detention.” 84. The Court notes that this passage appears in a sub-section relating solely to the question whether the stay in the transit zone amounted to deprivation of liberty within the meaning of Article 5 of the Convention. The same letter of 25 September 2015, which runs to 15 pages, contains a separate sub-section about the physical conditions in the transit zone and the alleged violation of Article 3 in that respect but no mention of a complaint about lack of effective remedy can be found there. In these circumstances, it appears that the mention of “conditions under which the applicants ... are held in the transit zone” in the relevant passage cited above meant conditions affecting the question whether there was deprivation of liberty within the meaning of Article 5 and its lawfulness. A reference to Article 13 can only be found in the letter of 25 September 2015 in relation to the remedies against the expulsion order concerning the applicants. 85. Under the Court’s case-law, some indication of the factual basis of the complaint and the nature of the alleged violation of the Convention is required to introduce a complaint and interrupt the running of the six-month period (see Fábián, cited above, § 94; Abuyeva and Others v. Russia, no. 27065/05, § 222, 2 December 2010; and Allan v. the United Kingdom (dec.), no. 48539/99, 28 August 2001). Under paragraph 7 of the Practice directions on institutions of proceedings, issued by the President of the Court in accordance with Rule 32 of the Rules of Court, as in force at the time the applicants submitted their application form dated 13 October 2015, applicants must set out the complaints and provide information that “should be enough to enable the Court to determine the nature and scope of the application”. Ambiguous phrases or isolated words do not suffice to accept that a particular complaint has been raised. 86. In the present case the Grand Chamber considers that the above cited passage is too ambiguous to be interpreted as raising the complaint at issue. 87. The Grand Chamber has also examined the remainder of the applicants’ submissions of 25 September and 13 October 2015 but is unable to find therein a complaint under Article 13 in conjunction with Article 3 regarding the alleged lack of remedies in respect of the living conditions in the Röszke transit zone. It is significant in this respect that these submissions were made by a lawyer and contained detailed reasoning, organised in separate sub-sections on each complaint made. It is highly unlikely that if the applicants had intended to raise the complaint in question they would have done so without devoting a separate point or sub-section to it. The Court finds, therefore, that this complaint was not introduced by the applicants in September or October 2015. 88. The complaint was mentioned for the first time in the applicants’ observations in reply dated 29 August 2016, well after the expiry of the six ‑ month time limit. It was formulated again later, in the applicants’ additional submissions of 28 November 2016. 89. It follows that the Government’s preliminary objection must be upheld and that the complaint under Article 13 in conjunction with Article 3 regarding the alleged lack of remedies in respect of the living conditions in the Röszke transit zone, must be declared inadmissible under Article 35 § 4 of the Convention as having been submitted after the expiry of the six ‑ month time limit under its Article 35 § 1. Objection as to the applicants’ victim status 90. The respondent Government reiterated before the Grand Chamber their objection concerning the applicants’ victim status in relation to their complaint under Article 3 of the Convention about their removal to Serbia. Noting that the applicants had at no stage complained to the Serbian authorities or to the Court about refoulement from or ill-treatment in Serbia, the Government submitted that this fact was conclusive proof that the applicants had not been at risk at the time of the asylum procedure in Hungary, and therefore concluded that they could not have claimed, at any relevant time, to have been victims, within the meaning of Article 34 of the Convention, of the alleged violation of Article 3. 91. The applicants disagreed, as they had done before the Chamber. The Chamber dismissed the Government’s objection and declared the complaint under Article 3 admissible (see paragraphs 103-07 of the Chamber judgment). 92. The Court considers that the issue raised in the Government’s objection – whether or not there was a real risk of ill-treatment in the event of removal to Serbia – potentially concerns the substance of the applicants’ complaint under Article 3 but not the victim-status requirement of Article 34 of the Convention. 93. With regard to that requirement, it is sufficient to observe that the applicants were directly affected by the acts and actions complained of in that the expulsion decision was binding and enforceable and was followed by their removal from Hungary to Serbia. In those circumstances, the applicants could claim that they were the victims of the alleged violation of the Convention in relation to their removal (see the Court’s approach in, for example, Vijayanathan and Pusparajah v. France, 27 August 1992, §§ 43 ‑ 47, Series A no. 241-B). 94. Noting, in addition, that the Government have not claimed that there were any other events, such as measures taken by the Hungarian authorities in the applicants’ favour and the acknowledgment of a violation removing their victim status (see Murray v. the Netherlands [GC], no. 10511/10, § 83, 26 April 2016), the Court rejects the Government’s preliminary objection concerning the victim requirement of Article 34 of the Convention. Objection based on the fact that Hungary applied EU law in the present case 95. The respondent Government argued that Hungary had acted in accordance with EU law, which limited the competence of the Court. 96. The Court recalls that even when applying European Union law, the Contracting States remain bound by the obligations they freely entered into on acceding to the Convention. However, when two conditions are met – the absence of any margin of manoeuvre on the part of the domestic authorities and the deployment of the full potential of the supervisory mechanism provided for by European Union law – those obligations must be assessed in the light of the presumption of Convention conformity as established in the Court’s case-law (see Avotiņš v. Latvia [GC], no. 17502/07, § 105, 23 May 2016, with the references therein). The State remains fully responsible under the Convention for all acts falling outside its strict international legal obligations (see Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland [GC], no. 45036/98, § 157, ECHR 2005-VI). 97. In the present case the relevant EU law (see paragraphs 47-58 above) consists of directives which do not impose on Hungary an obligation to act as they did, including holding the applicants in the transit area, forbidding them to enter Hungary, deciding not to assess the merits of their asylum request, relying on there being a safe third country, and declaring Serbia to be a safe third country. The Hungarian authorities exercised a discretion granted under EU law, and the impugned measures taken by them did not fall within Hungary’s strict international legal obligations. Accordingly, the presumption of equivalent protection by the legal system of the EU does not apply in this case and Hungary is fully responsible under the Convention for the impugned acts (see, for a similar outcome, M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 340, ECHR 2011). ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION CONCERNING THE APPLICANTS’ REMOVAL TO SERBIA 98. The applicants alleged that their expulsion to Serbia had exposed them to a real risk of treatment contrary to Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” The Chamber judgment 99. The Chamber observed that between January 2013 and July 2015 Hungary had not considered Serbia as a safe third country, and no convincing explanation or reasons had been adduced by the Government for the reversal of that attitude, especially in the light of the reservations of the UNHCR and highly respected international human rights organisations. The Chamber further noted that the Hungarian authorities had not sought to rule out that if the applicants were removed to Serbia, they might further be expelled to Greece, where the reception conditions for asylum seekers were in breach of Convention standards. Also taking issue with other procedural shortcomings, the Chamber found that the applicants had not enjoyed any effective guarantees to protect them from a real risk of being subjected to inhuman or degrading treatment in breach of Article 3. The parties’ submissionsThe applicants The applicants The applicants 100. The applicants alleged that their removal to Serbia exposed them to a real risk of treatment contrary to Article 3, because (a) there was a risk that they would not be admitted to Serbia or would not be allowed access to an asylum procedure, (b) there was a risk of chain-refoulement, and (c) there was no prospect of access to adequate reception facilities or to adequate protection taking account of their vulnerability. 101. In particular, the Hungarian authorities knew that the applicants would not be allowed to enter and stay in Serbia, but nevertheless removed them in breach of the procedures under the applicable readmission agreement and without obtaining assurances from the Serbian authorities. On the day of the applicants’ removal the Hungarian authorities left them alone in Hungarian territory, just outside the transit zone, and obliged them to cross into Serbia illegally. There was furthermore a known practice on the part of the Serbian authorities, documented by the Ombudsperson of Serbia in October 2014 and by the UNHCR in 2016, not to allow returnees from Hungary to apply for asylum or have access to reception conditions. Other practices in Serbia noted by the UN bodies and NGOs included penalising readmitted third-country nationals for illegal border crossing despite their asylum-seeker status, and a risk of harassment and abuse. Moreover, the Serbian asylum procedure suffered from serious deficiencies. 102. The applicants, referring to reports by UN bodies and NGOs, submitted that the risk of chain-refoulement and push-backs from Serbia to the Republic of North Macedonia and then to Greece was well ‑ documented. The Asylum Office of Serbia had confirmed in a letter of October 2016 that the concept of safe third countries was applied without seeking guarantees of access to their territory and asylum procedures. The Serbian list of safe third countries included the Former Yugoslav Republic of Macedonia, Greece and Turkey, and asylum-seekers were routinely, indeed automatically, returned there. 103. The applicants further stated that the Hungarian authorities must have known that persons in their situation would not be given access to reception facilities in Serbia, and that in any event those facilities and conditions were deficient. 104. In the applicants’ view, the relevant Hungarian law and the decision-making process in their case were inadequate, did not provide the requisite safeguards and did not ensure effective remedies in practice. 105. In particular, both the initial and the renewed asylum procedure in the applicants’ case were hastily carried out, and the time-limit for appeals was only seven days, which deprived the applicants of their right to rebut the presumption that Serbia was a safe third country in their case. Furthermore, each applicant was interviewed once in the first procedure, with no opportunity to receive prior information or legal assistance. They were unable to confer with a lawyer before the first hearing took place, and their lawyer was not properly notified of the time of the interview in the second, renewed procedure. The interpretation was not provided in the applicants’ mother tongue and was of a poor quality. The applicants at no stage received adequate procedural information in a language which they understood or information about the evidence that had been used as the basis for applying the safe third country rule to their case. Moreover, both the asylum authority and the Szeged court disregarded the country information and legal arguments submitted to them. In its decision of 5 October 2015, the Szeged court limited its review to the question whether the asylum authority had complied with the previous court ruling. Finally, the applicants were removed from the transit zone without proper notification of the relevant decisions, after their right to file a judicial review request against their potential deportation and expulsion decisions had been denied. 106. In the applicants’ view, their asylum requests were rejected on the sole basis of the automatic application of the Government’s list of safe third countries. The authorities failed to consider widely available reports from reliable sources on the deficiencies of the Serbian asylum system and the realities on the ground and the applicants’ individual circumstances. Although there was a reference to three reports in the asylum authority’s second decision, the conclusions made were at odds with the reports’ findings. Moreover, instead of looking at the risks in the event of a future return to Serbia, the authorities merely noted that the applicants had not provided evidence of past ill ‑ treatment or denial of effective protection during their transit through Serbia. In view of the medical report on the applicants’ mental health the authorities should have examined the information on inadequate reception conditions, in particular for those returned to Serbia, who were known to be treated differently from new arrivals there. 107. Finally, the applicants submitted that since the authorities’ assessment did not meet Convention standards, the respondent Government could not argue in the present case that there had been no Article 3 risks. They were also estopped from claiming that the applicants had had no arguable claim under Article 3 in relation to their country of origin: this was an unacceptable speculation since the inadmissibility procedure in the applicants’ case had excluded any assessment of the risks in relation to the country of origin. The respondent Government 108. The Government emphasised the importance of the distinction between the right to seek asylum, recognised in international law, and a purported right to be admitted to a preferred country for the purpose of seeking asylum. To avoid feeding the false perception that there was a right to asylum in the country offering the best protection, it was necessary to adopt a careful and realistic interpretation of any alleged risk of refoulement and of the threshold of severity triggering the application of Article 3. 109. In the Government’s view, the UNHCR tried to mitigate the consequences of humanitarian catastrophes by advocating a right to asylum ‑ shopping and pushing States towards ever higher standards of protection. This was approved by the NGOs and humanitarian organisations, as well as by those seeking cheap labour in Europe. However, in an era of globalisation the perception that everyone had a right to move to the EU to enjoy the benefits of a welfare State spread quickly, and it was becoming impossible to stop fake refugees from entering the EU while observing the standards advocated by the UNHCR. The practical impossibility of removing undocumented migrants who were not entitled to international protection had rendered immigration uncontrollable. This was causing social tension, a feeling of powerlessness and a sense of loss of sovereignty in affected States. Asylum-shopping diverted resources from the search for collective solutions by the international community to the resettlement of refugees or improving their situation in the first safe country. In this respect, asylum-shopping was contrary to Article 17 of the Convention. 110. The Government considered that only a return to the rules of “well ‑ established international law” could prevent escalation of the European migration crisis. A solution to the global issues of migration could only be found in the collective action of sovereign States if the ability to prevent abuses effectively was restored to them. 111. The Government emphasised that the applicants did not face any danger in their country of origin, Bangladesh. Their accounts of their personal circumstances and their journeys to Western Europe had been contradictory and periodically readapted to suit their claims. Since the applicants had failed to establish a prima facie case of persecution in their country of origin, there was no risk of refoulement from Serbia. 112. The Government stated that the Hungarian legislation adopted in 2015 was based on a possibility provided for under EU law. Hungary regarded Serbia, an EU candidate country, as a safe third country since it had agreed to be bound by all the relevant international treaties and EU requirements and benefited from EU support for reforms and upgraded asylum facilities. In any event, Hungarian law only established a presumption, rebuttable in individual cases. An applicant could only be sent back to a third country if the authorities were satisfied that the return would not lead to direct or indirect refoulement. The 2015 legislative amendment adding Serbia to the list of safe third countries was needed in the face of an unprecedented wave of migration aggravated by ever-increasing abuse of the right to asylum, including fake asylum-seekers and asylum-shopping by genuine asylum-seekers. It served to render the asylum procedures faster and more effective while maintaining the applicable guarantees. 113. The low rate of successful asylum applications in Serbia is not the result of a deficient asylum system but of asylum-seekers leaving Serbia before the conclusion of the procedures. In 2015 (up to 31 July) 66,428 persons had requested asylum in Serbia at the borders and been directed to refugee reception centres, but only 486 of them had reported to those centres. The rest of them had left Serbia before the asylum procedure could be completed, or even started. A similar phenomenon had existed in Hungary until March 2017, when the authorities had begun to initiate the in-merit stage of the asylum procedure in the transit zones at the border: whereas the recognition rate in Hungary had previously been 0.5%, it had soared to 46% since then. 114. Furthermore, there had been no UNHCR reports and no cases before the Court indicating that Serbia had violated the principle of non ‑ refoulement. The UNHCR report of August 2012, cited in the Chamber judgment, did not state that Serbia had failed to observe the principle of non ‑ refoulement. On the contrary: paragraph 75 of the report stated that the risk of deportation was relatively small and that asylum-seekers, even readmitted ones, were generally allowed to continue their journey towards Western Europe. The Chamber had ignored that finding. The Chamber had wrongly cited paragraph 76 of the same report, according to which in 2011 ‑ 2012 irregular migrants returned to Serbia by the Hungarian authorities had on occasion been returned by the Serbian authorities to the Former Yugoslav Republic of Macedonia: the report did not specify whether those irregular migrants were asylum-seekers or economic migrants or whether they had applied for asylum in Serbia at all. In addition, the UNHCR report had been drawn up in 2012, whereas in 2014 Serbian asylum law had been amended and the asylum system and facilities had been upgraded with the financial support of the EU. Furthermore, the Hungarian asylum authorities had given ample reasoning where they disagreed with some of the findings of the reports relied upon by the applicants, with special regard to the 2012 Report of the UNHCR. 115. The applicants had had an opportunity to rebut the safe third country presumption applied in their case but had only made blanket general objections without invoking an individual risk. This was unsurprising having regard to their contradictory statements on the question whether the first applicant had received any documents from the Serbian authorities, as regards human traffickers mentioned by him for the first time at the last hearing and as regards the length of the second applicant’s stay in Serbia and whether or not he had requested asylum there. Contrary to their allegations, the burden of proof had not been reversed as they had not been required to prove the deficiencies of the asylum situation in Serbia in general. The relevant facts of general knowledge had been taken into account by the Hungarian authorities of their own motion without the applicants having to prove them. The applicants had merely been required to state how they had personally been affected by the alleged deficiencies. 116. The fact that the applicants had not been handed over to the Serbian authorities under a readmission procedure but had simply re-entered Serbia had not prevented them from requesting asylum in Serbia had they so wished: they had been in the same legal position as those asylum-seekers who entered illegally from other States. Moreover, the applicants had made it clear that they had not intended at all to seek asylum in Serbia, which had rendered irrelevant the alleged deficiencies of the Serbian asylum system. 117. Finally, as to the risk of treatment contrary to Article 3 on account of the reception conditions in Serbia, there was nothing to suggest that the applicants would have been left without food, hygiene or shelter. The UNHCR had not observed any serious cases of neglect such as have been noted in Greece. Third-party interveners 118. The Bulgarian Government submitted that in expulsion and removal cases, in order to engage the indirect responsibility of the expelling State, the Court had first to analyse the existence of a real risk of ill ‑ treatment in the country of origin. If asylum-seekers were returned to a third “intermediate” country, the Court should analyse, in addition, whether the living and detention conditions for asylum-seekers there reached the threshold of severity under Article 3. Finding a violation without a rigorous examination of the above aspects opened the door to an influx of complaints and risked blocking the asylum system. The Bulgarian Government considered that in cases of expulsion to a State party to the Convention, the responsibility of the expelling State should be engaged only in highly exceptional circumstances, such as in M.S.S. v. Belgium and Greece, as far as Greece is concerned. 119. The Polish Government considered, inter alia, that, as regards claims of a risk of ill-treatment in a country of destination, it was, in principle, for the foreigner to adduce the relevant evidence and to submit proof to the national authorities. The national authorities should not be held liable for a breach of their international obligations if they conducted a diligent assessment of the potential risks, with due regard to the principle of non ‑ refoulement. The Polish Government further submitted that EU Member States were entitled under the Asylum Procedures Directive to enact lists of safe third countries and stressed, in that regard, that the EU legal order secured respect for fundamental rights, including through supervision and control by the EU institutions. 120. The Russian Government stressed that by failing to examine the grounds on which asylum is claimed, the Court was blurring the distinction between migrants and refugees, undermining the protection needed by the latter. 121. The UNHCR provided a summary of the relevant international and EU law regarding the safe third country concept. They submitted, in particular, that that concept could apply where a person could have sought international protection in a “previous” State but had not done so. The removing State had to assess the appropriateness of the removal for each person individually and with full respect for the applicable procedural safeguards, regardless of any general designation of the third country as safe. Such assessment should include questions such as whether the third State would readmit the person, grant him or her access to a fair and efficient procedure for determination of any need of international protection, permit the person to remain and accord him or her treatment in conformity with international law, including the principle of protection from refoulement. 122. In their joint intervention, the Dutch Council for Refugees, the European Council on Refugees and the International Commission of Jurists, offered an overview of the relevant EU and international law on the principle of non-refoulement, the concept of safe third country and deprivation of liberty in the asylum context. The Court’s assessmentHungary’s responsibility for the applicants’ removal Hungary’s responsibility for the applicants’ removal Hungary’s responsibility for the applicants’ removal 123. In so far as the Government submitted that the applicants had left the transit zone voluntarily, which can be understood as an objection to the effect that Hungary was not responsible for their expulsion, the Court observes that there was a binding decision ordering the applicants’ expulsion, and also considers that the manner in which the applicants returned to Serbia indicates that they did not do so of their own free will (see paragraph 40 above). The applicants’ removal from Hungary is therefore imputable to the respondent State. Relevant principles (a) General principles in expulsion cases 124. The prohibition of inhuman or degrading treatment, enshrined in Article 3 of the Convention, is one of the most fundamental values of democratic societies. It is also a value of civilisation closely bound up with respect for human dignity, part of the very essence of the Convention (see Khlaifia and Others v. Italy [GC], no. 16483/12, § 158, 15 December 2016). 125. Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens (see, among many other authorities, Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 67, Series A no. 94, and Mohammadi v. Austria, no. 71932/12, § 58, 3 July 2014). A right to political asylum is not contained in either the Convention or its Protocols (see Sharifi v. Austria, no. 60104/08, § 28, 5 December 2013). 126. Deportation, extradition or any other measure to remove an alien may give rise to an issue under Article 3, however, and hence engage the responsibility of the Contracting State under the Convention, where substantial grounds have been shown for believing that the person in question, if removed, would face a real risk of being subjected to treatment contrary to Article 3 in the receiving country. In such circumstances, Article 3 implies an obligation not to remove the individual to that country (see Soering v. the United Kingdom, 7 July 1989, §§ 90-91, Series A no. 161; Vilvarajah and Others v. the United Kingdom, 30 October 1991, § 103, Series A no. 215; H.L.R. v. France, 29 April 1997, § 34, Reports of Judgments and Decisions 1997-III; Salah Sheekh v. the Netherlands, no. 1948/04, § 135, 11 January 2007; and Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 114, ECHR 2012). 127. The assessment of whether there are substantial grounds for believing that the applicant faces a real risk of being subjected to treatment in breach of Article 3 must necessarily be a rigorous one (see Chahal v. the United Kingdom, 15 November 1996, § 96, Reports 1996 ‑ V) and inevitably involves an examination by the competent national authorities and later by the Court of the conditions in the receiving country against the standards of Article 3 (see Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 67, ECHR 2005-I). These standards imply that the ill-treatment the applicant alleges he or she will face if returned must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this is relative, depending on all the circumstances of the case (see Hilal v. the United Kingdom, no. 45276/99, § 60, ECHR 2001-II). (b) The expelling State’s duty in cases of removal of an asylum seeker to a third country without examination of the asylum claim on the merits 128. In the context of complaints about expulsion of asylum seekers, the Court has dealt with cases concerning a variety of situations, including expulsions to and alleged risks in the applicant’s country of origin (see, for example, F.G. v. Sweden [GC], no. 43611/11, 23 March 2016) and removals to third countries and risks related to such third countries (see, for example, M.S.S. v. Belgium and Greece, cited above, and Tarakhel v. Switzerland [GC], no. 29217/12, ECHR 2014 (extracts)). While the basic principles mentioned in the three preceding paragraphs apply in all circumstances, the underlying issues and, consequently, the content of the expelling State’s duties under the Convention, may differ. 129. In cases where the authorities choose to remove asylum seekers to a third country, the Court has stated that this leaves the responsibility of the Contracting State intact with regard to its duty not to deport them if substantial grounds have been shown for believing that such action would expose them, directly (i.e., in that third country) or indirectly (for example, in the country of origin or another country), to treatment contrary to, in particular, Article 3 (see M.S.S. v. Belgium and Greece, cited above, §§ 342, 343 and 362-68, with the references therein). 130. However, where a Contracting State seeks to remove the asylum seeker to a third country without examining the asylum request on the merits, the State’s duty not to expose the individual to a real risk of treatment contrary to Article 3 is discharged in a manner different from that in cases of return to the country of origin. 131. While in the latter situation the expelling authorities examine whether the asylum claim is well founded and, accordingly, deal with the alleged risks in the country of origin, in the former situation the main issue before them is whether or not the individual will have access to an adequate asylum procedure in the receiving third country. That is so because the removing country acts on the basis that it would be for the receiving third country to examine the asylum request on the merits, if such a request is made to the relevant authorities of that country. In addition to this main question, where the alleged risk of being subjected to treatment contrary to Article 3 concerns, for example, conditions of detention or living conditions for asylum seekers in a receiving third country, that risk is also to be assessed by the expelling State. 132. In respect of Contracting Parties to which the EU Asylum procedures directive applies, its Articles 33, 38 and 43, in the light of recitals 38 ‑ 48 (see paragraphs 47, 49, 53 and 55 above), provide for a possibility to enact national legislation that allows, under certain conditions, to forego an examination of requests for international protection on the merits (i.e., to refrain from examining whether the person qualifies for international protection, and therefore to refrain from dealing with risks in the country of origin) and to undertake instead an examination of admissibility, in the sense of the above-mentioned EU directive (in particular, whether it can reasonably be assumed that another country would conduct the examination on the merits or provide protection). Where the latter option has been chosen and the asylum request has been found to be inadmissible, no examination on the merits takes place in the country which has so decided. 133. As the Court stated in Mohammadi (cited above, § 60), a case concerning removal between two EU Member States and the application of the EU Dublin II Regulation, the expelling State has to make sure that the intermediary country’s asylum procedure affords sufficient guarantees to avoid an asylum-seeker being removed, directly or indirectly, to his country of origin without a proper evaluation of the risks he faces from the standpoint of Article 3 of the Convention (see also M.S.S. v. Belgium and Greece, cited above, § 358; Sharifi, cited above, § 30; T.I. v. the United Kingdom (dec.), no. 43844/98, ECHR 2000-III; and K.R.S. v. the United Kingdom (dec.), no. 32733/08, 2 December 2008). 134. The Court would add that in all cases of removal of an asylum seeker from a Contracting State to a third intermediary country without examination of the asylum requests on the merits, regardless of whether the receiving third country is an EU Member State or not or whether it is a State Party to the Convention or not, it is the duty of the removing State to examine thoroughly the question whether or not there is a real risk of the asylum seeker being denied access, in the receiving third country, to an adequate asylum procedure, protecting him or her against refoulement. If it is established that the existing guarantees in this regard are insufficient, Article 3 implies a duty that the asylum seekers should not be removed to the third country concerned. 135. The respondent Government, supported by the intervening Bulgarian and Russian Governments, was apparently of the view that the above-mentioned obligation did not arise where – allegedly as here – the individuals concerned were not genuine asylum-seekers but migrants who did not risk ill-treatment in their country of origin (see paragraphs 108-111, 118 and 120 above). 136. The Court observes that, with regard to asylum seekers whose claims are unfounded or, even more so, who have no arguable claim about any relevant risk necessitating protection, Contracting States are free, subject to their international obligations, to dismiss their claims on the merits and return them to their country of origin or a third country which accepts them. The form of such examination on the merits will naturally depend on the seriousness of the claims made and the evidence presented. 137. Where a Contracting State removes asylum seekers to a third country without examining the merits of their asylum applications, however, it is important not to lose sight of the fact that in such a situation it cannot be known whether the persons to be expelled risk treatment contrary to Article 3 in their country of origin or are simply economic migrants. It is only by means of a legal procedure resulting in a legal decision that a finding on this issue can be made and relied upon. In the absence of such a finding, removal to a third country must be preceded by thorough examination of the question whether the receiving third country’s asylum procedure affords sufficient guarantees to avoid an asylum-seeker being removed, directly or indirectly, to his country of origin without a proper evaluation of the risks he faces from the standpoint of Article 3 of the Convention. Contrary to the position of the respondent Government, a post ‑ factum finding that the asylum seeker did not run a risk in his or her country of origin, if made in national or international proceedings, cannot serve to absolve the State retrospectively of the procedural duty described above. If it were otherwise, asylum-seekers facing deadly danger in their country of origin could be lawfully and summarily removed to “unsafe” third countries. Such an approach would in practice render meaningless the prohibition of ill-treatment in cases of expulsion of asylum seekers. 138. While the Court acknowledges the respondent Government’s contention that there are cases of abuse by persons who are not in need of protection in their country of origin, it considers that States can deal with this problem without dismantling the guarantees against ill-treatment enshrined in Article 3. It suffices in that regard, if they opt for removal to a third safe country without examination of the asylum claims on the merits, to examine thoroughly whether that country’s asylum system could deal adequately with those claims. In the alternative, as stated above, the authorities can also opt for dismissing unfounded asylum requests after examination on the merits, where no relevant risks in the country of origin are established. (c) Nature and content of the duty to ensure that the third country is “safe” 139. On the basis of the well-established principles underlying its case ‑ law under Article 3 of the Convention in relation to expulsion of asylum ‑ seekers, the Court considers that the above-mentioned duty requires from the national authorities applying the “safe third country” concept to conduct a thorough examination of the relevant conditions in the third country concerned and, in particular, the accessibility and reliability of its asylum system (see M.S.S. v. Belgium and Greece, cited above, §§ 344-59 and §§ 365-68). The Recommendations of the Committee of Ministers of the Council of Europe and its Guidelines cited in paragraphs 61-63 above, as well as Resolution 1471 (2005) of the Council of Europe’s Parliamentary Assembly (see paragraph 64 above), can be relevant in that regard. 140. Furthermore, a number of the principles developed in the Court’s case-law regarding the assessment of risks in the asylum seeker’s country of origin also apply, mutatis mutandis, to the national authorities’ examination of the question whether a third country from which the asylum seeker came is “safe” (see the approach followed in M.S.S. v. Belgium and Greece, cited above, §§ 346-52 and 358-59). 141. In particular, while it is for the persons seeking asylum to rely on and to substantiate their individual circumstances that the national authorities cannot be aware of, those authorities must carry out of their own motion an up-to-date assessment, notably, of the accessibility and functioning of the receiving country’s asylum system and the safeguards it affords in practice. The assessment must be conducted primarily with reference to the facts which were known to the national authorities at the time of expulsion but it is the duty of those authorities to seek all relevant generally available information to that effect ( Sharifi, cited above, §§ 31 and 32). General deficiencies well documented in authoritative reports, notably of the UNHCR, Council of Europe and EU bodies are in principle considered to have been known (see, M.S.S. v. Belgium and Greece, cited above, §§ 346 ‑ 50, see also, mutatis mutandis, F.G. v. Sweden, cited above, §§ 125 ‑ 27). The expelling State cannot merely assume that the asylum seeker will be treated in the receiving third country in conformity with the Convention standards but, on the contrary, must first verify how the authorities of that country apply their legislation on asylum in practice (see M.S.S. v. Belgium and Greece, cited above, § 359). The Court’s task in the light of these principles and the facts of the case 142. As noted above, the content of the expelling State’s duties under Article 3 differs depending on whether the receiving country is the asylum seeker’s country of origin or a third country and, in the latter situation, on whether the expelling State has dealt with the merits of the asylum application or not. As a consequence, the Court’s task is in principle different in all of the above-mentioned categories of cases, subject to the complaints raised by the applicant involved. 143. In the present case, based on section 51 of the Hungarian Asylum Act (see paragraph 41 above), which provided for the inadmissibility of asylum requests in a number of circumstances and reflected the choices made by Hungary in transposing the relevant EU law, the Hungarian authorities did not examine the applicants’ asylum requests on the merits, that is to say, whether the applicants risked ill-treatment in their country of origin, Bangladesh, but declared them inadmissible on the basis that they had come from Serbia, which, according to the Hungarian authorities was a safe third country and, therefore, could take in charge the examination of the applicants’ asylum claims on the merits (see paragraphs 23, 34 and 36 above). 144. As a consequence, the thrust of the applicants’ complaints under Article 3 (see paragraph 100 above) is that they were removed despite clear indications that they would not have access in Serbia to an adequate asylum procedure capable of protecting them against refoulement. The Court’s task in the present case is, above all, to deal with this main complaint (see, for a similar approach, Babajanov v. Turkey, no. 49867/08, § 43 in fine, 10 May 2016, and Sharifi, cited above, § 33). 145. Since the Hungarian authorities’ impugned decision to remove the applicants to Serbia was unrelated to the situation in Bangladesh and the merits of the applicants’ asylum claims, it is not the Court’s task to examine whether the applicants risked ill-treatment in Bangladesh. Such analysis would be unrelated to the question whether the respondent State discharged its procedural obligations under Article 3 in the present case. 146. In this regard, the Court is not oblivious of the fact that in some cases of removal of asylum seekers to third intermediary countries without examination of the merits of the asylum claim by the removing State, it has included text mentioning that the applicants’ claim about risks in their countries of origin were arguable, which could be seen as the Court taking a stand, in the context of Article 3 of the Convention, on whether or not the risks invoked in respect of the country of origin were arguable (see, among several others, T.I. v. the United Kingdom (dec.), cited above and M.S.S. v. Belgium and Greece, cited above, § 344; but see also the opposite approach in Mohammadi, cited above, §§ 64-75, Sharifi, cited above, §§ 26 ‑ 39; Tarakhel, cited above, §§ 93-122; and Mohammed Hussein and Others v. the Netherlands and Italy (dec.), no. 27725/10, §§ 62-79, 2 April 2013). 147. In the present case the Grand Chamber, having had the benefit of the parties’ submissions devoted specifically to this question, considers that it is not for the Court to act as a court of first instance and deal with aspects of the asylum claims’ merits in a situation where the defendant State has opted – legitimately so – for not dealing with those and at the same time the impugned expulsion is based on the application of the “safe third country” concept. The question whether there was an arguable claim about Article 3 risks in the country of origin is relevant in cases where the expelling State dealt with these risks. 148. It follows that, having regard to the facts of the case and the applicants’ complaints regarding the allegedly deficient approach of the Hungarian authorities, the Court must examine: 1) whether these authorities took into account the available general information about Serbia and its asylum system in an adequate manner and of their own initiative and, 2) whether the applicants were given sufficient opportunity to demonstrate that Serbia was not a safe third country in their particular case. 149. Finally, the Court may also have to address the applicants’ complaint that the Hungarian authorities failed to take into consideration the allegedly inadequate reception conditions for asylum seekers in Serbia (see, for example, Tarakhel, cited above, § 105). 150. The Court’s approach in examining these questions must be guided by the principle, stemming from Article 1 of the Convention, according to which the primary responsibility for implementing and enforcing the guaranteed rights and freedoms is laid on the national authorities. The machinery of complaint to the Court is thus subsidiary to national systems safeguarding human rights. It is not the Court’s task to substitute its own assessment of the facts for that of the domestic courts. The Court must be satisfied, however, that the assessment made by the authorities of the Contracting State is adequate and sufficiently supported by domestic materials as well as by materials originating from other reliable and objective sources (see, mutatis mutandis, F.G. v. Sweden, cited above, §§ 117 and 118). Whether the Hungarian authorities complied with their procedural duty under Article 3 151. The Court observes that in the applicants’ case the Hungarian authorities relied on a list of “safe third countries” established by Government decree no. 191/2015. (VII.21.) (see paragraph 44 above). The effect of this list was to put in place a presumption that the listed countries were safe. 152. The Convention does not prevent Contracting States from establishing lists of countries which are presumed safe for asylum seekers. Member States of the EU do so, in particular, under the conditions laid down by Articles 38 and 39 of the Asylum Procedures Directive (see paragraphs 53 et seq. above). The Court considers, however, that any presumption that a particular country is “safe”, if it has been relied upon in decisions concerning an individual asylum seeker, must be sufficiently supported at the outset by an analysis of the relevant conditions in that country and, in particular, of its asylum system. 153. The presumption at issue in the present case was put in place in July 2015, when Hungary changed its previous position and declared Serbia to be a safe third country. The Government’s submissions before the Grand Chamber appear to confirm that the grounds for this change consisted exclusively of the following: Serbia was bound by the relevant international conventions; as a candidate to become EU Member State it benefitted from assistance in improving its asylum system; and there was an unprecedented wave of migration and measures had to be taken (see paragraph 112 above). 154. The Court notes, however, that in their submissions to the Court the respondent Government have not mentioned any facts demonstrating that the decision ‑ making process leading to the adoption of the presumption in 2015 involved a thorough assessment of the risk of lack of effective access to asylum proceedings in Serbia, including the risk of refoulement. 155. The Court is mindful of the challenge faced by the Hungarian authorities during the relevant period in 2015, when a very large number of foreigners were seeking international protection or passage to western Europe at Hungary’s borders. However, the absolute nature of the prohibition of ill ‑ treatment enshrined in Article 3 of the Convention mandates an adequate examination of the risks in the third country concerned. 156. Turning to the individual assessment made by the asylum authority and the national court in the applicants’ cases, the Court observes that their decisions referred to the above mentioned presumption but also to widely available information about certain alleged risks in Serbia. They further dealt with the question whether there were any specific individual risks for the applicants (see paragraphs 34 and 36 above). 157. The Court also observes that the applicants, who were legally represented, had an opportunity to make submissions in the proceedings against both the first and the second decisions of the asylum authority. The applicants’ lawyers made detailed written and oral submissions to the national court. Throughout the asylum proceedings, the applicants could communicate with the authorities and the court via an interpreter in Urdu, a language they understood (see paragraphs 26-28 and 30-35 above). In those circumstances the Court is not prepared to attach significant weight to the applicants’ arguments regarding time-limits and alleged shortcomings of a technical nature. 158. The Court is not convinced, however, by the respondent Government’s argument that the administrative authorities and the national court thoroughly examined the available general information concerning the risk of the applicants’ automatic removal from Serbia without effective access to an asylum procedure. In particular, it does not appear that the authorities took sufficient account of consistent general information that at the relevant time asylum-seekers returned to Serbia ran a real risk of summary removal to the Republic of North Macedonia and then to Greece and, therefore, of being subjected to conditions incompatible with Article 3 in Greece. 159. While it is true that, as argued by the respondent Government, statistics about the rate of successful asylum applications in Serbia or similar data are distorted by the fact that many asylum-seekers do not remain in Serbia and seek to reach Western Europe, there was other reliable information which did not seem to have been taken into consideration by the Hungarian authorities. In particular, a significant risk of refoulement from Serbia transpired from the findings of the UNHCR in their report of August 2012 (confirmed in the report of May 2016) (see paragraph 73 above) and other available sources (see paragraphs 69 and 77 above): lack of administrative capacity and resources in Serbia at the relevant time to assess asylum claims in accordance with international standards and to protect against refoulement; accounts of cases where aliens re ‑ entering Serbia from Hungary were put on buses directly to the border with North Macedonia; accounts of cases of denials of the right to apply for asylum in Serbia to individuals readmitted from Hungary; information about an automatic application of Serbia’s list of safe third countries to those who have transited, inter alia, through North Macedonia and Greece. The information concerning the above serious risks was confirmed in later sources (see paragraphs 68 and 75 above). 160. In the Court’s view the asylum authority and the national court made only passing references to the UNHCR report and other relevant information, without addressing in substance or in sufficient detail the concrete risks pinpointed there and, in particular, the risk of arbitrary removal in the two applicants’ specific situation (see paragraphs 34 and 36 above). Although the applicants were able to make detailed submissions in the domestic proceedings and were legally represented, the Court is not convinced that this meant that the national authorities had given sufficient attention to the risks of denial of access to an effective asylum procedure in Serbia. 161. It is significant, furthermore, that the risk of summary removal from Serbia to other countries could have been alleviated in this particular case if the Hungarian authorities had organised the applicants’ return to Serbia in an orderly manner or through negotiations with the Serbian authorities. However, the applicants were not returned on the strength of an arrangement with the Serbian authorities but were made to cross the border into Serbia without any effort to obtain guarantees (see paragraph 40 above and criterion “d” of the 2009 Guidelines of the Committee of Ministers of the Council of Europe in paragraph 63 above ). This exacerbated the risk of denial of access to an asylum procedure in Serbia and, therefore, of summary removal from that country to North Macedonia and then to Greece (see, for example, Tarakhel, cited above, §§ 120 ‑ 22, where in the individual circumstances of the case the Court considered decisive, regarding the potential violation of Article 3, for the Swiss authorities to obtain guarantees from the Italian authorities). 162. Finally, as regards the Government’s argument that all parties to the Convention, including Serbia, North Macedonia and Greece, have the same obligations and that Hungary should not bear an additional burden to compensate for their deficient asylum systems, the Court considers that this is not a sufficient argument to justify a failure by Hungary, which opted for not examining the merits of the applicants’ asylum claims, to discharge its own procedural obligation, stemming from the absolute nature of the prohibition of ill-treatment under Article 3 of the Convention (see the Court’s approach in M.S.S. v. Belgium and Greece, cited above; see also Tarakhel, cited above, §§ 104 and 105, and Paposhvili v. Belgium [GC], no. 41738/10, § 193, 13 December 2016). 163. In sum, having regard, in particular, to the fact that there was an insufficient basis for the Government’s decision to establish a general presumption concerning Serbia as a safe third country, that in the applicants’ case the expulsion decisions disregarded the authoritative findings of the UNHCR as to a real risk of denial of access to an effective asylum procedure in Serbia and summary removal from Serbia to North Macedonia and then to Greece, and that the Hungarian authorities exacerbated the risks facing the applicants by inducing them to enter Serbia illegally instead of negotiating an orderly return, the Court finds that the respondent State failed to discharge its procedural obligation under Article 3 of the Convention to assess the risks of treatment contrary to that provision before removing the applicants from Hungary. 164. These considerations are sufficient for the Court to find that there has been a violation of Article 3 of the Convention. 165. In the light of this finding the Court considers that it is not necessary to examine whether Article 3 was violated on the additional ground (see paragraph 149 above) that the Hungarian authorities allegedly failed to take into consideration the risk of the applicants being subjected to inadequate reception conditions for asylum seekers in Serbia. ALLEGED VIOLATION OF ARTICLE 13 IN CONJUNCTION WITH ARTICLE 3 CONCERNING THE DOMESTIC REMEDIES AGAINST THE APPLICANTS’ REMOVAL TO SERBIA 166. The applicants complained that the domestic remedies concerning their expulsion were ineffective and that therefore there was a violation of Article 13 of the Convention in conjunction with its Article 3. Article 13 reads as follows: “Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 167. In respect of this complaint, the Chamber decided that it was not necessary to examine its admissibility or merits (see paragraphs 126 and 127 of the Chamber judgment). 168. As a consequence, the parties apparently disagree as to whether the complaint at issue falls within the scope of the case before the Grand Chamber, having regard to the fact that it has not been declared admissible by the Chamber. The applicants consider that there is no obstacle to the Grand Chamber examining this complaint. In their observations, the Government only dealt with the complaints declared admissible by the Chamber. In their oral submissions, they noted that the complaint at issue had never been communicated to them. 169. The situation in the present case is peculiar in that the Chamber did not rule on the admissibility of the complaint at issue. The question arises, therefore, whether a complaint which has neither been rejected as inadmissible, nor declared admissible by the Chamber falls within the scope of the case before the Grand Chamber in proceedings under Article 43 of the Convention. 170. Under the Convention system as it existed prior to the entry into force of Protocol No. 11, when a separate body, the former Commission, examined the admissibility of applications, the Court’s approach to the scope of the case before it was expressed in the following terms (see Guzzardi v. Italy, 6 November 1980, § 106, Series A no. 39): “The compass of the ‘case’ is delimited ... by the admissibility decision. Subject to Article 29 [as in force at the relevant time] and, possibly, a partial striking out of the list, there is no room under the Convention for a subsequent narrowing of the scope of the dispute which may lead to a judicial decision. Within the framework so traced, the Court may take cognisance of all questions of fact or of law arising in the course of the proceedings instituted before it; the only matter falling outside its jurisdiction is the examination of complaints held by the Commission to be inadmissible.” 171. Following the entry into force of Protocol No. 11 to the Convention, the question of the scope of the case before the Grand Chamber in proceedings under Article 43 was dealt with for the first time in K. and T. v. Finland [GC] (no. 25702/94, §§ 137-41, ECHR 2001-VII) in the context of the parties’ position that the Grand Chamber should only deal with complaints in respect of which referral had been requested. The Grand Chamber found that “the ‘case’ referred to it under Article 43 of the Convention embraces all aspects of the application previously examined by the Chamber in its judgment, and not only the serious ‘question’ or ‘issue’ at the basis of the referral” (ibid., § 140). The Court also added “for the sake of clarification” that the case referred to the Grand Chamber “is the application as it has been declared admissible” (ibid., § 141). 172. This wording has been used in a number of later cases as well (see Üner v. the Netherlands [GC], no. 46410/99, § 41, ECHR 2006-XII; D.H. and Others v. the Czech Republic [GC], no. 57325/00 § 109, ECHR 2007 ‑ IV; and Kovačić and Others v. Slovenia [GC], nos. 44574/98 and 2 others, § 194, 3 October 2008). The Court has also stated that the scope of the case referred to the Grand Chamber is “delimited by the Chamber’s decision on admissibility” (see Göç v. Turkey [GC], no. 36590/97, §§ 35-37, ECHR 2002-V; Perna v. Italy [GC], no. 48898/99, §§ 23-24, ECHR 2003-V; and Azinas v. Cyprus [GC], no. 56679/00, § 32, ECHR 2004-III). 173. In a significant number of referral cases, the Grand Chamber has had to deal with requests from applicants to re-examine complaints declared inadmissible by the Chamber. In judgments concerning such cases the Court has often added more specific wording, stating that the Grand Chamber “cannot examine those parts of the case which have been declared inadmissible” (see Kurić and Others v. Slovenia [GC], no. 26828/06, § 234, ECHR 2012 (extracts), and Murray, cited above, § 86). In some judgments (see Sisojeva and Others v. Latvia (striking out) [GC], no. 60654/00, § 61, ECHR 2007-I; Kurić and Others, cited above, § 235; and Herrmann v. Germany [GC], no. 9300/07, § 38, 26 June 2012), the Court has also stated that “the Grand Chamber may examine the case in its entirety in so far as it has been declared admissible” or that it “may examine the case only in so far as it has been declared admissible” (see Gillberg v. Sweden [GC], no. 41723/06, §§ 53-55, 3 April 2012; Al ‑ Dulimi and Montana Management Inc. v. Switzerland [GC], no. 5809/08, § 78, 21 June 2016; and Zubac v. Croatia [GC], no. 40160/12, § 56, 5 April 2018). It should be noted, however, that this wording has been used in the context of complaints declared inadmissible by the Chamber (almost all such cases) or in relation to a request for the re-examination of the panel’s referral decision (see Pisano v. Italy (striking out) [GC], no. 36732/97, § 27, 24 October 2002). It appears not to have been used in respect of complaints the admissibility of which had not been examined by the Chamber. 174. The above case-law analysis appears to demonstrate that the fact that the Court has repeatedly mentioned the Chamber’s admissibility decision as the act delimiting the scope of the case before the Grand Chamber in referral proceedings is related partly to the Convention system as it existed prior to the entry into force of Protocol No. 11 and partly to the fact that in the vast majority of the relevant judgments the Grand Chamber had to deal with requests to re-examine complaints declared inadmissible. It cannot be said that this wording was intended to mean that the Grand Chamber cannot examine complaints that were neither rejected as inadmissible nor declared admissible by the Chamber. 175. The Court also notes that the exclusion of complaints declared inadmissible from the scope of the case before the Grand Chamber may be seen as flowing from the settled case-law according to which a decision to declare a complaint inadmissible is final (see, for example, Budrevich v. the Czech Republic, no. 65303/10, § 73, 17 October 2013). By contrast, where complaints which have not been declared inadmissible are concerned, there is no final decision closing their examination. 176. The Court recalls, in addition, that it is the master of the legal characterisation of the facts in the case (see Guerra and Others v. Italy, 19 February 1998, § 44, Reports 1998 ‑ I, and Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 114, 20 March 2018) and that, furthermore, it may decide not to examine a particular complaint separately, considering that it is subsumed or otherwise closely linked to a complaint that has already been dealt with. Indeed, this was the basis for the Chamber’s decision in the present case not to examine the admissibility and merits of the complaint under Article 13 in conjunction with Article 3 concerning the domestic remedies against the applicants’ removal to Serbia. 177. In the Court’s view, therefore, any excessively rigid approach to delimiting the scope of the case before the Grand Chamber may adversely affect its role as the master of the legal characterisation of the facts of the case with regard to complaints that have not been declared inadmissible. Furthermore, considering that a complaint that has not been declared inadmissible by the Chamber does not fall within the scope of the case before the Grand Chamber would amount to a de facto rejection of such a complaint as inadmissible. However, such an outcome cannot be accepted as it would prevent the Grand Chamber, without any reasons given by the Chamber, from assessing the question of admissibility of the complaint at issue in a situation where the Chamber has refrained from doing so. 178. The Court finds, therefore, that the complaint under Article 13 in conjunction with Article 3 regarding the alleged procedural shortcomings in the examination of the applicants’ asylum request and the appeals against the asylum authority’s decisions falls within the scope of the case before the Grand Chamber. 179. However, in the present case, having found a violation of Article 3 of the Convention (see paragraphs 163 and 164 above), the Grand Chamber agrees with the Chamber that, in view of the fact that the alleged procedural shortcomings in the examination of the applicants’ asylum request and the appeals against the asylum authority’s decisions have been sufficiently examined under that Article, it is not necessary to examine the admissibility and merits of the complaint under Article 13 regarding those same alleged shortcomings. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION CONCERNING THE CONDITIONS IN THE TRANSIT ZONE 180. The applicants alleged that the conditions in which they spent 23 days in the Röszke transit zone had amounted to inhuman and degrading treatment contrary to Article 3 of the Convention. Before the Grand Chamber, they also relied on Article 8 of the Convention in respect of the same complaint. 181. The Court considers that the above complaint falls to be examined under Article 3 only. This provision reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” The Chamber judgment 182. The Chamber, noting, in particular, the findings of the Committee for the Prevention of Torture concerning the satisfactory material conditions at the zone and the relatively short period spent by the applicants there, found that there had been no violation of Article 3. The parties’ submissions 183. The applicants considered that the Chamber had attached undue weight to the general material conditions, failed to have regard to the fact that the CPT had found them acceptable for a very short stay only and had not sufficiently taken into consideration the applicants’ vulnerability. In respect of the latter, the applicants submitted to the Grand Chamber additional information, alleging, in particular, harsh conditions and ill ‑ treatment endured by the first applicant during the 1990’s and until 2010 or 2011 in Pakistan, Afghanistan, Iran and Bangladesh and, as regard the second applicant, in Pakistan, Dubai, Iran and Turkey between 2010 and 2013 (see paragraphs 10 and 11 above). Alternatively, the applicants invited the Grand Chamber to examine under Article 8 their complaint of the conditions in the transit zone and find a violation of that provision. 184. The respondent Government agreed with the Chamber’s application of the threshold of severity rule and its finding that the applicants were not more vulnerable than any other adult asylum-seeker. Distinguishing the present case from the situation that led the Court to find violations of Article 3 in M.S.S. v. Belgium and Greece, the Hungarian Government pointed out that the applicants’ basic needs, such as food, hygiene, shelter and access to medical aid had been taken care of. Even if those conditions were considered to fall short of some of the requirements of the EU’s Reception Conditions Directive, that would not constitute a violation of Article 3. The Government warned against elevating the requirements of that provision in the reception context beyond the requisite catering for the most basic human needs, given, in particular, that transit zones provide only temporary accommodation. As regards the applicants’ allegations concerning their suffering in a number of Asian countries, the Government observed that they were articulated for the first time before the Grand Chamber and were unverifiable. 185. Some of the intervening third parties also provided relevant comments. The UNHCR submitted factual information about the Rӧszke transit zone and summaries of relevant law and international standards regarding reception of asylum-seekers. In their joint intervention, the five Italian scholars dealt with the concept of vulnerability with emphasis on international and human rights law. They demonstrated that variants of this concept had been used in different contexts without a definition of vulnerability and urged the Court to develop relevant principles in this regard. The Court’s assessment 186. It is undisputed that while at the Rӧszke transit zone, the applicants were fully dependent on the Hungarian authorities for their most basic human needs and were under their control. 187. In these circumstances, it was the responsibility of the Hungarian authorities not to subject them to such conditions as would constitute inhuman and degrading treatment contrary to Article 3 of the Convention (see M.S.S. v. Belgium and Greece, cited above, §§ 216 ‑ 22 and 263). 188. According to the Court’s well-established case-law, ill ‑ treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of that level is relative and depends on all the circumstances of the case, principally the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim. In the context of confinement and living conditions of asylum-seekers, the Court has summarised the relevant general principles in the case of Khlaifia and Others (cited above, §§ 158-69). 189. The Grand Chamber endorses the Chamber’s analysis in the present case regarding the physical conditions in which the applicants lived while confined to the transit zone. The Chamber stated the following, in particular, in paragraphs 84 and 85 of its judgment: “In its Report to the Hungarian Government on the visit to Hungary carried out from 21 to 27 October 2015, that is, soon after the applicants had left the transit zone, the CPT described acceptable conditions regarding the accommodation containers in use in Röszke. It nevertheless suggested that if foreign nationals were to be held in a transit zone for longer periods, the maximum capacity of the accommodation containers should be reduced and they should be equipped with some basic furniture. ... For 23 days, the applicants were confined to an enclosed area of some 110 square metres and, adjacent to that area, they were provided a room in one of the several dedicated containers. According to the CPT, the ground surface of these rooms was 13 square metres. The applicants’ room contained beds for five but it appears that at the material time they were the only occupants. Sanitary facilities were provided in separate containers; and the CPT found that their standard did not call for any particular comment. The applicants submitted that no medical services were available; however, a psychiatrist was granted access to them; and the CPT gained a generally favourable impression of the health-care facilities. The applicants were provided three meals daily. Although they complained of the absence of recreational and communication facilities, there is no indication that the material conditions were poor, in particular that there was a lack of adequate personal space, privacy, ventilation, natural light or outdoor stays.” 190. The fact that the hygienic conditions were good and that persons staying at the Röszke zone were provided with food of a satisfactory quality and medical care if needed, and could spend their time outdoors was also confirmed at a later date, in the report of 13 October 2017 of the Special Representative of the Secretary General of the Council of Europe (see paragraph 67 above). 191. Turning to the applicants’ vulnerability argument, the Court must examine the available evidence to establish whether, as alleged by them, they could be considered particularly vulnerable and, if so, whether the conditions in which they stayed at the Rӧszke transit zone in September and October 2015 were incompatible with any such vulnerability to the extent that these conditions constituted inhuman and degrading treatment with specific regard to the applicants. 192. The Grand Chamber endorses the Chamber’s view that while it is true that asylum-seekers may be considered vulnerable because of everything they might have been through during their migration and the traumatic experiences they were likely to have endured previously (see M.S.S. v. Belgium and Greece, cited above, § 232), there is no indication that the applicants in the present case were more vulnerable than any other adult asylum-seeker confined to the Rӧszke transit zone in September 2015 (see paragraph 87 of the Chamber judgment). In particular, their allegations about hardship and ill-treatment endured in Pakistan, Afghanistan, Iran, Dubai and Turkey concern a period of time which ended in 2010 or 2011 for the first applicant and in 2013 for the second applicant (see paragraphs 10 and 11 above). Also, the Court does not consider that the psychiatrist’s opinion (see paragraph 30 above) submitted by the applicants is decisive: having regard to its context and content, and taking into consideration that the applicants stayed at the Rӧszke transit zone for the relatively short period of 23 days, the psychiatrist’s observations cannot lead to the conclusion that the otherwise acceptable conditions at the Rӧszke transit zone were particularly ill-suited in the applicants’ individual circumstances to such an extent as to amount to ill-treatment contrary to Article 3. 193. The Court also considers that even if the applicants must have been affected by the uncertainty as to whether they were in detention and whether legal safeguards against arbitrary detention applied, the shortness of the relevant period and the fact that the applicants were aware of the procedural developments in the asylum procedure, which unfolded without delays, indicate that the negative effect of any such uncertainty on them must have been limited. 194. In sum, taking into consideration, in particular, the material conditions at the zone, the length of the applicants’ stay there, and the possibilities for human contact with other asylum-seekers, UNHCR representatives, NGOs and a lawyer, the Court finds that the situation complained of did not reach the minimum level of severity necessary to constitute inhuman treatment within the meaning of Article 3 of the Convention. Therefore, there has been no violation of that provision. ALLEGED VIOLATIONS OF ARTICLE 5 §§ 1 AND 4 OF THE CONVENTION 195. The applicants complained that they were confined to the transit zone in violation of those provisions, which provide, in so far as relevant: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition. ... 4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. ...” The Chamber judgment 196. The Chamber held that the applicants’ confinement to the transit zone constituted a de facto deprivation of liberty. It took into account the fact that the applicants were placed in a guarded compound which could not be accessed from the outside and which they could not leave towards Hungary, nor towards Serbia without forfeiting their asylum claims and running the risk of refoulement. As to the merits of the complaint under Article 5 § 1, the Chamber held that the applicants’ detention could not be considered “lawful”, as the underlying domestic rules were not sufficiently precise and foreseeable and the detention had occurred de facto, as a matter of practical arrangement, without a formal decision and therefore without providing reasons. The Chamber also found a violation of Article 5 § 4 because, in the absence of a decision which they could have challenged, the applicants could not seek any judicial review of their detention. The parties’ submissionsThe applicants The applicants The applicants 197. In relation to the applicability of Article 5, the applicants emphasised that the fact that they had entered the transit zone of their own free will was not relevant since, once there, they could not return to Serbia, where they were not welcome and risked chain-refoulement without an examination of their asylum requests on the merits. 198. The applicants submitted that the Government’s allegation that they were not “genuine” asylum-seekers as they did not risk persecution in Bangladesh should not have any bearing on the question whether they were detained unlawfully in Hungary. As registered asylum-seekers they had the right to wait for a decision under adequate procedural safeguards, including as regards detention. During the waiting period they were not allowed to leave the transit zone in the direction of Hungary and could not do so in the direction of Serbia as they would have been refused re-entry. The applicants submitted written statements by staff of an NGO who had witnessed the Hungarian authorities’ refusal to admit back, through the door they had just passed, asylum-seekers who had received an inadmissibility decision, had been told to leave in the direction of Serbia, then learned of the possibility to appeal and wanted to re-enter and appeal [6]. 199. As regards compliance with Article 5 § 1, the applicants submitted that section 71/A of the Asylum Act, invoked by the Government as the legal basis for their detention, did not meet the requirement of quality of the law. The total absence of clear, precise and foreseeable laws on the conditions and procedural safeguards relating to their confinement to the transit zone as a form of detention rendered it devoid of legal basis. They were at no stage served with a decision ordering their deprivation of liberty. However, the authorities had at their disposal legal means to impose detention if they considered it necessary for the proper functioning of the asylum system, including prevention of forum shopping. 200. As regards Article 5 § 4, the applicants disputed the Government’s assertion that the Szeged court could examine the lawfulness of the choice to apply the transit zone border procedure and thus secure the requisite review of lawfulness. That court had not examined the issue of the applicability of the border procedure and it could not in any way review the lawfulness of the placement in the transit zone as a measure of deprivation of liberty. The respondent Government 201. According to the respondent Government, the applicants were free to leave in the direction of Serbia and, moreover, had at their disposal alternative routes via Serbia to their preferred destination – Western Europe, as evidenced by the fact that they found such routes. While the applicants were not free to move in Hungary, this was inherent in normal border procedures. The length of the pre-entry waiting period depended on the complexity of the case, the cooperation of the asylum-seekers and the consistency of their statements. For the duration of this process, the applicants were provided with decent waiting conditions in a transit zone. Such zones should not be confused with reception centres for refugees whose entitlement to legal protection has been established. 202. The applicants did not have a “right” to enter Hungary. A right to admission can be inferred in international law only in respect of refugees arriving directly from the State of persecution, or in case of a direct threat to their lives and physical integrity. In the light of Article 1 of the Convention, its Article 5 should be interpreted as meaning that when individuals are not brought within the jurisdiction of the State but voluntarily apply for admission to that jurisdiction, the resulting “confinement” to a waiting zone (that they are free to leave) prior to admission is not a de facto detention but an inherent limitation on the freedom of movement. Such a limitation is not arbitrary if the denial of admission is not arbitrary. Therefore, there is no issue under Article 5 separate from the denial of admission, examined in the present case under Article 3. 203. The Government further submitted that border transit zones are fundamentally different from airport transit zones. The latter are an enclave deep into the territory of the State, whereas border transit zones are open towards the territory of the neighbouring State from which the applicants have arrived. In contrast to the case of Amuur v. France (25 June 1996, Reports 1996 ‑ III), the applicants’ return to Serbia did not require negotiations with the Serbian authorities, who do not stop aliens from re-entering, and did not involve financial or practical obstacles. Unsuccessful asylum-seekers routinely leave the zone. The fact that the applicants did eventually leave for Serbia without adverse consequences indicates that they were not in detention in Hungary. Unlike in Amuur, the applicants’ freedom to leave the zone was not theoretical as they could return to a State bound by the Geneva Convention and the ECHR, offering comparable protection. 204. The Government further considered that the applicants did not run the risk of refoulement to a persecuting country because they were not persecuted in their own country of origin or in the transit countries. Moreover, by returning to Serbia they did not waive international protection because such protection under the Geneva Convention was not denied to asylum-seekers having voluntarily returned to Serbia (in case they requested such protection and remained in Serbia until the delivery of the decision). The Chamber had failed to distinguish the present case from Riad and Idiab v. Belgium (nos. 29787/03 and 29810/03, § 68, 24 January 2008), where the applicants had been confined to a transit zone not upon their arrival in the country but more than one month later, by decision of the authorities. However, no Hungarian authority compelled the applicants to enter the transit zone. 205. The Government submitted that the applicants’ accommodation in the transit zone had a legal basis in Hungarian law, including guarantees against arbitrariness and aimed at preventing an unauthorised entry in accordance with Article 5 § 1(f). In particular, section 71/A of the Asylum Act read together with section 15/A of the Act on State Borders provided for the examination of asylum applications in transit zones for temporary accommodation. Section 71/A § 2 made clear that in border procedures the applicants did not have the right to freedom of movement in Hungary. As a guarantee against arbitrariness, the law limited border procedure and stay in the transit zone to four weeks: according to § 4 of section 71/A, failing a decision within four weeks, entry to the territory of Hungary was to be granted. As a further guarantee against arbitrariness, border proceedings were not applicable to persons eligible for preferential treatment, such as vulnerable persons. 206. There was no violation of Article 5 § 4 since the restriction of the applicants’ liberty was subject to judicial review as part of the judicial review of the asylum authority’s decision on the applicability of the rules on border procedures, including on the applicants’ ineligibility to preferential treatment. The first judicial review in the applicants’ case was carried out within six days of their arrival. Third-party interveners 207. The Polish Government considered that placement in a facility from which a foreigner may freely move should not be automatically treated as de facto deprivation of liberty. They also noted that the present case concerned the practice of EU Member States in the difficult times of the migration crisis and stressed, in that regard, that the EU legal order secures respect for fundamental rights, including through supervision and control by the EU institutions. 208. The Russian Government criticised the Amuur judgment for having introduced a new criterion in the assessment whether the deprivation of liberty was arbitrary or not: the “place and conditions” of detention. No such a criterion was to be found in Article 5. Only Article 3 was concerned with conditions of detention. Furthermore, the Court’s approach wrongly assimilated refusal to allow entry to the State territory to a deprivation of liberty. In the Russian Government’s view, by failing to make distinctions based on the grounds on which asylum is claimed, the Court was blurring the distinction between migrants and refugees, undermining the protection the latter need. 209. The UNHCR provided factual information about the Rӧszke transit zone and summaries of the relevant Hungarian law, EU law and international standards regarding reception of asylum-seekers. The Court’s assessmentApplicability Applicability Applicability 210. It is undisputed that under Hungarian law the applicants’ stay at the Röszke transit zone was not considered as detention. The parties disagree, however, on whether it nevertheless constituted a de facto deprivation of liberty and, consequently, whether Article 5 of the Convention applied. (a) Relevant principles 211. In proclaiming the “right to liberty”, paragraph 1 of Article 5 contemplates the physical liberty of the person. Accordingly, it is not concerned with mere restrictions on liberty of movement, which are governed by Article 2 of Protocol No. 4, with regard to persons lawfully within the territory of the State. Although the process of classification into one or other of these categories sometimes proves to be no easy task, in that some borderline cases are a matter of pure opinion, the Court cannot avoid making the selection upon which the applicability or inapplicability of Article 5 depends (see Khlaifia and Others, cited above, § 64, with the references therein). 212. In order to determine whether someone has been “deprived of his liberty” within the meaning of Article 5, the starting-point must be his or her specific situation in reality and account must be taken of a whole range of factors such as the type, duration, effects and manner of implementation of the measure in question (see Nada v. Switzerland [GC], no. 10593/08, § 225, ECHR 2012, and Gahramanov v. Azerbaijan (dec.), no. 26291/06, § 40, 15 October 2013). The difference between deprivation and restriction of liberty is one of degree or intensity, and not one of nature or substance (see De Tommaso v. Italy [GC], no. 43395/09, § 80, 23 February 2017, with the references therein; see also Kasparov v. Russia, no. 53659/07, § 36, 11 October 2016). 213. The Court considers that in drawing the distinction between a restriction on liberty of movement and deprivation of liberty in the context of the situation of asylum seekers, its approach should be practical and realistic, having regard to the present-day conditions and challenges. It is important in particular to recognise the States’ right, subject to their international obligations, to control their borders and to take measures against foreigners circumventing restrictions on immigration. 214. The question whether staying at airport international zones amounts to deprivation of liberty has been dealt with in a number of cases (see, among those: Amuur, cited above, § 43; Shamsa v. Poland, nos. 45355/99 and 45357/99, § 47, 27 November 2003; Mogoş v. Romania (dec.), no. 20420/02, 6 May 2004; Mahdid and Haddar v. Austria (dec.), no. 74762/01, ECHR 2005-XIII (extracts); Riad and Idiab, cited above, § 68; Nolan and K. v. Russia, no. 2512/04, §§ 93-96, 12 February 2009; and Gahramanov, cited above, §§ 35-47). 215. The Court stated the following in the case of Amuur, at § 43: “Holding aliens in the international zone does indeed involve a restriction upon liberty, but one which is not in every respect comparable to that which obtains in centres for the detention of aliens pending deportation. Such confinement, accompanied by suitable safeguards for the persons concerned, is acceptable only in order to enable States to prevent unlawful immigration while complying with their international obligations, particularly under the 1951 Geneva Convention Relating to the Status of Refugees and the European Convention on Human Rights. States’ legitimate concern to foil the increasingly frequent attempts to circumvent immigration restrictions must not deprive asylum-seekers of the protection afforded by these conventions. Such holding should not be prolonged excessively, otherwise there would be a risk of it turning a mere restriction on liberty - inevitable with a view to organising the practical details of the alien’s repatriation or, where he has requested asylum, while his application for leave to enter the territory for that purpose is considered - into a deprivation of liberty. In that connection account should be taken of the fact that the measure is applicable not to those who have committed criminal offences but to aliens who, often fearing for their lives, have fled from their own country. Although by the force of circumstances the decision to order holding must necessarily be taken by the administrative or police authorities, its prolongation requires speedy review by the courts, the traditional guardians of personal liberties. Above all, such confinement must not deprive the asylum-seeker of the right to gain effective access to the procedure for determining refugee status.” 216. The applicability of Article 5 has also been examined with regard to stays in reception centres for the identification and registration of migrants, located on islands at the Italian and Greek shores (see Khlaifia and Others, cited above, §§ 65-72, which concerns irregular migrants, and J.R. and Others v. Greece, no. 22696/16, 25 January 2018, which concerns asylum-seekers). In the latter case, where initially an official detention order had been issued in respect of the applicants, the Court took into consideration, in particular, changes in the applicants’ legal situation under domestic law and a change in the regime at the reception centre from “closed” to “semi-open” in order to distinguish between two periods, the first of which attracted the application of Article 5 and the second did not (ibid., §§ 85-87). 217. In determining the distinction between a restriction on liberty of movement and deprivation of liberty in the context of confinement of foreigners in airport transit zones and reception centres for the identification and registration of migrants, the factors taken into consideration by the Court may be summarised as follows: i) the applicants’ individual situation and their choices, ii) the applicable legal regime of the respective country and its purpose, iii) the relevant duration, especially in the light of the purpose and the procedural protection enjoyed by applicants pending the events, and iv) the nature and degree of the actual restrictions imposed on or experienced by the applicants (see the cases cited in the preceding three paragraphs). 218. The Court considers that the factors outlined above are also relevant, mutatis mutandis, in the present case. (b) Application of those principles 219. The present case concerns, apparently for the first time, a transit zone located on the land border between two member States of the Council of Europe, where asylum-seekers had to stay pending the examination of the admissibility of their asylum requests. The specific purpose, as well the physical and legal characteristics of such transit zones will inevitably have an impact on the Court’s analysis of the applicability of Article 5. (i) The applicants’ individual situation and choices 220. The Court observes, first, that the applicants entered the Röszke transit zone of their own initiative, with the aim of seeking asylum in Hungary. While this fact in itself does not exclude the possibility of the applicants finding themselves in a situation of de facto deprivation of liberty after having entered, the Court considers that it is a relevant consideration, to be looked at in the light of all other circumstances of the case. 221. It is true that in a number of cases the Court stated that detention might violate Article 5 of the Convention even though the person concerned had agreed to it and emphasised that the right to liberty is too important for a person to lose the benefit of the protection of the Convention for the single reason that he gave himself up to be taken into detention (see De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, § 65, Series A, no. 12; I.I. v. Bulgaria, no. 44082/98, §§ 84-87, 9 June 2005; Osypenko v. Ukraine, no. 4634/04, § 48, 9 November 2010; Venskutė v. Lithuania, no. 10645/08, § 72, 11 December 2012; and Buzadji v. Moldova [GC], no. 23755/07, §§ 106-10, 5 July 2016). The cases cited above, however, concerned situations where the law provided for deprivation of liberty or situations where the applicants had complied with an obligation, such as, among others, to enter a prison or a police station or submit to house arrest. The circumstances are not the same, in the Court’s view, where the applicants – as in the present case – had no relevant prior link to the State concerned and no obligation to which they acquiesced but requested admission to that State’s territory of their own initiative and sought asylum there. In such cases the starting point regarding the applicants’ individual position vis ‑ à ‑ vis the authorities is entirely different. 222. In the present case, having regard to the known facts about the applicants and their journey from Bangladesh to Hungary, there is no doubt that they entered the Röszke transit zone of their own initiative. It is also clear that, at all events, the Hungarian authorities were entitled to do the necessary verifications and examine their claims before deciding whether or not to admit them. 223. Finally, the Court also notes that the applicants did not cross the border from Serbia because of a direct and immediate danger for their life or health in that country but did so of their free will. (ii) The applicable legal regime, its purpose and the relevant duration in the light of that purpose and the attendant procedural protection 224. Second, it is also relevant that the rationale and purpose of the domestic legal regime applicable to the Röszke transit zone was to put in place a waiting area while the authorities decided whether to formally admit the asylum-seekers to Hungary (see paragraph 41 above and, in particular, Section 71/A of the Hungarian Asylum Act). Albeit not decisive in itself, it is relevant to note that the Hungarian authorities did not seek to deprive the applicants of their liberty and that they ordered them to leave Hungary on the very day of their entry (see paragraph 8 above). The applicants remained in the transit zone essentially because they appealed against the expulsion order (see paragraphs 20-37 above). 225. The right of States to control the entry of foreigners into their territory necessarily implies that admission authorisation may be conditional on compliance with relevant requirements. Therefore, absent other significant factors, the situation of an individual applying for entry and waiting for a short period for the verification of his or her right to enter cannot be described as deprivation of liberty imputable to the State, since in such cases the State authorities have undertaken vis-à-vis the individual no other steps than reacting to his or her wish to enter by carrying out the necessary verifications (see, mutatis mutandis, Gahramanov, cited above, §§ 35-47; see also Mahdid and Haddar (dec.), cited above, where the applicants’ asylum requests were dismissed in an airport transit zone within three days and the Court found that there had been no deprivation of liberty (taking into consideration additional factors, such as that the applicants were not under constant police control)). 226. It is further relevant that, in line with the purpose of the domestic legal regime, procedural guarantees concerning the processing of asylum claims and provisions fixing the maximum duration of asylum seekers’ stay in the transit zone applied to the applicants’ case (see paragraphs 41 and 205 above). These guarantees were implemented and the applicants spent twenty-three days at the Rӧszke transit zone, during which time their asylum requests were processed at administrative and judicial level. 227. In the Court’s case-law concerning confinement of aliens in an immigration context, the duration of the relevant restriction on movement and the link between the actions of the authorities and the restricted freedom may be elements affecting the classification of the situation as amounting to deprivation of liberty or not (see, mutatis mutandis, Amuur, § 43, cited above; Gahramanov, cited above, §§ 35-47, and Mahdid and Haddar, cited above). However, the Court considers that in situations generally similar to those in the present case, as long as the applicants’ stay in the transit zone does not exceed significantly the time needed for the examination of an asylum request and there are no exceptional circumstances, the duration in itself should not affect the Court’s analysis on the applicability of Article 5 in a decisive manner. That is particularly so where the individuals, while waiting for the processing of their asylum claims, benefitted from procedural rights and safeguards against excessive waiting periods. The presence of domestic legal regulation limiting the length of stay in the transit zone is of significant importance in this regard. 228. In the present case, the Court observes that the Hungarian authorities were working in conditions of a mass influx of asylum-seekers and migrants at the border, which necessitated rapidly putting in place measures to deal with what was clearly a crisis situation. Despite the ensuing very significant difficulties, the applicants’ asylum claims and their judicial appeals were examined within three weeks and two days (see paragraphs 8 and 20-37 above). 229. The Court thus considers that the applicants’ situation was not influenced by any inaction of the Hungarian authorities and that no action was imputable to them other than what was strictly necessary to verify whether the applicants’ wish to enter Hungary to seek asylum there could be granted. 230. Nonetheless, the Court must also verify whether the actual restrictions imposed on or experienced by the applicants had the effect, despite the above, of placing them in a situation of de facto deprivation of liberty. (iii) The nature and degree of the actual restrictions imposed on or experienced by the applicants 231. The Court notes, on the one hand, that individuals staying at the Röszke transit zone were not permitted to leave in the direction of the remaining territory of Hungary, the country where the zone was located (compare and contrast Mogoş, cited above). This is unsurprising having regard to the very purpose of the transit zone as a waiting area while the authorities decided whether to formally admit asylum-seekers to Hungary. 232. At the relevant time the Röszke transit zone covered a very limited surface, was surrounded by a fence and barbed wire and was fully guarded, which excluded free outward or inward movement. Inside the zone, the applicants could communicate with other asylum-seekers and could receive visits, such as by their lawyer, with the authorities’ permission. They could spend time outdoors on a narrow strip of land in front of the containers serving as dormitories (see paragraphs 15, 65 and 67 above). The Court finds that, overall, the size of the area and the manner in which it was controlled were such that the applicants’ freedom of movement was restricted to a very significant degree, in a manner similar to that characteristic of certain types of light-regime detention facilities. 233. The Court takes account of the fact, on the other hand, that while waiting for the procedural steps made necessary by their application for asylum, the applicants lived in conditions which, albeit involving a significant restriction on their freedom of movement, did not limit their liberty unnecessarily or to an extent or in a manner unconnected to the examination of their asylum claims. The Court also recalls that it dismissed the applicants’ complaint that these conditions were inhuman and degrading (see paragraph 194 above). Finally, the applicants spent only twenty-three days in the zone, a period which – as the Court found – did not exceed what was strictly necessary to verify whether the applicants’ wish to enter Hungary to seek asylum there could be granted. 234. The remaining question is whether the applicants could leave the transit zone in a direction other than the territory of Hungary. 235. In this regard, the Court observes, in the first place, that during the relevant period many persons in the applicants’ situation returned from the Rӧszke transit zone to Serbia, at least some of them voluntarily, as confirmed, inter alia, by relevant accounts from non-governmental organisations (see paragraph 71 above). This fact does not appear to be disputed by the applicants. 236. It is further significant that, in contrast to, for example, persons confined to an airport transit zone (see § 214 above), those placed in a land border transit zone, as the applicants in the present case, do not need to board an airplane in order to return to the country from which they came. The applicants came from Serbia, the territory of which was immediately adjacent to the transit zone area. In practical terms, therefore, the possibility for them to leave the Rӧszke land border transit zone was not only theoretical but realistic. Indeed, unlike the case of Amuur (cited above), where the French courts described the applicants’ confinement as an “arbitrary deprivation of liberty” (ibid., § 45), in the present case the Hungarian authorities were apparently convinced that the applicants could realistically leave in the direction of Serbia. 237. It is probable that the applicants had no legal right to enter Serbia. The Court notes, however, that Serbia was bound at the relevant time by a readmission agreement concluded with the European Union (see paragraph 59 above). While it is not for the Court to interpret this agreement and decide whether or not the applicants’ case was covered by its provisions, it considers that the de facto possibility of them leaving the transit zone for Serbia existed, not only in theory but also in practice. This is confirmed by the fact that the applicants and, during the same period, many other persons in a similar situation, did eventually leave the zone and entered Serbia. 238. The applicants argued, in addition, that they were unable to return to the country they came from, in this case Serbia, because of a real risk of grave consequences. The respondent Government disputed this claim, emphasising that Serbia was a safe country and in any event the applicants were not persecuted in their country of origin, Bangladesh. 239. The Court recalls its reasoning in the case of Amuur (cited above), where it stated that “the mere fact that it is possible for asylum-seekers to leave voluntarily the country where they wish to take refuge cannot exclude a restriction on liberty” and noted that the possibility to leave “becomes theoretical if no other country offering protection comparable to the protection they expect to find in the country where they are seeking asylum is inclined or prepared to take them in” (ibid., § 48). 240. In the Court’s view this reasoning in Amuur must be read in close relation to the factual and legal context in that case, which concerned a situation where the applicants could not leave the airport zone, neither in theory nor in practice, without authorisation to board an airplane and without diplomatic assurances concerning their only possible destination, Syria, a country “not bound by the Geneva Convention Relating to the Status of Refugees” ( ibid ). Overcoming these obstacles or mitigating the consequences related thereto was only possible, if at all, through actions of the authorities and did not depend on the applicants’ will. Similarly, in J.R. and Others v. Greece (cited above), the applicants could not leave to the direction of Turkey, the country from which they came, otherwise than by boarding a vessel. 241. In the present case, in contrast, it was practically possible for the applicants to walk to the border and cross into Serbia, a country bound by the Geneva Convention relating to the Status of Refugees (see paragraph 72 above). 242. It is further of relevance that what the applicants feared in case of return to Serbia, as explained in their submissions to the Court regarding Article 3 (see paragraphs 100-107 above), was not a direct threat to their life or health but deficiencies in the functioning of Serbia’s asylum system and the ensuing risk of their removal from Serbia to two other Contracting States, the Republic of North Macedonia or Greece, without a proper examination of their asylum claims. 243. The Court cannot accept that these fears alone, despite all other circumstances in the present case (which, as explained above, are different from those obtaining in the cases concerning airport transit zones), were sufficient to bring Article 5 into application. Such an interpretation of the applicability of Article 5 would stretch the concept of deprivation of liberty beyond its meaning intended by the Convention. 244. The prohibition of ill-treatment in case of removal of an asylum seeker is an issue under Article 3 of the Convention which imposes on the Contracting States stringent substantive and procedural duties, some of which form part of the subject-matter of the present case (see paragraphs 100-165 above). In particular, asylum seekers cannot be removed to a country where they run a real risk of being subjected to treatment contrary to Article 3. Failing to abide by this provision, including by the procedural obligation to examine thoroughly all potential risks, entails the responsibility of the relevant Contracting State for its violation. 245. It is true that there is a link between the rights under Article 3 and those under Article 5 of the Convention, in that, in particular, independent judicial scrutiny of deprivation of liberty, required by Article 5 §§ 3 and 4, is essential to the prevention of life-threatening acts or serious ill-treatment in detention (see, Kurt v. Turkey, 25 May 1998, § 123, Reports 1998 ‑ III). This link concerns, however, a very different context. 246. In the Court’s view, where – as in the present case – the sum of all other relevant factors did not point to a situation of de facto deprivation of liberty and it was possible for the asylum seekers, without a direct threat for their life or health, known by or brought to the attention of the authorities at the relevant time, to return to the third intermediary country they had come from, Article 5 could not be seen as applicable to their situation in a land border transit zone where they awaited the examination of their asylum claims, on the ground that the authorities had not complied with their separate duties under Article 3. The Convention cannot be read as linking in such a manner the applicability of Article 5 to a separate issue concerning the authorities’ compliance with Article 3. 247. It is true that, pursuant to section 66 (2) d) of the Asylum Act (see paragraph 41 above), the applicants would have forfeited the examination of their asylum claims in Hungary if they left prior to the final decision on their asylum requests. In this regard the Court finds unconvincing the Government’s argument, based on section 66(6) of the same law, that the applicants were free to spend time in Serbia and then have the asylum proceedings in Hungary resumed if they came back to the transit zone within nine months. No such example has been cited by the respondent Government and there is nothing to indicate that the applicants were informed of such a possibility when they were at the Röszke transit zone. To the contrary, as confirmed by the respondent Government in their written observations to the Grand Chamber, the applicants had to remain at the disposal of the Hungarian asylum authorities and, therefore, in the transit zone, pending examination of the admissibility of their asylum requests, which, moreover, depended on an assessment of whether they could safely be returned to Serbia. 248. The Court reiterates however that, in the absence of a direct threat to the applicants’ life or health, known by or brought to the attention of the Hungarian authorities at the relevant time, the discontinuation of the applicants’ asylum proceedings in Hungary was a legal issue which did not affect their physical liberty to move out of the transit zone by walking into Serbian territory. In the circumstances of the present case and in contrast to the situation that obtained in some of the cases concerning airport transit zones, and notably in Amuur (cited above), the risk of the applicants’ forfeiting the examination of their asylum claims in Hungary and their fears about insufficient access to asylum procedures in Serbia, while relevant with regard to Article 3, did not render the applicants’ possibility of leaving the transit zone in the direction of Serbia merely theoretical. Therefore, it did not have the effect of making the applicants’ stay in the transit zone involuntary from the standpoint of Article 5 and, consequently, could not trigger, of itself, the applicability of that provision. (iv) Conclusion as regards the applicability of Article 5 249. The Court thus finds that, having regard to all the circumstances of the present case analysed above, the applicants were not deprived of their liberty within the meaning of Article 5. Therefore, this provision did not apply. The Court’s conclusion on the complaints under Article 5 250. It follows that the applicants’ complaints under Article 5 §§ 1 and 4 of the Convention are incompatible ratione materiae with its provisions. The Court also reiterates that under Article 35 § 4 of the Convention, it may dismiss applications which it considers inadmissible “at any stage of the proceedings” and that, therefore, subject to Rule 55 of the Rules of Court, the Grand Chamber may reconsider a decision to declare an application admissible (see the case-law cited in paragraph 80 above). 251. The Court thus holds that this part of the application must be declared inadmissible in accordance with Article 35 § 3 (a) and 4. APPLICATION OF ARTICLE 41 OF THE CONVENTION 252. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” Damage 253. The Chamber awarded 10,000 euros (EUR) to each applicant on account of non-pecuniary damage. 254. Before the Grand Chamber the applicants claimed, as they did before the Chamber, EUR 15,000 each in respect of non-pecuniary damage. The Government invited the Court to reject the applicants’ claim as being excessive. 255. The Court considers that the applicants must have suffered non ‑ pecuniary damage as a result of the procedural violation of Article 3 of the Convention found in the present case. Having regard to the relevant circumstances of the case, it awards EUR 5,000 to each applicant in respect of non-pecuniary damage. Costs and expenses 256. Before the Chamber the applicants claimed EUR 8,705 for 57.5 hours of legal work at the hourly rate of EUR 150 plus EUR 80 in clerical expenses. The Chamber awarded this claim in full. 257. Before the Grand Chamber the applicants reiterated the above claim and also claimed, in respect of the Grand Chamber proceedings, an additional EUR 17,625 for 117.5 hours of legal work at the hourly rate of EUR 150. They submitted a time sheet indicating the sum of hours without further detail. The applicants’ claim in respect of cost and expenses thus amounted to EUR 26,330 in total. 258. The Government submitted that the expenses claimed were neither necessarily incurred nor reasonable as to quantum having regard to the number of irrelevant submissions made by the applicants. 259. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria and taking into consideration that most of the applicants’ complaints have been rejected, the Court considers it reasonable to award EUR 18,000 in respect of all costs and expenses. Default interest 260. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Grand Chamber held, by a majority, that the applicants’ complaints under Article 5 §§ 1 (right to liberty and security) and 4 (right to have lawfulness of detention decided speedily by a court) of the Convention had to be rejected as inadmissible, finding that Article 5 of the Convention was not applicable to the applicants’ case as there had been no de facto deprivation of liberty in the transit zone. Among other things, the Court found that the applicants had entered the transit zone of their own initiative and it had been possible in practice for them to return to Serbia, where they had not faced any danger to their life or health. It also noted that the applicants’ fears of a lack of access to Serbia’s asylum system or of refoulement to Greece, as expressed under Article 3 (prohibition of inhuman or degrading treatment) of the Convention, had not been enough to make their stay in the transit zone involuntary. |
902 | Persons arrested or under criminal prosecution | II. RELEVANT DOMESTIC LAW 19. Section 131A, as in force at the material time, of the Administration of Courts Act 1915 ( domstolloven ) provided: “During oral proceedings in a criminal case, photographing, filming and radio - or television recordings are prohibited. It is also prohibited to take photographs or make recordings of the accused or the convicted on his or her way to, or from, the hearing or when he or she is staying inside the building in which the hearing takes place, without his or her consent. If there are special reasons for doing so, the court may in the course of the proceedings make an exception from the [above] prohibition if it can be assumed that it would not unduly affect the examination of the case and no other reasons militate decisively against doing so. Before authorisation is given the parties should have an opportunity to express their views.” 20. Section 198(3) provided that the taking of photos or recordings made in breach of section 131A is punishable by the imposition of fines. THE LAW I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 22. The applicants complained under Article 10 of the Convention that the Supreme Court ’ s judgment of 23 March 2004 entailed an interference with their right to freedom of expression that was not supported by sufficient reasons and was therefore not “necessary” within the meaning of this provision. In so far as is relevant, Article 10 of the Convention reads: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ... 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, ... for the protection of the reputation or rights of others, ... or for maintaining the authority and impartiality of the judiciary.” 23. The Court notes form the outset that it was undisputed that the Supreme Court ’ s judgment of 23 March 2004, concluding that the publication of the photographs in question by Dagbladet and Aftenposten on respectively 22 and 23 June 2001 constituted an offence under sections 131A and 198(3) of the 1915 Act and ordering that they each pay NOK 10,000 in fine, amounted to an interference with their right to freedom of expression as guaranteed by the first paragraph of Article 10. The Court, having regard to its own case-law, sees no reason to hold otherwise (see News Verlags GmbH & Co.KG v. Austria, no. 31457/96, § 40, ECHR 2000 ‑ I ). 24. As to the fulfilment of the conditions in paragraph 2 it was common ground between the parties that the interference was prescribed by law, namely the aforementioned provisions of the 1915 Act. The Court is satisfied that this condition was fulfilled. 25. Nor did the applicants contest that the interference pursued a legitimate aim, without however specifying which of the aims listed in paragraph 2 were relevant. 26. The Government, referring to the considerations mentioned by the Supreme Court in paragraph 24 of its judgment, affirmed that the interference pursued the aims of protecting the privacy of an individual and maintaining central principles of due process. 27. The Court considers that the interference could be deemed to pursue the legitimate aims of protecting “the reputation or rights of others” and “maintaining the authority and impartiality of the judiciary” in the sense of paragraph 2 of Article 10. 28. On the other hand, the parties were in disagreement as to whether the restriction was necessary in a democratic society for the achievement of the legitimate aims. Submissions of the parties 1. The applicants ’ arguments 29. As to whether the interference was necessary in a democratic society, the applicants did not contest that, generally, there would be weighty reasons for prohibiting the taking of photographs of defendants in criminal cases in court or on their way to or from the court. However, they argued that the reasons relied on by the Supreme Court in imposing the restrictions on the publication of the impugned photographs, although they were relevant, were not sufficient for the purposes of the necessity test to be carried out under Article 10 § 2 of the Convention. 30. The disputed pictures of B had been taken when she was arrested by the police, about half an hour after she had been convicted and sentenced in open court to the maximum statutory penalty for aiding and abetting triple murder. The delivery of the judgment had been broadcast live. Not only had there been a great public interest in the case as a whole but the arrest of B had marked a new development in the case of which the public had the right to be informed. The public interest had not laid in her identity, which had already been well known, but in the fact that she had been arrested and taken into police custody after being free for the last 18 months. 31. The applicants disputed the Government ’ s argument to the effect that pictorial reporting on a subject of public interest could only be regarded as covered by that interest if it showed something special or unexpected. In any event, when assessing the degree of public interest in the pictures at issue, regard should also be had to the fact that B ’ s own lawyer had been reported by the press to have stated that the arrest had been an unnecessary harassment by the police. Furthermore, the legitimacy of the arrest had been discussed in public by legal professionals, rendered by Dagbladet on 23 June 2001 and had definitely represented a turning point in the Orderud case. 32. The crucial question was not, as the Government claimed, whether the pictures had been of public interest, which they where, but whether there were sufficiently pressing needs to ban their publication. Neither the interests of B nor the interests of fair administration of justice required such a ban in the present case. 33. As to B ’ s interests, the Government had attached decisive weight to the fact that she had not consented to being photographed. However, it was contrary to press freedom to grant persons who, like B, had played a central role in issues of great public interest the opportunity to govern press coverage of such issues through their own consent. It would imply that B could use her consent to get media coverage when it suited her case and at the same time restrict media coverage by withholding consent when circumstances were less favourable to her or if she disliked the particular media coverage. B had actually made active use of the press when it suited her interests. 34. In addition, as also noted by the District Court, the contents of the photographs could not be considered to have been particularly offensive or defamatory. 35. The applicants would not dispute that B, when she was leaving the court building, had been in a situation that fell within the prohibition in section 131A of the 1915 Act. However, the Supreme Court, which had dealt with the matter only in a general manner, had failed to assess any particular need relating to the particular photographs or to her specific circumstances. In the applicants ’ opinion these were not such that the interference with their freedom of expression could be justified by the interests of protecting B ’ s privacy. The pictures had not been taken in court or immediately after the verdict or in the court building, but outside the court building half an hour after the verdict. There was no prohibition against taking photographs of an arrest, and it was exactly this latter circumstance that had motivated the taking and publishing of the pictures. In that sense, B had been outside the intended core protection area of section 131A. 36. In the applicant ’ s view, none of the general justifications for the prohibition in section 131A of the 1915 Act had applied with any or much strength in this case. Firstly, B had since long been identified, wherefore protecting her against identification would have been futile. As to the second consideration – the need to protect the convicted person or the accused from being photographed in situations of reduced self control, the applicants stressed that B had left the court room when she understood that she was about to be convicted and had naturally reacted to the conviction. Before the pictures had been taken, she had spent more than half an-hour alone with her family and lawyers to gather herself. The Supreme Court had stated that the interests of protection of personal privacy had not been predominant. This was illustrated by the fact that none of the other persons convicted had complained about pictures having been taken of them and been published. Also the third consideration - to ensure that legal proceedings as far as possible inspire confidence in and show consideration for the persons involved - carried limited weight compared to the considerable public interest in the case generally and in the arrest of B specifically. To allow the taking and publishing of the pictures in the present case would not have undermined the prohibition in section 131A of 1915 Act. As to the fourth reason, the applicants stressed that the pictures had been taken in a parking area outside the court house and that it had been difficult therefore to see how they could have prejudiced the dignity and reputation of the judiciary. 37. The applicants emphasised that, contrary to what was suggested by the Supreme Court, none of the considerations relied on by the European Court in P4 Radio Hele Norge ASA, cited above, for allowing States a wide margin of appreciation applied in the present case. Whereas the disputed restriction in the former case had not involved the prohibition of publication of specific expressions, but only limitations of a more trivial nature on the freedom to report from the proceedings by the means of live radio broadcasting, the present case concerned criminal conviction of members of the press for publication of specific expressions, notably pictures that documented the arrest of B. Referring to the Court ’ s judgment in News Verlags GmbH & Co.KG v. Austria, ( no. 31457/96, ECHR 2000 ‑ I ), the applicants argued that pictorial reporting should be judged by the same standards as written articles in the media. 38. Finally, the applicants submitted that the interference complained of had been disproportionate to the legitimate aim pursued. In their view, the Supreme Court had erroneously adopted an approach which was the inverse of the one implied by Article 10 of the Convention. According to the Supreme Court, the question had not been whether there existed weighty reasons to justify the interference but, the other way round, whether there had existed very special considerations warranting the prohibition in section 131A to yield to the freedom of expression as protected by Article 10. In finding that a photograph must show something special in order to fall within the protection of Article 10, the Supreme Court had failed to have due regard to the freedom of speech. The application of such a norm constituted a serious infringement of the freedom of the media to report on serious criminal court cases. 39. In short, the applicants submitted, the disputed interference with the applicants ’ right to freedom of expression was not offset by any weighty countervailing interests pertaining either to B ’ s interest of privacy or to considerations of fair administration of justice. 2. The Government ’ s arguments 40. On the question whether the interference was necessary in a democratic society the Government maintained that even though the Orderud case had been horrifying and the subject of enormous public interest, the photographs in question had been of limited public interest. B ’ s identity had been well known to the public at the time when the photographs had been taken. The arrest of the four freshly convicted persons admittedly represented developments of public interest, as was also recognized by the Supreme Court. However, a crucial fact for the assessment of the present case was that the impugned photographs had not been primarily used to illustrate the arrest. Rather than contributing to any debate of public interest, the sole purpose had been to satisfy readers ’ curiosity about B ’ s emotional reaction to her conviction, which showed nothing abnormal or unexpected. Thus the impugned reporting in the present case fell outside the function of the press to serve as a public watchdog. 41. While not contesting the Court ’ s powers to make its own interpretation of the pictures in the context that they had been published, knowledge of national conditions was an important element in assessing the degree of public interest in a given subject. In the Government ’ s opinion, the national Supreme Court was better placed than the Court to assess this matter. 42. The Government maintained that although B ’ s previous co-operation with the press was a valid argument with regard to her general protection against being photographed, this consideration did not apply in the present case. The pictures had been taken shortly after she had been found guilty of having wilfully murdered three persons and sentenced to 21 years ’ imprisonment. B had throughout the proceedings claimed her innocence. Both the fact that she had been found guilty and that she had been imposed the maximum penalty according to Norwegian law were clearly life-altering decisions for her, resulting in shock and utmost despair. 43. It was, in the Governments view, undisputable that, despite her previous co-operation with the press, in this particular situation B was entitled to the same protection against being photographed as any other person who had been convicted. She was in a situation of reduced self-control, which was precisely the kind of situation in which the prohibition was designed to afford protection. Convicted persons had, even in serious criminal cases like the present one, a legitimate right to be protected from being photographed in situations of reduced self-control. Without such a prohibition undignified situations could easily arise in which accused and convicted persons would have to force their way past photographers waiting outside the court room or in the immediate premises. Like in Von Hannover v. Germany, ( no. 59320/00, § 68, ECHR 2004 ‑ VI ), an additional element was that the photographs had been taken without B ’ s consent. The Government stressed that any person, including persons considered as public figures, had a legitimate interest in protection against being photographed in certain situations. This was certainly the case of convicted persons. 44. The Government, referring to the Court ’ s ruling in P4 Radio Hele Norge ASA v. Norway ( dec .), no. 76682/01, ECHR 2003 ‑ VI, maintained that a wide margin of appreciation should apply in the instant case. The Supreme Court had furthermore presented relevant and sufficient reasons for accepting the interference. 45. The interference in this case had been of rather trivial nature in that it had only involved a restriction on the newspaper ’ s choice as to the means of imparting information. B ’ s reaction could have been appropriately described by words. The extent of the restriction had also been limited. According to Section 131A of the 1915 Act, the prohibition had included only the immediate vicinity of the court premises, i.e. normally up to the car parking area. Photographing beyond that point was not prohibited. Thus, the prohibition had entailed only a minor interference with the applicants ’ freedom of expression. Accordingly, even the arrest could be illustrated in another way, for example by photographing B at the police station or in prison. 46. The Government further pointed out that rules which limited the right of the press to cover court proceedings could be found in the national legal systems of several European States. Sweden and Denmark had corresponding rules to those that applied in Norway. 47. In light of the above and, in particular, due process considerations and the need to protect the person concerned in a situation of reduced self-control following her conviction, the interference with the applicants ’ freedom of expression was “necessary in a democratic society” within the meaning of Article 10 § 2 of the Convention. B. Assessment by the Court 1. General principles 48. The test of “necessity in a democratic society” requires the Court to determine whether the “interference” complained of corresponded to a “pressing social need”, whether it was proportionate to the legitimate aim pursued and whether the reasons given by the national authorities to justify it are relevant and sufficient (see Sunday Times v. the United Kingdom (no. 1), judgment of 26 April 1979, Series A no. 30, p. 38, § 62). In assessing whether such a “need” exists and what measures should be adopted to deal with it, the national authorities are left a certain margin of appreciation. This power of appreciation is not, however, unlimited but goes hand in hand with European supervision by the Court, whose task it is to give a final ruling on whether a restriction is reconcilable with freedom of expression as protected by Article 10. 49. An important factor for the Court ’ s determination is the essential function of the press in a democratic society. Although the press must not overstep certain bounds, in particular in respect of the reputation and rights of others or of the proper administration of justice, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest (see Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 59, ECHR 1999-III). This duty extends to the reporting and commenting on court proceedings which, provided that they do not overstep the bounds set out above, contribute to their publicity and are thus consonant with the requirement under Article 6 § 1 of the Convention that hearings be public. Not only do the media have the task of imparting such information and ideas: the public has a right to receive them (see News Verlags GmbH & Co.KG v. Austria, no. 31457/96, § § 55-56, ECHR 2000 ‑ I; Worm v. Austria, judgment of 29 August 1997, Reports of Judgments and Decisions 1997 ‑ V, p. 1551-2, § 50 ). 50. In sum, the Court ’ s task in exercising its supervisory function is not to take the place of the national authorities but rather to review under Article 10, in the light of the case as a whole, the decisions they have taken pursuant to their power of appreciation (see, among many other authorities, Fressoz and Roire v. France [GC], no. 29183/95, § 45, ECHR 1999-I). 51. In this connection, the Court notes that in convicting and sentencing the applicants in this case, the Norwegian Supreme Court attached considerable weight to the European Court ’ s decision in the above cited P4 Radio Hele Norge ASA v. Norway (( dec .), no. 76682/01, ECHR 2003 ‑ VI .), relating to the same case complex and in which it held inter alia : “ ... [T]he Contracting States must enjoy a wide margin of appreciation in regulating the freedom of the press to transmit court hearings live. The Court does not consider that a legal presumption on the national level against allowing live transmission, such as that contained in section 131A of the Administration of Courts Act, in itself raises an issue of failure to comply with Article 10 of the Convention.” 52. That case dealt with an issue of prohibition, pursuant to the first sentence of section 131A(1) of the 1915 Act, to transmit the trial hearing before the Nes District Court live (by radio), thereby limiting the choice of the means available to the press in covering the proceedings. Also in this case there is a question of restriction on the choice of journalistic means, in that it concerns a prohibition, according to the second sentence of section 131A(1), to take photographs of one of the convicted persons outside the court building after the proceedings had come to a close. Although the situations were different, the Court notes that the two rules pursued the same interests, notably the need to avoid additional pressure being brought on those involved in the trial. The Court therefore considers that the rationale for according States a wide margin of appreciation in the former case is applicable to the present instance. 53. The subject matter at issue in this case relates, on the one hand, to the right of the press under Article 10 of the Convention to inform the public on matters of public concern regarding ongoing criminal proceedings and, on the other hand, to the State ’ s positive obligations under Article 8 of the Convention to protect the privacy of convicted persons in criminal proceedings (see Principle 8 in the Appendix to Recommendation Rec (2003)13 of the Committee of Ministers to member States on the provision of information trough media in relation to criminal proceedings, quoted at paragraph 21 above) and its obligations under Article 6 of the Convention to ensure a fair administration of justice. 54. It is to be noted that Norway is not in an isolated position with regard to prohibition to photograph charged or convicted persons in connection with court proceedings. According to information available to the Court, similar prohibitions exist in the domestic laws of Cyprus, England and Wales, and legal restrictions apply also in Austria and Denmark. Whilst in a number of countries such matters are left to self-regulation by the press, it cannot be said that there is a European consensus to this effect. 55. In light of the above considerations, the Court considers that the competent authorities in the respondent State should be accorded a wide margin of appreciation in their balancing of the conflicting interests. 2. Application of those principles 56. The Court observes that the national legal provision contained in the second sentence of section 131A(1) of the 1915 Act, stipulated a prohibition against the taking of photographs of an accused or a convicted person, without his or her consent, on his or her way to or from the court hearing. According to the Supreme Court ’ s case-law, the prohibition was not absolute but would be set aside in instances where the national court found that it would conflict with Article 10 of the Convention. The Court will therefore confine its examination to the manner in which the national courts applied the prohibition to the concrete circumstances of the case. 57. In this regard, the Court notes that the Supreme Court based its decision in part on considerations of protection of privacy and in part on the need to safeguard due process (see paragraphs 24 and 25 of the Supreme Court ’ s judgment quoted at paragraph 18 above). In the Court ’ s view, these were undoubtedly relevant reasons for the purposes of the necessity test to be carried out under Article 10 § 2. It will next consider whether they were also sufficient. 58. Largely because of the exceptionally heinous character of the criminal offences in respect of which B and her co-accused had been charged, the trial had been given unprecedented media coverage. It is undisputed before the Court that the passing of the judgment and the arrest immediately after conviction and sentence at first instance was a matter of public interest. 59. However, under the terms of Article 10 § 2, the exercise of the freedom of expression carries with it “duties and responsibilities”, which also apply to the press. In the present case this relates to protecting “the reputation or rights of others” and “maintaining the authority and impartiality of the judiciary”. These duties and responsibilities are particularly important in relation to the dissemination to the wide public of photographs revealing personal and intimate information about an individual (see Von Hannover v. Germany, no. 59320/00, § 59, ECHR 2004 ‑ VI; Hachette Filipacchi Associés c. France, no 71111/01, § 42, 14 juin 2007 ). The same applies when this is done in connection with criminal proceedings (see Principle 8 in the Appendix to Recommendation Rec (2003)13 of the Committee of Ministers to member States on the provision of information trough media in relation to criminal proceedings, quoted at paragraph 2 1 above). The Court reiterates that the notion of private life in Article 8 of the Convention extends to a person ’ s identity, such as a person ’ s name or a person ’ s picture ( Von Hannover, cited above, § 50; see also Schüssel v. Austria ( dec .), no. 42409/98, 21 February 2002). 60. It is undisputed that at the time when the photos were taken B ’ s identity was already well known to the public and that, accordingly, there was no need to restrict the disclosure of her identity. The Court must nevertheless examine whether the contents of the photos, seen in the context of their publication, was such that the restriction on publication was justified. 61. The Court notes that two of the impugned photographs, one taken from the side, the other from a more frontal angle, depicted B as she had left the court house accompanied by her lawyer and was being followed by a civil clothed police officer to an unmarked police car. The third photograph, taken through the window of the police car, depicted her seated in the back near the window. All three photographs portrayed her distraught with a handkerchief close to her face in a state of strong emotion. She had just been arrested inside the court house after being notified of the District Court ’ s judgment convicting her of triple murder and imposing on her a 21 years ’ prison sentence, the most severe sentence contemplated under Norwegian law. It must be assumed that B, who was shown in tears and great distress, was emotionally shaken and at her most vulnerable psychologically. As observed by the Supreme Court, immediately in connection with the delivery of the District Court judgment she was in a state of reduced self control, a situation which lay at the core of the protection which the relevant statutory provision was intended to provide. Although the photographs had been taken in a public place (see, mutatis mutandis, Peck v. the United Kingdom, no. 44647/98, § § 57-63, ECHR 2003 ‑ I ) and in relation to a public event, the Court finds that their publication represented a particularly intrusive portrayal of B. She had not consented to the taking of the photographs or to their publication. 62. The Court is unable to agree with the applicants ’ argument that the absence of consent by B was irrelevant in view of her previous cooperation with the press. Her situation could not be assimilated to that of a person who voluntarily exposes himself or herself by virtue of his or her role as a politician ( Lingens v. Austria, judgment of 8 July 1986, Series A no. 103, p. 26, § 42; News Verlags GmbH & Co.KG, cited above, § 56; Krone Verlag GmbH & Co. KG v. Austria, no. 34315/96, §§ 35-39, 26 February 2002 ) or as a public figure (see Fressoz and Roire v. France [GC], no. 29183/95, § 50, ECHR 1999 ‑ I; Tønsbergs Blad A.S. and Haukom v. Norway, no. 510/04, § 87, ECHR 2007 ‑ ... ) or as a participant in a public debate on a matter of public interest (see, for instance, Nilsen and Johnsen v. Norway [GC], no. 23118/93, § 52, ECHR 1999 ‑ VIII; Oberschlick v. Austria (no. 2), judgment of 1 July 1997, Reports of Judgments and Decisions 1997 ‑ IV, pp. 1275-76, §§ 31-35). Accordingly, the fact that B had cooperated with the press on previous occasions could not serve as an argument for depriving her of protection against the publication by the press of the photographs in question. 63. The Court therefore finds that the need to protect B ’ s privacy was equally important as that of safeguarding due process. While the Supreme Court attached more weight to the latter (see paragraph 35 of its judgment quoted at paragraph 18 above), for the European Court the former is predominant. However, when considered in the aggregate, both reasons corresponded to a pressing social need and were sufficient. The interests in restricting publication of the photographs outweighed those of the press in informing the public on a matter of public concern. 64. Finally, the Court notes that the fines imposed were not particularly severe. 65. In sum, the Court finds that, by prohibiting the taking and publication of the photographs of B on the way from the court building to an awaiting police car, the respondent State acted within its margin of appreciation in assessing the need to protect her privacy and those of fair administration of justice. It is satisfied that the restriction on the applicant editors ’ right to freedom of expression resulting from the Supreme Court ’ s judgment of 23 March 2003 was supported by reasons that were relevant and sufficient, and was proportionate to the legitimate aims pursed. There has therefore been no violation of Article 10 of the Convention in the present case. | The Court held that there had been no violation of Article 10 (freedom of expression) of the Convention. |
993 | Cases in which the Court found no violation of Article 18 in conjunction with Article 5 | II. RELEVANT DOMESTIC LAW AND PRACTICE IN AZERBAIJAN A. The Criminal Code 62. Article 274 of the Criminal Code provides as follows: Article 274. High treason “High treason, that is to say a deliberate act committed by a citizen of the Republic of Azerbaijan to the detriment of the Republic of Azerbaijan ’ s sovereignty, territorial inviolability, State security or defence capacity: [namely] joining the enemy; espionage; the transfer of State secret to a foreign State; [or] providing assistance to a foreign State, organisation or their representatives by carrying out hostile activity against the Republic of Azerbaijan, is punishable by deprivation of liberty for a period of twelve to twenty years, or life imprisonment.” B. The Code of Criminal Procedure (“the CCrP ”) 63. A detailed description of the relevant provisions of the CCrP concerning pre-trial detention and proceedings concerning the application and review of detention pending trial can be found in the cases of Farhad Aliyev v. Azerbaijan (no. 37138/06, §§ 83-102, 9 November 2010), and Muradverdiyev v. Azerbaijan (no. 16966/06, §§ 35-49, 9 December 2010). C. The Law on the Guarantee of the Rights and Freedoms of Individuals Kept in Detention Facilities of 22 May 2012 (“the Law of 22 May 2012”) 64. The relevant provisions of the Law of 22 May 2012 provide as follows: Article 17. Correspondence of arrested or detained individuals “17.3. Except for their correspondence with counsel or other persons providing legal aid, the correspondence that arrested or detained individuals receive and send may be restricted or subjected to censorship: by a justified decision; by the investigating authority, for the purposes of preventing the preparation of crimes [or] ensuring a criminal investigation and the security of individuals; or by the detention facility ’ s administration, in the event of it being necessary to ensure the regime in the detention facility ...” Article 19. Arrested or detained individuals ’ contactwith counsel and other persons “19.8. The right of an arrested individual to use the telephone, [and] the right of a detained individual to use the telephone [and] meet and have telephone conversations with other persons except counsel, may be restricted for a certain period of time: by a justified decision; by the investigating authority, for the purposes of preventing the preparation of crimes [or] ensuring a criminal investigation and the security of individuals; or by the detention facility ’ s administration, in the event of it being necessary to ensure the regime in the detention facility ...” Article 23. Obtaining and keeping literature and writing supplies “23.1. Arrested individuals can access literature available in the library of the detention facility or obtain writing supplies, literature, newspapers and magazines from the commercial shop [at the detention facility] at their own expense, through the administration of the detention facility. In addition ..., detained individuals can also subscribe to newspapers and magazines at their own expense. 23.2. Arrested individuals are prohibited from obtaining, keeping or disseminating publications propagandising war, violence, extremism, terror and cruelty, [or] inciting racial, ethnic and social enmity and hostility, as well as those containing pornography. In addition ..., detained individuals are also prohibited from subscribing to such publications.” D. Decisions of the Plenum of the Supreme Court 65. A detailed description of the relevant parts of the decisions of the Plenum of the Supreme Court on the application of the provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms and the case-law of the European Court of Human Rights in the administration of justice, dated 30 March 2006, and on the application of the legislation by the courts during the consideration of applications for the preventive measure of remand in custody in respect of an accused, dated 3 November 2009, can be found in Rasul Jafarov v. Azerbaijan (no. 69981/14, §§ 50-76 and §§ 79-80, 17 March 2016). III. RELEVANT DOMESTIC LAW AND PRACTICE IN TURKEY A. Relevant provisions of Law no. 6216 on the establishment and rules of procedure of the Constitutional Court 66. The relevant paragraphs of sections 45, 47 and 50 of Law no. 6216 on the establishment and rules of procedure of the Constitutional Court provide as follows: Section 45 “(1) Anyone claiming that a public authority has violated one of his or her fundamental rights and freedoms as protected by the Constitution and secured under the European Convention on Human Rights and the Protocols thereto that have been ratified by Turkey may apply to the Constitutional Court. (2) An individual application may be lodged only after the exhaustion of all the administrative and judicial remedies provided for by law in relation to the measure, act or negligence complained of.” Section 47 “(1) Individual applications may be brought directly or through national courts or representations [diplomatic missions] abroad, in accordance with the provisions of the present law and the Internal Regulations ... ... (4) If the applicant is represented by a lawyer, a power of attorney must be presented [along with the application form]. (5) The individual application must be lodged within thirty days of ordinary remedies being exhausted; if no remedy is provided for, the period begins to run from the date on which the person concerned becomes aware of the violation. Those who, for justified reasons, cannot lodge their applications within the specified period may make an application within fifteen days of the impediment [which prevented them from applying at an earlier stage] coming to an end, [and shall also provide] evidence substantiating the impediment. The court will check the validity of the reason presented by the applicant before allowing or dismissing it. (6) If the documents accompanying the application are incomplete, the registry of the court shall give the applicant or his or her representative, if applicable, a maximum period of fifteen days to remedy the deficiency; [the applicant or his or her representative] shall be informed that the application will be rejected if the deficiency is not remedied within the specified period in the absence of a valid excuse.” Section 50 “(1) Following the examination on the merits, a decision shall be given as to whether or not there has been a violation of the applicant ’ s right. If a violation is established, the measures to be taken to put an end to the violation and redress its effects shall be specified in the operative provisions of the decision. No review of the appropriateness of an administrative act may be carried out, and no decision amounting to such an act may be given.” B. Relevant provisions of the Internal Regulations of the Turkish Constitutional Court ( Anayasa Mahkemesi İçtüzüğü ) 67. The relevant provisions of the Internal Regulations of the Constitutional Court provide as follows: Individual application form and its annexes Section 59 “(1) Applications should be lodged in the official language, using the application form provided in the annex to the present regulations or on the court ’ s website. ... (3) It is obligatory to add the following documents, or certified copies [of such documents], to the application form: (a) In applications presented by lawyers or legal representatives, a legal document demonstrating their authority to represent the applicant. ... (4) If, for any reason, the applicant is not able to submit the documents noted in the [previous] paragraph, he or she should explain those reasons and, where applicable, append the relevant information and documents [in support of his or her explanations] to the application form. The court shall collect the relevant information and documents of its own motion if it accepts the reasons [presented by the applicant], and as it deems necessary.” The applicant ’ s representation Section 61 “(1) The application may be lodged by the applicant personally, or by his legal representative or lawyer. With applications lodged by a lawyer or legal representative, it is mandatory to submit an authority form.” Where the application may be lodged Section 63 “(1) Applications may be lodged ... personally with the [Constitutional] Court, or through other courts or representations abroad.” Preliminary examination of the [application] formand its annexes and deficiencies Section 66 (1) The Individual Application Bureau shall examine the incoming applications in order to determine whether or not they contain any formal deficiencies. In the event that a deficiency is identified in the application form or its annexes, a period not exceeding fifteen days shall be given to the applicant or, if applicable, to his or her lawyer or legal representative, in order for those [deficiencies] to be remedied. (2) In the letter sent regarding the deficiencies, the applicant shall be notified that his or her application will be rejected in the event that he or she fails to remedy the deficiencies within the specified time-limit in the absence of a valid excuse. (3) In circumstances where the application has not been lodged within the legal time ‑ limit [or] does not comply with the formal conditions set out in sections 59 and 60, and [where] identified deficiencies have not been remedied within the specified period, it shall be rejected by the head of the Commission Rapporteurs and the applicant shall be notified of that [decision]. An objection to the decision can be filed with the Commission within seven days of the applicant being notified of the decision. Decisions made by Commissions in this regard shall be final.” C. Relevant provisions of the Foreigners and International Protection Act (Law no. 6458) 68. On 11 April 2014 the Foreigners and International Protection Act (Law no. 6458) entered into force. A detailed description of the relevant provisions of Law no. 6458 concerning the procedure for the removal of foreign nationals from Turkey, the administrative detention of foreign nationals pending removal, and the judicial review of removal and detention orders can be found in the case of Sakkal and Fares v. Turkey (( dec. ), no. 52902/15, § 24, 7 June 2016). D. Relevant provisions of the former Regulation on Press Cards (no. 24351) 69. Section 45 of the Regulation on Press Cards, in force at the material time, read as follows: The return and revocation of [press] cards “Upon his or her assignment expiring, or [the location of] his or her workplace changing, a foreign journalist is obliged to return his or her press card. The cards of those who do not comply with this obligation shall be revoked. The Directorate General may revoke a press card as it deems necessary.” THE LAW I. COMPLAINTS AGAINST AZERBAIJAN A. Alleged violation of Article 5 §§ 1 and 3 of the Convention concerning the whole period of the applicant ’ s pre-trial detention 70. Relying on Article 5 §§ 1 and 3 of the Convention, the applicant complained that he had been arrested and detained in Azerbaijan in the absence of a reasonable suspicion that he had committed a criminal offence. He further complained that the domestic courts had failed to provide relevant and sufficient reasons justifying the need for his pre-trial detention. The relevant parts of Article 5 §§ 1 and 3 of the Convention read as follows: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ... 3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” 1. Admissibility 71. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. 2. Merits (a) The parties ’ submissions ( i ) The applicant 72. The applicant maintained that the accusations against him had been groundless and that the prosecuting authorities had not been in possession of any objective evidence or information that could have given rise to a reasonable suspicion that he had committed the criminal offence of high treason. He further submitted that when the domestic courts had ordered and subsequently extended his detention pending trial, they had failed to examine any evidence, except for the statement which he had given when he had been questioned, in which he had denied the accusations of high treason against him. As regards the video-recordings of the applicant ’ s meetings with alleged agents of foreign intelligence services, the individuals whom he had met were representatives of Armenian non-governmental organisations, and those video-recordings had not been submitted to the trial court until December 2015. 73. The applicant further argued that the domestic courts had failed to provide relevant and sufficient reasons justifying his pre-trial detention. In particular, he submitted that when the domestic courts had ordered and repeatedly extended his detention, they had merely cited the relevant legal provisions without assessing his particular circumstances. (ii) The Azerbaijani Government 74. The Azerbaijani Government submitted that the applicant had been detained on reasonable suspicion of having committed high treason, which constituted a very serious criminal offence. The existence of reasonable suspicion had been corroborated by information and evidence, including video-recordings concerning the applicant ’ s meetings with representatives of foreign intelligence services and his receipt of money from them. It appeared from the procedural decisions that the prosecuting authorities had been in possession of such information and had submitted it to the domestic courts, indicating in particular some specific dates and venues of those meetings. In that connection, the Azerbaijani Government submitted that there had been sufficiently specific information in the present case to raise a reasonable suspicion that the applicant had committed a criminal offence. 75. The Azerbaijani Government further submitted that the domestic courts had provided relevant and sufficient reasons justifying the need for the applicant ’ s pre-trial detention. (iii) The third party 76. Third-party comments submitted by the Helsinki Foundation for Human Rights, Human Rights House Foundation and Freedom Now mainly concerned the situation of human rights defenders and journalists in Azerbaijan. Relying on the Court ’ s case-law, the third parties expressed their concern about the Azerbaijani courts ’ widespread practice of imposing pre-trial detention on such persons in the absence of any reasonable suspicion regarding the commission of a criminal offence. (b) The Court ’ s assessment 77. The Court refers to the general principles established in its case-law set out in the judgments of Rasul Jafarov v. Azerbaijan (no. 69981/14, §§ 114-118, 17 March 2016), and Rashad Hasanov and Others v. Azerbaijan ( nos. 48653/13 and 3 others, §§ 91-96, 7 June 2018), which are equally pertinent in the present case. 78. Turning to the particular circumstances of the present case, the Court observes that it is undisputed between the parties that the applicant met with L.B. and other people on various dates in 2008 and 2009. It is also undisputed between the parties that those meetings took place within the framework of various international conferences in which the applicant participated as a political analyst and journalist (see paragraph 24 above). In this context the applicant was charged with the criminal offence of high treason as provided for by Article 274 of the Criminal Code, on account of his alleged espionage activity to benefit foreign intelligence services. 79. The Court notes that the applicant complained that there had been no reasonable suspicion against him throughout the entire period of his detention, including during the initial period following his arrest and the subsequent periods when his pre-trial detention had been authorised and extended by court orders. He maintained the same complaint before the Court. In this connection, the Azerbaijani Government submitted that the applicant had been detained on reasonable suspicion of having committed a criminal offence. In particular, they noted that the existence of reasonable suspicion had been corroborated by information and evidence, including video-recordings concerning the applicant ’ s meetings with representatives of foreign intelligence services and his receipt of money from them. They further referred to procedural decisions which indicated that the prosecuting authorities had been in possession of relevant information in that regard and had submitted that information to the domestic courts. 80. The Court observes at the outset that the fact that the prosecuting authorities possessed and submitted to the domestic courts information indicating dates and venues of the applicant ’ s meetings with L.B. and others, a fact which was not contested by the applicant, cannot in itself constitute sufficient support for a reasonable suspicion that the applicant had committed the criminal offence of high treason with which he was charged. In that connection, without speculating on the existence of any links between L.B. and the others and the Armenian intelligence services, the Court notes that, in the instant case, the applicant was not charged with the criminal offence of high treason because of the meetings that he had had with the above-mentioned individuals, but on account of his alleged espionage activity – providing the foreign intelligence services with information collected at their request, together with photographs and technical drawings (see paragraph 25 above). 81. In that connection, the Court notes that the Azerbaijani Government referred in a general way to the information and evidence which, according to them, corroborated the existence of a reasonable suspicion that the applicant had committed the criminal offence of high treason, without specifying the content of the relevant information and evidence. The only particular pieces of evidence to which they expressly referred were video ‑ recordings of what were alleged to have been meetings between the applicant and representatives of foreign intelligence services and his receipt of money from them. Without speculating on the content of those video ‑ recordings or their relevance to the particular case, the Court observes that it does not appear from the Nasimi District Court ’ s decision of 21 April 2014 or any other decision of the domestic courts ordering and extending the applicant ’ s pre-trial detention that any video-recording was ever submitted to the courts, since the domestic courts ’ decisions did not refer to that kind of material (see and compare Yagublu v. Azerbaijan, no. 31709/13, § 60, 5 November 2015, and Rustamzade v. Azerbaijan, no. 38239/16, § 47, 7 March 2019). 82. In this regard, the Court also notes the decision of the Plenum of the Supreme Court of 3 November 2009. That decision required domestic courts to subject prosecuting authorities ’ applications for an accused to be remanded in custody to close scrutiny, and to verify the existence of a suspicion against the accused by making use of their power under Article 447.5 of the CCrP to request and review the “initial evidence” in the prosecution ’ s possession (see reference in paragraph 65 above). In the present case, the respondent Government have not demonstrated that the above-mentioned requirements were taken into account (compare Ilgar Mammadov v. Azerbaijan, no. 15172/13, § 97, 22 May 2014, and Yagublu, cited above, § 61). 83. Furthermore, the Court cannot overlook the fact that although in a statement dated 17 July 2014 the investigating authorities referred to the existence of alleged Internet correspondence between the applicant and L.B. as a new relevant fact demonstrating that the applicant had committed the criminal offence of high treason (see paragraph 41 above), none of the domestic court decisions extending the applicant ’ s pre-trial detention after 17 July 2014 ever referred to the existence of such correspondence as confirmation that there was a reasonable suspicion that the applicant had committed the criminal offence of high treason. 84. The Azerbaijani Government also failed, even in the proceedings before the Court, to present any material that would satisfy an objective observer that the applicant might have committed a criminal offence (see Lazoroski v. the former Yugoslav Republic of Macedonia, no. 4922/04, § 48, 8 October 2009 ). 85. The Court is mindful of the fact that the applicant ’ s case went to trial and he was convicted. However, that does not affect its findings in connection with the present complaint, where it is called upon to examine whether the disputed deprivation of the applicant ’ s liberty was justified on the basis of the information or facts available at the relevant time. In this connection, having regard to the above analysis, the Court finds that the material put before it does not meet the minimum standard set by Article 5 § 1 (c) of the Convention for the reasonableness of a suspicion required for an individual ’ s arrest and continued detention. Accordingly, it has not been demonstrated in a satisfactory manner that during the period under the Court ’ s consideration in the present case the applicant was deprived of his liberty on “reasonable suspicion” of having committed a criminal offence. 86. There has accordingly been a violation of Article 5 § 1 of the Convention. 87. Having regard to the above finding, the Court does not consider it necessary to examine separately under Article 5 § 3 of the Convention whether the domestic authorities provided relevant and sufficient reasons justifying the need for the applicant ’ s continued pre-trial detention (see Lukanov v. Bulgaria, 20 March 1997, § 45, Reports of Judgments and Decisions 1997 ‑ II; Ilgar Mammadov, cited above, § 102; and Yagublu, cited above, § 64 ). B. Alleged violation of Article 5 § 1 of the Convention concerning the alleged unlawfulness of the applicant ’ s detention from 19 to 20 November 2014 88. The applicant complained that his detention in the absence of a court order from 19 to 20 November 2014 had been unlawful and in breach of Article 5 § 1 of the Convention. 1. Admissibility 89. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 2. Merits (a) The parties ’ submissions 90. The applicant reiterated that his detention from 19 to 20 November 2014 had been unlawful, as he had been detained during that period in the absence of a court order. 91. The Azerbaijani Government submitted that the applicant ’ s pre-trial detention had been extended up to 19 November 2014 (inclusive) by the Nasimi District Court ’ s decision of 15 July 2014. On 20 November 2014 the same court had again extended the applicant ’ s pre-trial detention period. (b) The Court ’ s assessment 92. It is clear from the documents in the case file, and it was not disputed by the parties, that the period of the applicant ’ s pre-trial detention authorised by the Nasimi District Court ’ s detention order of 15 July 2014 expired at midnight on 19 November 2014. At a court hearing held at 4 p.m. on 20 November 2014 the Nasimi District Court again decided to extend the applicant ’ s pre-trial detention period (see paragraph 47 above). Accordingly, during the period from midnight on 19 November to 4 p.m. on 20 November 2014, namely for sixteen hours, the applicant was detained without any judicial order authorising his detention. 93. The Court notes that the applicant ’ s detention during that period was not based on a court decision and was therefore unlawful within the meaning of Article 5 § 1 of the Convention. There has accordingly been a violation of Article 5 § 1 of the Convention on that account. C. Alleged violation of Article 5 § 4 of the Convention 94. The applicant complained that the domestic courts had failed to address his specific arguments in support of his release, and that his lawyers had not been informed of the date and place of the Nasimi District Court ’ s hearing of 20 November 2014 on the further extension of his detention. Article 5 § 4 of the Convention provides as follows: “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” 1. Admissibility 95. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. 2. Merits (a) The parties ’ submissions 96. The applicant reiterated his complaint and maintained that the domestic courts had failed to respond to any of the relevant arguments against detention that he had repeatedly raised before them. He further argued that his lawyers had not been informed of the date and venue of the Nasimi District Court ’ s hearing of 20 November 2014. 97. The Azerbaijani Government submitted that the applicant and his lawyers had been heard by the domestic judges and had been able to put questions to the prosecuting authority during the court hearings. Nothing in the case file indicated that the proceedings had not been adversarial or had otherwise been unfair. The material in the case file, including the records of court hearings, showed that the judges had heard the applicant ’ s arguments and had taken the decisions they considered to be the most appropriate in the circumstances. They further submitted that the Nasimi District Court ’ s hearing of 20 November 2014 had been held in the presence of the applicant, who had been represented by a lawyer. (b) The Court ’ s assessment 98. The Court refers to the general principles established in its case-law set out in the judgments of Rasul Jafarov (cited above, §§ 140-42) and Mammadli v. Azerbaijan ( no. 47145/14, §§ 72-74, 19 April 2018), which are equally pertinent in the present case. 99. Turning to the particular circumstances of the present case, the Court observes that on each occasion the issues regarding the ordering and extension of the applicant ’ s pre-trial detention were decided by courts at two levels of jurisdiction, namely the Nasimi District Court as the first ‑ instance court, and the Baku Court of Appeal as the appellate court. As the Court has observed above, the domestic courts in the present case consistently failed to verify the reasonableness of the suspicion underpinning the applicant ’ s arrest (see paragraphs 81-83 above). In their decisions, using short, vague and stereotyped formulae for rejecting the applicant ’ s complaints as unsubstantiated, the domestic courts limited their role to one of mere automatic endorsement of the prosecution ’ s applications, and they cannot be considered to have conducted a genuine review of the “lawfulness” of the applicant ’ s detention. That is contrary not only to the requirements of Article 5 § 4, but also to those of domestic law as interpreted and clarified by the Plenum of the Supreme Court (see reference in paragraph 65 above). 100. The foregoing considerations are sufficient to enable the Court to conclude that the applicant was not afforded proper judicial review of the lawfulness of his detention. Accordingly, there has been a violation of Article 5 § 4 of the Convention. 101. Having regard to the above finding, the Court does not consider it necessary to examine separately whether the absence of the applicant ’ s chosen lawyers from the Nasimi District Court ’ s hearing of 20 November 2014 constituted a violation of Article 5 § 4 of the Convention. D. Alleged violation of Article 6 § 2 of the Convention 102. The applicant complained that the joint statement made by the Prosecutor General ’ s Office and the MNS on 17 July 2014 (see paragraph 41 above) had infringed his right to the presumption of innocence. Article 6 § 2 of the Convention provides as follows: “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.” 1. Admissibility 103. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 2. Merits (a) The parties ’ submissions 104. The applicant maintained his complaint and submitted that the impugned statement had amounted to an infringement of his right to the presumption of innocence. In particular, he argued that the statement unequivocally indicated that he had transmitted information containing State and military secrets to the Armenian intelligence services. 105. The Azerbaijani Government submitted that the impugned joint statement had had the aim of providing information to the public about the status of the investigation and countering the dissemination of inaccurate and distorted information about it. They further submitted that the statement had not depicted the applicant as a criminal and had not violated his right to the presumption of innocence. (b) The Court ’ s assessment 106. The Court points out that it has already found a breach of Article 6 § 2 of the Convention in a number of cases against Azerbaijan on account of the choice of words used by the investigating authorities in their statements to the press which prejudged the assessment of facts by the courts and encouraged the public to believe that the applicants were guilty before they had been proved guilty in accordance with the law (see Farhad Aliyev v. Azerbaijan, no. 37138/06, §§ 220-27, 9 November 2010; Muradverdiyev v. Azerbaijan, no. 16966/06, §§ 105-09, 9 December 2010; and Ilgar Mammadov, cited above, § 127-28). 107. The Court observes that, in the present case, the impugned statement by the Prosecutor General ’ s Office and the MNS was not made immediately after the applicant ’ s arrest in April 2014, but in July 2014, more than three months after his arrest, when he was in pre-trial detention. The Court takes note of the Azerbaijani Government ’ s submission that the purpose of the impugned statement was to inform the public about the status of the ongoing criminal investigation. Given that the applicant was a well ‑ known journalist, the authorities might have considered it necessary to keep the public informed of the criminal accusations against him. 108. However, the Court considers that the statement, assessed as a whole, was not made with the necessary discretion and circumspection. Although the first and second paragraphs of the statement did not use any wording presenting the applicant as guilty, but contained brief information about the accusations against him when he had been arrested and placed in pre-trial detention in April 2014, subsequent paragraphs of the statement unreservedly attributed various criminal acts to the applicant. In particular, in stating “it has been established that ... [the applicant] transferred a technical drawing accompanied with photographs describing the exact location of military units, an aerodrome and other strategic State installations which constitute State and military secrets” and “[the applicant] transferred information, photographs and technical drawings of the indicated areas and other military installations”, the investigating authorities risked prejudging the assessment of the facts by the courts and encouraging the public to believe that the applicant was guilty before he had been proved guilty in accordance with the law. Moreover, that unreserved attribution of the above-mentioned criminal acts to the applicant was described in the statement as a new relevant fact which had recently come to light in the investigation, which largely undermined the impact of the neutral wording used at the beginning of the statement. Therefore, the overall manner in which the statement was formulated left the reader in no doubt that the applicant had committed the criminal offence of high treason. 109. There has accordingly been a violation of Article 6 § 2 of the Convention. E. Alleged violation of Article 8 of the Convention 110. Relying on Articles 8 and 10 of the Convention, the applicant complained that the restrictions which the investigator had placed on his meetings, correspondence and telephone conversations with his family members and the outside world, and on his right to receive and subscribe to newspapers and magazines, had amounted to a violation of his rights protected under the Convention. Having regard to the circumstances of the case, the Court considers that the present complaint falls to be examined solely under Article 8 of the Convention, which reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 1. Admissibility 111. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 2. Merits (a) The parties ’ submissions 112. The applicant maintained his complaint, submitting that the interference had not been in accordance with the law and necessary in terms of Article 8 § 2 of the Convention. He argued that the investigator ’ s decision of 7 May 2014 had simply referred to the accusations against him and the provisions of the relevant law, without providing evidence to show why it had been necessary to impose the restrictions. He further contested the Azerbaijani Government ’ s assertion that he had not disputed before the domestic court the fact that the impugned restrictions imposed by the investigator had been open-ended. 113. The Azerbaijani Government agreed that there had been an interference with the applicant ’ s rights protected under Article 8 of the Convention. That interference had been implemented in accordance with Articles 17.3 and 19.8 of the Law of 22 May 2012, and had been necessary in a democratic society in the interests of national security and for the prevention of crime. 114. The Azerbaijani Government further submitted that the prosecuting authorities and the domestic courts had rightly considered that the applicant, who had been suspected of transferring secret information to foreign intelligence services, would have been able to transfer such information to his partners through visitors or receive it through press publications. According to the Azerbaijani Government, although it might be considered that the proportionality of the impugned measures had been undermined by the fact that they had been open-ended, the applicant had failed to raise that question before the domestic authorities. (b) The Court ’ s assessment ( i ) Whether there was interference 115. As is well established in the Court ’ s case-law, upon being imprisoned, a person forfeits the right to liberty, but continues to enjoy all other fundamental rights and freedoms, including the right to respect for family life, so that any restriction on those rights must be justified in each individual case (see Khoroshenko v. Russia [GC], no. 41418/04, §§ 116-17, ECHR 2015, and Andrey Smirnov v. Russia, no. 43149/10, § 35, 13 February 2018). In the present case, the Azerbaijani Government acknowledged that the imposition of the restrictions on the applicant ’ s contact with his family and the outside world had constituted an interference with his rights protected under Article 8 of the Convention (see paragraph 113 above). The Court sees no reason to hold otherwise, and considers that the impugned measures constituted an interference with the exercise of the applicant ’ s right to respect for his private and family life and correspondence (see, among many other authorities, Khoroshenko, cited above, §§ 107-09; Pakhtusov v. Russia, no. 11800/10, § 23, 16 May 2017; Lebois v. Bulgaria, no. 67482/14, §§ 63-64, 19 October 2017; Resin v. Russia, no. 9348/14, § 24, 18 December 2018; and, mutatis mutandis, Mesut Yurtsever and Others v. Turkey, nos. 14946/08 and 11 others, § 102, 20 January 2015). (ii) Whether the interference was justified 116. Such an interference will be in breach of Article 8 of the Convention unless it can be justified under paragraph 2 of Article 8 as being “in accordance with the law”, pursuing one or more of the legitimate aims listed therein, and being “necessary in a democratic society” in order to achieve the aim or aims concerned. (α) Whether the interference was in accordance with the law 117. The Court notes that while the Azerbaijani Government referred to Articles 17.3 and 19.8 of the Law of 22 May 2012 as being the legal basis for the imposition of the impugned measures, the applicant argued in a general way that the interference in question had not been in accordance with the law. The Court observes that Article 17.3 of the Law of 22 May 2012 provided that an investigating authority could restrict a detainee ’ s right to correspondence for the purposes of ensuring a criminal investigation. Article 19.8 of the Law of 22 May 2012 also provided that an investigating authority could restrict a detainee ’ s right to have visits and telephone calls for the same purposes (see paragraph 64 above). The Court therefore accepts that the restrictions imposed on the applicant ’ s right to have telephone calls and correspondence and visits from people other than his lawyers had a legal basis in domestic law, and that the law itself was clear, accessible and sufficiently precise. 118. However, as regards the part of the investigator ’ s decision of 7 May 2014 which imposed restrictions on the applicant ’ s right to receive and subscribe to any socio-political newspaper or magazine, the Court observes that neither Article 17.3 nor Article 19.8 of the Law of 22 May 2012 provided for the possibility to impose such a restriction on a detainee. Moreover, Article 23 of the Law of 22 May 2012, which governs a detainee ’ s right to receive and subscribe to a newspaper or magazine, provided for restrictions only in respect of publications propagandising war, violence, extremism, terror and cruelty, or inciting racial, ethnic and social enmity and hostility, or containing pornography (see paragraph 64 above). The Azerbaijani Government also failed to refer to any legal provision laying down restrictions in respect of receiving and subscribing to socio ‑ political newspapers or magazines. Consequently, it is not possible to establish that the interference with the applicant ’ s right in this regard had a legal basis in domestic law, and thus the Court concludes that the interference with the applicant ’ s right to receive and subscribe to socio ‑ political newspapers or magazines was not in accordance with the law within the meaning of paragraph 2 of Article 8. 119. The Court will therefore continue to examine whether the interference was necessary in a democratic society for one of the aims enumerated in Article 8 § 2, but only as regards the interference with the applicant ’ s right to visits, telephone calls and correspondence. (β) Whether the interference pursued a legitimate aim 120. The Court accepts that the interference pursued the legitimate aim of preventing crime (see Trosin v. Ukraine, no. 39758/05, § 40, 23 February 2012, and Öcalan v. Turkey (no. 2), nos. 24069/03 and 3 others, § 158, 18 March 2014). (γ) Whether the interference was “necessary in a democratic society” 121. The Court refers to the general principles established in its case-law and set out in the judgment of Khoroshenko (cited above, §§ 118-21), which are equally pertinent in the present case. 122. Turning to the circumstances of the present case, the Court observes at the outset that although the investigator ’ s decision of 7 May 2014 was a decision “restricting some of the accused ’ s rights at [his] place of detention” (see paragraph 29 above), it appears from the nature and scope of the measures imposed by the investigator that the decision amounted to a de facto outright ban on the applicant having any contact (meetings, telephone calls or correspondence) with the outside world, except for contact with his lawyers. However, neither the investigator nor the domestic courts put forward any relevant justification in support of the imposition of such harsh and all ‑ encompassing measures. In particular, the domestic authorities confined themselves to referring to the necessity to protect the confidentiality of the investigation and prevent the disclosure of information about the investigation, without providing any explanation as to why the impugned measures were appropriate and necessary in the present case. They also failed to refer to any factual element or information indicating that there was a risk that the confidentiality of the investigation would be undermined or that information about the investigation would be disclosed if the impugned measures were not taken. 123. The Court notes that the Azerbaijani Government also failed to submit any relevant explanation as to why it had been necessary to separate the applicant from his family and the outside world. In that connection, it cannot accept the Azerbaijani Government ’ s assertion that the applicant, as a person suspected of transferring secret information to foreign intelligence services, would have been able to transfer such information through visitors. The Court is unable to discern any factual elements which could have warranted such stringent limitations on the family visits in the instant case, since none of the applicant ’ s family members were in any way involved in the criminal proceedings in question, and there were no apparent indications that there was a risk of secret information being transferred through his family members (compare Moiseyev v. Russia, no. 62936/00, § 255, 9 October 2008, and Andrey Smirnov, cited above, § 49). 124. The foregoing considerations are sufficient to enable the Court to conclude that the reasons given by the domestic authorities in support of the restriction of the applicant ’ s rights were not relevant and sufficient. 125. There has accordingly been a violation of Article 8 of the Convention. F. Alleged violation of Article 18 of the Convention, taken in conjunction with Article 5 of the Convention 126. The applicant complained under Article 18 of the Convention in conjunction with Article 5 that his Convention rights had been restricted for purposes other than those prescribed in the Convention. Article 18 provides: “The restrictions permitted under [the] Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.” 1. Admissibility 127. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 2. Merits (a) The parties ’ submissions 128. The applicant submitted that the restrictions in the present case had been applied with the intention of isolating him, as a journalist and political analyst, from his professional activity. As a result of his detention, he had been prevented from carrying out journalistic activities for a period of two years, and shortly after his arrest publication of the Zerkalo newspaper had ceased. Therefore, the actual purpose of the impugned measures had been to silence and punish him for his activities as a journalist and political analyst. 129. Relying on Khodorkovskiy v. Russia (no. 5829/04, 31 May 2011) and Khodorkovskiy and Lebedev v. Russia (nos. 11082/06 and 13772/05, 25 July 2013), the Azerbaijani Government submitted that the restrictions imposed by the State in the present case had not been applied for any purpose other than one envisaged by Article 5, and strictly for the proper investigation of the serious criminal offence allegedly committed by the applicant. (b) The Court ’ s assessment 130. The Court refers to the general principles established in its case-law and set out in the judgment of Merabishvili v. Georgia ( [GC], no. 72508/13, §§ 287-317, 28 November 2017), which are equally pertinent in the present case. 131. The Court considers it necessary to note at the outset that it has already found that the applicant ’ s arrest and pre-trial detention were not carried out for a purpose prescribed under Article 5 § 1 (c) of the Convention (see paragraphs 77-86 above), as the charges against him were not based on a “reasonable suspicion” within the meaning of Article 5 § 1 (c) of the Convention (contrast Merabishvili, cited above, § 318, Khodorkovskiy, cited above, § 258, and compare Lutsenko v. Ukraine, no. 6492/11, § 108, 3 July 2012; see also Ilgar Mammadov, cited above, § 141, and Rasul Jafarov, cited above, § 156 ). Therefore, the present case should be distinguished from cases with a plurality of purposes, where a restriction is applied both for an ulterior purpose and a purpose prescribed by the Convention (see Merabishvili, cited above, §§ 318-54). 132. However, the mere fact that the restriction of the applicant ’ s right to liberty did not pursue a purpose prescribed by Article 5 § 1 (c) is not in itself a sufficient basis for conducting a separate examination of a complaint under Article 18, unless the claim that a restriction has been applied for a purpose not prescribed by the Convention appears to be a fundamental aspect of the case. Therefore, it remains to be seen whether there is proof that the authorities ’ actions were actually driven by an ulterior purpose (see Rashad Hasanov and Others, cited above, § 120). In this regard, the Court reiterates that there is no reason for it to restrict itself to direct proof in relation to complaints under Article 18 of the Convention or apply a special standard of proof to such allegations (see Merabishvili, cited above, § 316), as depending on the circumstances of the case, an ulterior purpose cannot always be proved by pointing to a particularly inculpatory piece of evidence which clearly reveals an actual reason (for example, a written document, as in the case of Gusinskiy v. Russia (no. 70276/01, ECHR 2004 ‑ IV) or a specific isolated incident. 133. The Court observes that, in the present case, although the applicant complained briefly and in a general way that the restrictions in question had been applied by the Azerbaijani Government with the intention of isolating him, as a journalist and political analyst, from his professional activity, he failed to specify his allegation that there was such an ulterior purpose. In particular, in his submissions to the Court, he failed to identify or quote any action which he had taken as a journalist and political analyst or any article or piece of writing that he had produced in that capacity which could, according to him, have been behind the restrictions applied against him (contrast Ilgar Mammadov, cited above, § 136; Rasul Jafarov, cited above, §§ 147-50; Mammadli, cited above, §§ 85-87; Rashad Hasanov and Others, cited above, §§ 112-13; and Aliyev v. Azerbaijan, nos. 68762/14 and 71200/14, §§ 192-94, 20 September 2018). 134. Having regard to the applicant ’ s submissions and all the material in its possession, the Court considers that the evidence before it does not enable it to find beyond reasonable doubt that the applicant ’ s arrest and detention pursued any ulterior purpose. 135. There has accordingly been no violation of Article 18 of the Convention taken in conjunction with Article 5 of the Convention. II. COMPLAINTS AGAINST TURKEY Alleged violation of Articles 5 and 10 of the Convention 136. The applicant complained under Article 5 §§ 1, 2, 3 and 4 of the Convention that he had been unlawfully deprived of his liberty by the Turkish authorities, that he had not been duly informed of the reasons for his deprivation of liberty, that he had not been brought promptly before a judge following his detention, and that he had been denied access to a lawyer. 137. The applicant further argued under Article 10 of the Convention that the revocation of his press card by the Turkish authorities had amounted to a violation of his right to freedom of expression. 1. The parties ’ submissions 138. With regard to the applicant ’ s complaint under Article 5 § 3, the Turkish Government claimed that the applicant had not been arrested on suspicion of having committed a crime within the meaning of Article 5 § 1 (c) of the Convention, but for the purposes of his deportation, in compliance with Article 5 § 1 (f). They argued that this part of the application should therefore be declared inadmissible for being incompatible ratione materiae with Article 5 § 3 of the Convention. 139. The Turkish Government further argued that the applicant ’ s remaining complaints should also be declared inadmissible pursuant to Article 35 § 1 of the Convention, as he had not exhausted the remedies available in Turkish law in respect of those complaints. The Turkish Government claimed that under the relevant provisions of Law no. 6458, which had entered into force on 11 April 2014, the applicant could have brought cases before magistrates ’ courts and administrative courts, to object to his administrative detention and deportation respectively. The applicant could also have brought an administrative action in respect of the revocation of his press card, under Article 125 of the Constitution, which provided that the administration was liable to provide compensation for any damage arising from its actions. However, the applicant had not used any of those remedies. 140. The Turkish Government added that as of 23 September 2012 the Turkish Constitutional Court had begun to accept applications from individuals who had already exhausted all other available and ordinary remedies in relation to their complaints. The Court had found that an individual application to the Constitutional Court offered, in principle, a direct and expeditious remedy for violations of the rights and freedoms protected by the Convention, and that applicants were required to avail themselves of that new remedy before lodging an application with the Court (see, for instance, Uzun v. Turkey ( dec. ), no. 10755/13, §§ 67 and 69-70, 30 April 2013, and X. v. Turkey ( dec. ), no. 61042/14, § 8, 19 May 2015). The Turkish Government stated that the applicant had lodged his application with the Court before resorting to the individual application remedy available in Turkey, which went against the subsidiary nature of the Convention mechanism. 141. In connection with his complaints under Article 5 § 3 of the Convention, the applicant argued that as the developments following the revocation of his press card and his arrest clearly showed, he had been arrested and subsequently expelled by the Turkish authorities on suspicion of having committed an offence in Azerbaijan. In this regard, he claimed that his expulsion had amounted to extradition in disguise. 142. The applicant further claimed that he had not been able to make use of the remedies available before the Turkish courts, because he had not been provided with the assistance of a lawyer prior to his expulsion, and he had been placed in detention immediately upon his arrival in Azerbaijan. He stated that if he had not been sent to Azerbaijan, he would have lodged the necessary legal actions against the revocation of his press card and residence permit, and the decisions to deport and detain him. He further claimed that following his expulsion from Turkey, he had been deprived of the opportunity to appoint a Turkish lawyer to represent him before the Turkish courts, as the Azerbaijani authorities had refused to allow him to use the notary service. However, he added that it would have been pointless to appoint a Turkish lawyer in any event, as the consequences of his expulsion had been irreversible. 2. The Court ’ s assessment (a) Complaint under Article 5 § 3 of the Convention 143. With regard to the applicant ’ s complaint under Article 5 § 3 of the Convention on account of the alleged failure of the Turkish authorities to bring him promptly before a judge following his arrest, the Court notes that the applicant was arrested by the Turkish authorities in the context of immigration controls under Article 5 § 1 (f) (see paragraph 16 above). Even if the applicant had been detained for the purposes of being extradited to Azerbaijan – where he might face criminal charges – as claimed, such detention by the Turkish authorities would similarly fall under the scope of Article 5 § 1 (f), as is clear from the wording of that provision (see, mutatis mutandis, Gallardo Sanchez v. Italy, no. 11620/07, §§ 31 and 32, ECHR 2015 ). However, the requirements of Article 5 § 3 only apply in respect of detention on suspicion of having committed an offence within the meaning of Article 5 § 1 (c). Therefore, Article 5 § 3 does not apply. 144. It follows that this complaint is incompatible ratione materiae with the provisions of the Convention and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention (see, for instance, Musaev v. Turkey, no. 72754/11, § 25, 21 October 2014, and Alimov v. Turkey, no. 14344/13, § 34, 6 September 2016 ). (b) Complaint under Article 5 § 4 of the Convention 145. The Court reiterates that the purpose of Article 5 § 4 is to guarantee to persons who are arrested and detained the right to judicial supervision of the lawfulness of the measure to which they are thereby subjected (see, mutatis mutandis, De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, § 76, Series A no. 12, and Ismoilov and Others v. Russia, no. 2947/06, § 145, 24 April 2008). A remedy must be made available during a person ’ s detention, to allow the individual to obtain a speedy judicial review of its lawfulness. That review should be capable of leading, where appropriate, to release (see, for instance, Abdolkhani and Karimnia v. Turkey, no. 30471/08, § 139, 22 September 2009). 146. Turning to the facts before it, the Court observes that it is not disputed between the parties that the Turkish authorities deprived the applicant of his liberty for a period of approximately twelve hours on 19 April 2014 (see paragraphs 15 and 20 above). The Court therefore notes that the deprivation of liberty in question ended before any judicial review of its lawfulness could take place. It is not for the Court to determine in abstracto whether, had this not been so, the scope of the remedies available in Turkey would have satisfied the requirements of Article 5 § 4 of the Convention. Accordingly, the Court does not find it necessary to examine the admissibility and merits of the applicant ’ s complaint under Article 5 § 4 (see, mutatis mutandis, Slivenko v. Latvia [GC], no. 48321/99, § 158-159, ECHR 2003 ‑ X; Fox, Campbell and Hartley v. the United Kingdom, 30 August 1990, § 45, Series A no. 182; and M.B. and Others v. Turkey, no. 36009/08, § 45, 15 June 2010; and compare Čonka v. Belgium, no. 51564/99, § 55, ECHR 2002 ‑ I, and A.M. v. France, no. 56324/13, § 36, 12 July 2016, where the Court examined the merits of complaints under Article 5 § 4 where deprivation of liberty pending expulsion had lasted five days and three and a half days respectively). (c) Remaining complaints 147. The Court reiterates at the outset the general principles developed in its case-law regarding the rule of exhaustion of domestic remedies under Article 35 § 1 of the Convention (see, for instance, Sargsyan v. Azerbaijan [GC], no. 40167/06, §§ 115-16, ECHR 2015), and notes in particular that in so far as there exists at national level a remedy enabling the domestic courts to address, at least in substance, the argument of a violation of a given Convention right, that remedy should be used (see, mutatis mutandis, Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 75, 25 March 2014). It is a fundamental feature of the machinery of protection established by the Convention that it is subsidiary to the national systems safeguarding human rights. The Court is concerned with the supervision of the implementation by Contracting States of their obligations under the Convention. It cannot, and must not, take the place of Contracting States, whose responsibility it is to ensure that the fundamental rights and freedoms enshrined therein are respected and protected at domestic level (see, for instance, Gherghina v. Romania ( dec. ) [GC], no. 42219/07, § 83, 9 July 2015). 148. The Court further stresses, in respect of the applicant ’ s complaint under Article 5 § 1, that where such a complaint is mainly based on the alleged unlawfulness of an individual ’ s detention under domestic law, and where that detention has come to an end, an action capable of leading to a declaration that it was unlawful and to a consequent award of compensation is an effective remedy which needs to be exhausted (see, for instance, Gavril Yosifov v. Bulgaria, no. 74012/01, § 42, 6 November 2008 ). 149. The Court notes the Turkish Government ’ s argument that the applicant had various remedies available to him before magistrates ’ and administrative courts to raise his complaints under Articles 5 and 10 of the Convention. The Court further notes that if the applicant deemed those remedies to be inadequate in respect of his particular complaints, he could have brought an individual application before the Constitutional Court as a last resort. In this connection, it reiterates that it has found the procedure available in Turkey of an individual application to the Constitutional Court to be an effective remedy for violations of the rights and freedoms protected by the Convention, and has held that it offers prospects of appropriate redress for complaints under the Convention, including those brought by foreign nationals subjected to administrative detention in Turkey (see, for instance, Z.K. and Others v. Turkey ( dec. ), no. 60831/15, §§ 41-49, 7 November 2017). 150. The Court notes that the applicant in the instant case did not contest the effectiveness of the remedies before the Turkish courts as such, but argued that he had been denied access to those remedies by both the Turkish and Azerbaijani authorities. In this connection, he claimed that he had not been allowed the assistance of a lawyer while he had been detained in Turkey, and that his request to access the notary service to appoint a Turkish lawyer had subsequently been refused in Azerbaijan. 151. The Court observes that the information and documents in the case file support the applicant ’ s allegations in this regard. It acknowledges that, given the short duration of his detention in Turkey, the applicant did not have a reasonable opportunity to raise his complaints before the Turkish courts prior to his deportation from Turkey. It also notes that the applicant ’ s attempts to officially appoint a lawyer practising in Turkey to represent him before the Turkish courts were thwarted by the Azerbaijani authorities. Nevertheless, the Court does not agree that, following his deportation to Azerbaijan, the applicant had no means of accessing the available remedies in Turkey, in particular the individual application remedy before the Constitutional Court. 152. In this connection, the Court notes that in accordance with the relevant provisions of Law no. 6216 on the establishment and rules of procedure of the Turkish Constitutional Court, and the Internal Regulations of that court (noted in paragraphs 66 and 67 above), individual applications could be lodged directly with the Constitutional Court itself, or through national courts or Turkish diplomatic missions abroad. Applications could be lodged by the applicants personally, or by their lawyers or legal representatives. Where applications were not lodged personally, lawyers or legal representatives were required to produce official documents certifying their authority to represent the applicant. However, the failure to submit a valid authority form – or any other required document for that matter – would only result in the application being rejected if the applicant could not submit a valid excuse for such a failure (see sections 47 and 59 of Law no. 6216 and the Internal Regulations, respectively, noted in paragraphs 66 and 67 above). 153. The Court considers, in the light of the foregoing, that even if the other remedies mentioned by the Government remained inaccessible to the applicant, his inability to issue a notarised power of attorney did not as such prevent him from making use of the individual application remedy before the Constitutional Court. The relevant domestic law as noted above clearly allowed him to explain in his application form why he was not in a position to submit official authorisation regarding his representation. This is particularly so considering that the applicant had the benefit of the assistance of a lawyer of his own choosing in Azerbaijan from the very first days of his detention (see paragraph 27 above). Any doubts that the applicant may have harboured regarding the prospects of success of such proceedings did not exempt him from the obligation to try that avenue (see, mutatis mutandis, Vučković and Others, cited above, §§ 74 and 84). If, despite the explanations which he had provided, the Turkish Constitutional Court had refused his individual application for lack of a valid authority form, then it would have been open to the applicant to lodge an application with the Court. 154. As for the applicant ’ s claim that it would have been pointless to initiate legal proceedings in Turkey, having regard to the irreversible consequences of his expulsion, the Court stresses that the applicant ’ s complaints against Turkey were limited to certain irregularities with his deprivation of liberty (Article 5) and the alleged violation of his freedom of expression on account of the revocation of his press card (Article 10). They did not as such involve any allegation that the applicant ’ s deportation itself had interfered with any of his rights protected under the Convention requiring effective intervention by a judicial authority prior to his deportation (see, for instance, Čonka, cited above, § 79; M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 293, ECHR 2011; Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, §§ 197-200, ECHR 2012; and De Souza Ribeiro v. France [GC], no. 22689/07, §§ 84 ‑ 100, ECHR 2012). 155. In these circumstances, the Court reaffirms that while the remedy before the Constitutional Court may not have had the effect of erasing all consequences of the applicant ’ s deportation, it was fully capable, like an application to the Court, of leading to an examination of his allegations under Article 5 §§ 1 and 2 and Article 10 of the Convention, and it offered prospects of appropriate redress (see, mutatis mutandis, Ahmet Tunç and Others v. Turkey ( dec. ), nos. 4133/16 and 31542/16, §§ 107 and 115, 29 January 2019). In this connection, the Court reiterates that the machinery of complaint to the Court is subsidiary to national systems safeguarding human rights (see, De Souza Ribeiro, cited above, § 77), and that in so far as there exists at national level a remedy enabling the domestic courts to address, at least in substance, the argument of a violation of a given Convention right, that remedy should be used (see, mutatis mutandis, Vučković and Others, cited above, § 75). 156. The Court therefore finds that, in the circumstances of the present application, the applicant cannot be considered to have complied with the rule on the exhaustion of domestic remedies laid down in Article 35 of the Convention. The applicant ’ s complaints under Article 5 §§ 1 and 2 and Article 10 of the Convention raised against Turkey must therefore be rejected under Article 35 § 1 of the Convention for non ‑ exhaustion of domestic remedies. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 157. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 158. With regard to his complaints against Azerbaijan, the applicant claimed 10,000 euros (EUR) in respect of pecuniary damage and EUR 30,000 in respect of non-pecuniary damage. 159. The Azerbaijani Government contested the applicant ’ s claim in respect of pecuniary damage, submitting that he had failed to substantiate it. As regards the claim in respect of non-pecuniary damage, the Azerbaijani Government contested the amount claimed as unsubstantiated and excessive, submitting that, in any event, a finding of a violation would constitute sufficient just satisfaction. 160. The Court considers that, even assuming that a causal link could be established between the pecuniary damage alleged and the violations found, the applicant did not submit the relevant documentary evidence supporting this claim (see Haziyev v. Azerbaijan, no. 19842/15, § 48, 6 December 2018), it therefore rejects this claim. However, the Court considers that the applicant has suffered non-pecuniary damage which cannot be compensated for solely by the finding of violations, and that compensation should thus be awarded. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant the sum of EUR 20,000 under this head, plus any tax that may be chargeable on this amount. B. Costs and expenses 161. The applicant claimed EUR 5,000 for the costs and expenses incurred in the proceedings before the Court. He also claimed EUR 300 for postal expenses. 162. The Azerbaijani Government submitted that the applicant ’ s claim for costs and expenses was unsubstantiated and was not supported by any documentary evidence. 163. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. The Court also points out that under Rule 60 of the Rules of Court, any claim for just satisfaction must be itemised and submitted in writing together with the relevant supporting documents, failing which the Chamber may reject the claim in whole or in part (see Malik Babayev v. Azerbaijan, no. 30500/11, § 97, 1 June 2017). In the present case, the applicant failed to produce any documentary evidence in support of his claim for costs and expenses. Therefore, the Court dismisses the claim for costs and expenses. C. Default interest 164. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation, by Azerbaijan, of Article 5 § 1 (right to liberty and security) of the Convention, over the absence of a reasonable suspicion of a criminal offence, and over the applicant’s detention for 16 hours in the absence of a court order. It also held that there had been a violation, by Azerbaijan, of Article 5 § 4 (judicial review of the lawfulness of detention) of the Convention, on account of the domestic courts’ failure to assess the applicant’s arguments in favour of his release. The Court held, however, that there had been no violation, by Azerbaijan, of Article 18 of the Convention in conjunction with Article 5, finding that, having regard to the applicant’s submissions and all the material in its possession, it could not conclude beyond reasonable doubt that his arrest and detention had pursued any ulterior purpose. The Court observed in particular that the applicant had complained briefly and in a general way that the restrictions in question had been applied by the Azerbaijani Government with the intention of isolating him, as a journalist and political analyst, from his professional activity. However, he had failed to specify what in his work could have been behind the restrictions placed on him. |
94 | Taking of children into care | THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 27. The applicants complained that their right to respect for family life had been violated by their separation from their child, that their right to moral and physical integrity under the private life aspect had been violated, that their right to reputation had been violated, affecting their right to establish and develop relationships with other human beings and that they had been deprived of the right to have inherent procedural safeguards in place and observed to ensure the protection of the above rights. Article 8 of the Convention provides as relevant: “1. Everyone has the right to respect for his private and family life, .... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. The parties ’ observations 1. The applicants 28. The applicants submitted that they had had no choice but to consent to the interim care order. They argued that it was not a matter of a mere error of medical judgment but a concatenation of events which led to inappropriate social and legal consequences flowing from an erroneous diagnosis, without any appropriate safeguards to prevent it. Once Dr Blumenthal formed the view that M. had suffered a NAI, he discounted all other possibilities and his care was deemed substandard by their expert in the domestic negligence proceedings, Dr Conway. Further the applicants were excluded from all discourse in the matter; A. K. was provided with no translator during her conversations with nursing staff and Dr Blumenthal, and she was given no opportunity to correct mistaken factual assumptions. No weight was given to the fact that they had no prior history with social services or that the health visitor had had no concerns with M. ’ s care, her view not even being sought initially and later being discounted. They pointed out that the failure to order other tests to exclude OI highlighted a complete reluctance to consider other possible causes of the fracture and the possibility of a skin biopsy was never raised at all, excluding them from the decision-making process. They were never given an effective opportunity to deal with allegations, referring to the case of T.P. and K.M. v. the United Kingdom ([GC], no. 28945/95, ECHR 2001 ‑ V). They drew attention to the fact that Dr Paterson had become a totally discredited expert in OI, receiving adverse comments from judges in child care proceedings and being struck off in 2004 for professional misconduct. Finally, the notes of the triage nurse contributed to highly negative assumptions being made about A. K. in particular and about the way in which the fracture occurred, influencing not only Dr Blumenthal ’ s diagnosis but also Professor Carty ’ s. Dr Conway was never asked about OI but about Dr Blumenthal ’ s standard of professional care in which his own credentials were impeccable. 29. The applicants emphasised that, while M. was returned home in April 1999, the public care was not revoked until June 1999, so that their rights were affected for nine months and suspicions, anxieties and restrictions lingered on. They emphasised that their much-loved three-month-old first-born baby had been taken away from them and they had been accused of deliberately injuring her. A. K. could no longer be with her 24 hours a day, or throughout the night, as would have happened if she had not been removed and the parents had to endure a daily wrench of separation. 30. Furthermore, the applicants argued that if the interferences did not reach the threshold of severity under Article 3, they disclosed serious interferences with their moral and physical integrity and damage to their reputation, for which no justification has been put forward by the Government, thus constituting a breach of Article 8 in its private life aspect. 2. The Government 31. The Government accepted that the removal of M. from home interfered with family life but submitted that the interference was justified as being fully in accordance with domestic law and necessary to protect M. They pointed out that the separation was less than nine months (only from October 1998 to April 1999), that she lived with her aunt not far from her parents ’ home and saw her parents almost as much as when she was at home due to supervised, but unlimited, access. They considered that the social services had acted reasonably and in M. ’ s best interests in responding to concerns of medical professionals. The possibility of OI was considered from the outset but there was no medical evidence at that stage to support such a diagnosis, an independent expert also finding no bone abnormalities or radiological or clinical evidence of OI. When the second fractures occurred, there was prompt reconsideration of the diagnosis and a third opinion sought which also indicated that no-one could have made a diagnosis of OI in the first instance, the child having a confused history, with lots of discrepancies and an essentially-normal skeletal survey. That expert also cautioned against the utility of urine and other biochemical tests in arriving at a confirmed OI diagnosis. The Government emphasised the extreme difficulty in diagnosing mild OI in a very young infant such as M., requiring a trajectory and progression of the condition over a period of time. They drew attention to the view of the guardian ad litem of M. who stressed that a diagnosis of OI or any other bone disorder could not have been made at the time of the first injury. They argued that the errors in the notes made by the triage nurse at the outset were not determinative or influential. While the applicants placed reliance on their expert in the domestic proceedings, the Government pointed out that he was a consultant paediatrician without any expertise in childhood bone diseases, in particular OI. They rejected as without substance other allegations of breaches of Article 8 concerning physical and moral integrity and damage to reputation and private life. The Court ’ s assessment 1. Concerning family life 32. It is not disputed in the present case that the proceedings instituted as regarded M., and the interim care order which resulted in M. being placed away from the applicants, constituted an interference with the applicants ’ right to respect for their family life within the meaning of the first paragraph of Article 8. It must therefore be determined whether this interference was justified under the second paragraph, namely whether it was “in accordance with the law”, pursued an aim or aims that are legitimate under paragraph 2 of this provision and can be regarded as “necessary in a democratic society”. 33. The Court finds no reason to doubt that the interference complied with the first two criteria, as conforming with domestic law requirements and pursuing the legitimate aim of protecting the rights of others, namely the child who had suffered injury. 34. As to whether the interference was "necessary in a democratic society”, the Court ’ s case-law interprets this phrase as requiring consideration in particular of whether, in the light of the case as a whole, the reasons adduced to justify the measures were “relevant and sufficient”, and whether the decision-making process involved in measures of interference were fair and afforded due respect to the interests safeguarded by Article 8. Account must also be given to the fact that the national authorities have the benefit of direct contact with all the persons concerned. It is not the Court ’ s task to substitute itself for the domestic authorities in the exercise of their responsibilities regarding custody and access issues. While the authorities enjoy a wide margin of appreciation, in particular when assessing the necessity of taking a child into care, a stricter scrutiny is called for in respect of any further limitations, such as restrictions placed by those authorities on parental rights of access (see, amongst many authorities, T.P. and K.M. , cited above, § § 71-72 ). 35. In the present case, the Court notes that the applicants have made various complaints about the conduct of various professionals involved in the case, essentially referring to an accumulation of errors and alleging a lack of safeguards in place to prevent the erroneous diagnosis that the injuries were caused non-accidentally (see paragraph 28 above). 36. The Court would re-iterate that mistaken judgments or assessments by professionals do not per se render child- care measures incompatible with the requirements of Article 8. The authorities, medical and social, have duties to protect children and cannot be held liable every time genuine and reasonably-held concerns about the safety of children vis- à -vis members of their families are proved, retrospectively, to have been misguided. In the present case, it is incontrovertible that M., a baby of only a few months, suffered a serious and unexplained fracture. It is not disputed that OI is a very rare condition and also difficult to diagnose in very small infants. The Court does not consider that the social or medical authorities can be faulted for not reaching an immediate diagnosis of OI or, in the absence of such a diagnosis, acting on the basis that the injury could have been caused by the parents. No doubt it would have been better if the triage nurse had taken more accurate notes as to the family ’ s account of what had happened and trouble had been taken to obtain interpretation in medical staff ’ s conversations with A. K. who did not understand English. However, it is not apparent that this would have dissipated concerns at this early stage since there would still not have been any clear indication of how the fracture had occurred. Furthermore, it may be noted that, even when official interpretation was available, in court, the testimony of A. K. was not found to be convincing. 37. The applicants ’ complaints very much amount to criticising the way in which the professionals, medical and legal, were prepared to suspect the worst on the information available to them and failed immediately to perceive their innocence or give them the benefit of any doubt. Nonetheless, it must also be noted that, while an interim care order was issued with a view to protecting M., steps were also taken to place the baby within her extended family and in close proximity to the applicants ’ own home so that they could easily and frequently visit. And crucially, as soon as a further fracture occurred outwith the applicants ’ care, further tests were quickly pursued and within weeks M. was returned home. 38. The Court further notes that M. was removed from the applicants ’ care for a period of some seven months. It is not impressed by the applicants ’ complaint that the care order was not removed for some further two months. This was largely a formality, the further lapse of time not imposing any identifiable concrete prejudice. As to the time which elapsed before the correct diagnosis was made, the Government referred to the medical opinions of two doctors obtained at the time of diagnosis of OI which considered that there was no fault in not reaching this conclusion at the time of the first injury. The applicants emphasised that one of these doctors was later totally discredited. However, the Court is not called upon to adjudicate, retrospectively, as to the best medical practice or the most reliable expert opinion. It is satisfied that there were relevant and sufficient reasons for the authorities to take protective measures, such measures being proportionate in the circumstances to the aim of protecting M. and which gave due account and procedural protection to the applicants ’ interests, and without any lack of the appropriate expedition. 39. There has, accordingly, been no violation of Article 8 of the Convention in this regard. 2. Concerning other aspects of Article 8 40. The applicants also claimed that the events complained of above invaded their physical and moral integrity and damaged their reputation in violation of Article 8 of the Convention. Having regard to its conclusions above as to the lawfulness and necessity of the measures, the Court considers that in the circumstances no separate issue arises. II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 41. The applicants complained that they had no effective remedy for their above complaints, invoking Article 13 of the Convention which provides: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. The parties ’ submissions 42. The applicants argued that Article 13 was applicable and that none of the remedies referred to by the Government would have satisfied that provision. As regarded the HRA 1998, it was expressly because the events took place before it came into force that they could not avail themselves of that legislation. It was difficult for them to understand why recognising a duty of care in relation to events before 2 October 2000 would have had such unacceptable consequences for child protection since it was available afterwards. They maintained their view that in tort public policy concerns have meant that a wide de facto immunity from suit was allowed to public bodies. At the time the tort of negligence was the only remedy in national law capable of determining the substance of their Convention complaints but the House of Lords chose not to recognise that they fell within its ambit. 43. The Government accepted that there was an arguable claim and notwithstanding the variety of remedies available (local authority social service and NHS complaints procedures, the local authority and NHS ombudsmen, judicial review of the relevant authorities and appeals against any court orders) they acknowledged that they were arguably obliged under Article 13 to ensure an enforceable right to compensation was available for such damage as could have been proved to have resulted from any violation of Article 8. They submitted that as from 2 October 2000 such a remedy was provided by the HRA 1998 (sections 7 and 8) although this did not apply to the acts in issue in these proceedings. They pointed out though that there was no prior obligation to incorporate the Convention in domestic law or to incorporate it with retrospective effect as the applicants appeared to contend. They also refuted assertions concerning alleged exclusionary rules applied to protect public authorities from suit. B. The Court ’ s assessment 44. The effect of Article 13 is to require the provision of a remedy at national level allowing the competent domestic authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their obligations under this provision. However, such a remedy is only required in respect of grievances which can be regarded as arguable in terms of the Convention (see Halford v. the United Kingdom, judgment of 25 June 1997, Reports of Judgments and Decisions 1997-III, p. 1020, § 64; and Camenzind v. Switzerland, judgment of 16 December 1997, Reports 1997-VIII, pp. 2896 ‑ 97, § 53 ). 45. It is common ground in this case that the applicants ’ complaints about the interference with their family life through the care measures were arguable. The Court considers that the applicants should have had available to them a means of claiming that the local authority ’ s handling of the procedures was responsible for any damage which they suffered and obtaining compensation for that damage ( T.P. and K.M ., cited above, §§ 108 -109 ). Such redress was not available at the relevant time. Consequently, there has been a violation of Article 13 of the Convention in this regard. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 46. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 47. The applicants claimed 15,000 pounds sterling (GBP) each for non-pecuniary damages as regarded their complaints under Article 8 to reflect the separation of nine months from the child, the public suspicion and criticism suffered by AK, the mental distress at the continuing fear of separation from their child, the concern that their innocence has never publicly been vindicated and that details of the unfounded allegations may remain in local authority files. They also claimed GBP 4,214 each for the violation of Article 13 referring to the lack of any effective remedy for their concerns which required them to spend three and a half years in domestic proceedings and then to bring their case here. 48. The Government claimed that these claims were excessive pointing out that only GBP 10,000 was awarded in TP and KM v. the United Kingdom ( cited above ), where there had been separation of a year, whereas there had been a shorter period of separation and the child in the present case had in fact been placed in the care of an aunt who lived nearby. An award of GBP 10,000 jointly to the applicants was sufficient for any violation of Article 8 and no further award necessary for any breach of Article 13. 49. The Court recalls that it has only found a violation under Article 13 of the Convention. Not doubting that the applicants did in that regard suffer frustration, stress and uncertainty which would not be redressed by a finding of a violation alone, and having regard to awards in similar cases, the Court, making its assessment on an equitable basis, awards the applicants 1 0 ,000 EUR jointly. B. Costs and expenses 50. The applicants claimed legal costs and expenses as regarded their representation by counsel and solicitor in the amount of GBP 32,803.43, which sum took into account the award of legal aid from the Council of Europe and included value-added tax. They also claimed GBP 11,230 for advice and work done by the AIRE Centre. 51. The Government considered that the number of hours claimed (130 by the solicitors and 117 by AIRE Centre) were clearly excessive and contained an significant element of duplication. They considered an award of some GBP 10,000, inclusive of VAT should be awarded. 52. The Court recalls that the procedure was in writing, that no further submissions on the merits were put in after admissibility and that the applicants were only successful on one complaint. It also concurs with the Government that considerable duplication is disclosed by the claims put in for work by solicitor, counsel and experts from the AIRE Centre. Having regard also to the finding of only one violation, it awards EUR 18 ,000 for legal costs plus any tax that may be payable by the applicants. C. Default interest 53. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been no violation of Article 8 (right to respect for private and family life) of the Convention, finding that the domestic authorities had had relevant and sufficient reasons to take protective measures which in the circumstances had been proportionate to the aim of protecting the child. The Court further held that there had been a violation of Article 13 (right to an effective remedy) of the Convention, considering that the applicants should have had available to them a means to claim that the local authority’s handling of procedures had been responsible for any damage they had suffered and to claim compensation, a redress that had not been available at the relevant time. |
1,037 | Allegedly excessive length of proceedings | II. RELEVANT DOMESTIC LAW 27. Under Article 173 et seq. of the Code of Civil Procedure the court may stay civil proceedings either ex officio or at a party’s request. Article 177 § 1 (1) provides: “1. The court shall ex officio stay the proceedings: (1) if the determination of the case depends on the outcome of other pending civil proceedings;” THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 28. The applicant complained that the length of the proceedings in her case had exceeded a reasonable time within the meaning of Article 6 § 1 of the Convention. That provision, in its relevant part, reads: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” 29. The Government contested this. A. Period to be taken into consideration 30. The proceedings began on 5 November 1992, when the applicant brought her action to the Warsaw Regional Court (see paragraph 14 above) but the period to be taken into consideration started on 1 May 1993, the date on which the declaration whereby Poland recognised the right of individual petition for the purposes of former Article 25 of the Convention took effect. The proceedings were terminated on 23 October 2002 (see paragraph 26 above). Their length accordingly amounts to nearly 10 years, of which 9 years, 5 months and 22 days fall within the Court’s jurisdiction ratione temporis. B. Reasonableness of the length of the proceedings 31. The reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case and having regard to the criteria laid down in the Court’s case-law, in particular the complexity of the case, the conduct of the applicant and of the relevant authorities, and the importance of what was at stake for the applicant in the litigation (see, for instance, Humen v. Poland [GC], no. 26614/95, § 60, 15 October 1999; and Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). 1. Complexity of the case 32. The applicant submitted that the case had been complex to some extent. 33. The Government, for their part, maintained that no complicated issues had not been involved in the determination of her claim. 34. The Court, noting that the object of the proceedings was the annulment of an ordinary contract for sale of property and that the determination of the claim did not involve the need to obtain any extensive evidence, considers that the case was not particularly complex. 2. Conduct of the applicant (a) The parties’ arguments 35. The applicant maintained that she had not contributed to the length of the proceedings and stressed that, despite her very old age and the fact that her every appearance before the Regional Court had involved a long and tiring travel, she had attended hearings and given evidence whenever necessary. She had not asked for any unjustified postponement and had never caused any undue delay. 36. The Government argued that the applicant had significantly contributed to the length of the proceedings. They submitted that the applicant, when bringing her claim, had to be aware that its determination depended on the outcome of the earlier proceedings concerning the annulment of the notarial deed of 4 December 1989. Accordingly, the Regional Court could not be held responsible for the initial period of more that 4 years, during which the proceedings had been stayed. 37. The Government further pointed out that the applicant’s lawyer had asked the court not to fix any hearings between 3 and 12 August 1998 and between 7 and 19 September 1998 and contended that the resultant inactivity should be attributed to the applicant. On the other hand, they acknowledged that the defendants’ conduct had also caused delays in the proceedings. (b) The Court’s assessment 38. The Court is not persuaded by the Government’s contention that the applicant caused significant delays in the proceedings. In that context, it notes that the stay of the proceedings did not, as the Government seem to have suggested, result from the dilatory conduct on her part. It originated in the Regional Court ’s decision and, however rational that decision might be, the ensuing delay cannot be attributed to the applicant. The same holds true in respect of the alleged hold-up caused by the fact that – on one occasion only – the applicant’s lawyer asked the court not to set hearing dates during her holiday leave (see paragraph 22 above). Indeed, it does not appear that a one-month gap could have materially prolonged a trial that as a whole lasted nearly 10 years. 3. Conduct of the judicial authorities and what was at stake for the applicant (a) The parties’ arguments 39. The applicant stated that the courts had failed to handle her case with due diligence. In this regard, she referred to the fact that many hearings had been cancelled or adjourned and that there had been long intervals between the hearings. Referring to what was at stake for her in the litigation, the applicant stressed that it had not only concerned her property rights but that it had also involved important emotional and personal matters relating to her determined, albeit futile, efforts to regain her family house that had been unjustifiably taken over by the communist authorities. Also, given her great age and bad health, as well as the considerable inconvenience of travelling at her age from her home in Senec, Slovakia to Warsaw to attend the hearings, the excessive length of the proceedings had put a severe emotional and physical strain on her. 40. The Government considered that the relevant courts had displayed due diligence in handling the applicant’s case. The first-instance proceedings, after having been resumed on 30 September 1997, had been terminated within less than 4 years. It was true that the trial had been postponed several times because of the defendants’ absence. Yet the Regional Court had made efforts to secure their presence before it. For instance, it had on one occasion ordered them to provide a justification for the absence. Furthermore, only delays attributable to the authorities might justify a finding that they were in breach of the “reasonable time” requirement. Since in the present case the parties’ conduct was the main reason for the procrastination of the proceedings, the Polish State could not be held responsible for their length. (b) The Court’s assessment 41. The Court observes that even though the proceedings were stayed for about 4 years and 4 months (see paragraphs 18 and 19 above), this cannot justify the overall length of the time the relevant authorities needed to hear the case which was merely of average complexity. 42. While the respondent State cannot be held responsible for all delays in the proceedings, as, indeed, some hearings were adjourned due to the absence of the applicant’s opponents, the Court finds no satisfactory explanation for the delay of about 1 year that occurred between 2 June 1998 and 23 June 1999 (see paragraphs 19-22 above). Nor does it see any reason why the appellate proceedings lasted 1 year and why the Supreme Court needed yet another year to hear the applicant’s cassation appeal (see paragraphs 24-26). Furthermore, in assessing the conduct of the relevant courts, the Court takes due account of the fact that already on 15 June 2000 the domestic authorities expressly acknowledged that the proceedings had indeed been lengthy and that all the steps taken to accelerate the trial had been to no avail (see paragraph 23 above). 43. Having regard to all the relevant circumstances and, more particularly, to the fact that in view of the applicant’s old age – she was already 71 years old when the litigation started – the Polish courts should have displayed particular diligence in handling her case, the Court concludes that the “reasonable time” requirement was not satisfied. There has therefore been a violation of Article 6 § 1 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 44. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 45. The applicant did not claim any pecuniary damage. However, under the head of non-pecuniary damage, she sought an award of 100,000 Polish zlotys (PLN) to compensate for moral damage suffered as a result of the protracted length of the proceedings. 46. The Government considered that the amount claimed was excessive. 47. The Court accepts that the applicant suffered non-pecuniary damage, such as distress and frustration, resulting from the undue prolongation of the proceedings that she brought to the Polish courts. Making its assessment on equitable basis, the Court awards the applicant EUR 6,000 under this head. B. Costs and expenses 48. The applicant also claimed PLN 67,350 by way of legal costs and expenses incurred in the domestic court proceedings. In particular, she submitted details of travel expenses. 49. The Government submitted that the amount claimed was excessive. 50. The Court reiterates that to be entitled to an award of costs and expenses under Article 41, the injured party must have incurred them in order to seek, through the domestic legal order, prevention or redress of a violation, to have the same established by the Court or to obtain reparation therefore (see the Zimmermann and Steiner v. Switzerland judgment of 13 July 1983, Series A no. 66, p. 14, § 36). However, it considers that the applicant has not shown that the legal costs and expenses claimed by her were incurred in order to prompt domestic courts to comply with the requirements of Article 6 § 1 (see the Zimmermann and Steiner v. Switzerland cited above, pp. 14-15, § 37). The claim should accordingly be dismissed. C. Default interest 51. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 6 § 1 (right to fair trial) of the Convention in respect of the length of proceedings, having regard more particularly to the fact that in view of the applicant’s old age – she was already 71 years old when the litigation started – the Polish courts should have displayed particular diligence in handling her case. |
190 | Prohibition of discrimination (Article 14 of the Convention) | II. RELEVANT LAW AND PRACTICE A. Domestic law and practice 70. The relevant domestic law provisions relied on by the judicial authorities in the instant case are set out below. 1. The Criminal Code Article 188 “ Whoever by use of force or threats compels another person to do or not to do something or to obtain the latter ’ s permission to do something ... will be sentenced to between six months ’ and one year ’ s imprisonment, and a major fine of between one thousand and three thousand liras ...” Article 191 § 1 “Whoever, apart from the situations set out in law, threatens another person with severe and unjust damage will be sentenced to six months ’ imprisonment.” Article 449 “If the act of homicide is: ( a ) committed against a wife, husband, sister or brother, adoptive mother, adopted child, stepmother, stepfather, stepchild, father-in-law, mother-in-law, son-in-law, or daughter -in-law ... the offender will be sentenced to life imprisonment ...” Article 456 § § 1, 2 and 4 “ Whoever torments another person physically or damages his or her welfare or causes cerebral damage, without intending murder, will be sentenced to between six months ’ and one year ’ s imprisonment. Where the act constitutes a danger to the victim ’ s life or causes constant weakness in one of the organs or senses, or permanent difficulty in speech or permanent injuries to the face, or physical or mental illness for twenty or more days, or prevents [the victim] from continuing his regular work for the same number of days, the offender will be sentenced to between two and five years ’ imprisonment. ... If the act did not cause any illness or did not prevent [the victim] from continuing his regular work or these situations did not last for more than ten days, the offender will be sentenced to between two and six months ’ imprisonment or to a heavy fine of twelve thousand to one hundred and fifty thousand liras, provided that the injured person complains ...” Article 457 “If the acts mentioned in Article 456 are committed against the persons cited in Article 449 or if the act is committed by a hidden or visible weapon or harmful chemical, the punishment shall be increased by one - third to a half of the main sentence.” Article 460 “In situations mentioned under Articles 456 and 459, where commencement of the prosecution depends on the lodging of a complaint [by the victim], if the complainant waives his/her claims before the pronouncement of the final judgment the public prosecution shall be terminated.” 2. The Family Protection Act (Law no. 4320 of 14 January 1998) Section 1 “If a spouse or a child or another family member living under the same roof is subjected to domestic violence and if the magistrate ’ s court dealing with civil matters is notified of the fact by that person or by the Chief Public Prosecutor ’ s Office, the judge, taking account of the nature of the incident, may on his or her own initiative order one or more of the following measures or other similar measures as he or she deems appropriate. The offending spouse may be ordered: (a) not to engage in violent or threatening behaviour against the other spouse or the children (or other family members living under the same roof); (b) to leave the shared home and relinquish it to the other spouse and the children, if any, and not to approach the home in which the other spouse and the children are living, or their workplaces; (c) not to damage the property of the other spouse (or of the children or other family members living under the same roof); (d) not to disturb the other spouse or the children (or other family members living under the same roof) through the use of communication devices; (e) to surrender any weapons or similar instruments to law-enforcement officials; (f) not to arrive at the shared home when under the influence of alcohol or other intoxicating substances, or not to use such substances in the shared home. The above ‑ mentioned measures shall be applied for a period not exceeding six months. In the order, the offending spouse shall be warned that in the event of failure to comply with the measures imposed, he or she will be arrested and sentenced to a term of imprisonment. The judge may order interim maintenance payments, taking account of the victim ’ s standard of living. Applications made under section 1 shall not be subject to court fees. ” Section 2 “ The court shall transmit a copy of the protection order to the Chief Public Prosecutor ’ s Office. The Chief Public Prosecutor ’ s Office shall monitor implementation of the order by means of the law-enforcement agencies. In the event of failure to comply with the protection order, the law-enforcement agency shall conduct an investigation on its own initiative, without the victim being required to lodge a complaint, and shall transmit the documents to the Chief Public Prosecutor ’ s Office without delay. The Chief Public Prosecutor ’ s Office shall bring a public prosecution in the magistrate ’ s court against a spouse who fails to comply with a protection order. The location and expeditious holding of the hearing in the case shall be subject to the provisions of Law no. 3005 on the procedure governing in flagrante delicto cases. Even if the act in question constitutes a separate offence, a spouse who fails to comply with a protection order shall also be sentenced to three to six months ’ imprisonment. ” 3. Implementing regulations for the Family Protection Act, dated 1 March 2008 71. These regulations, which were drawn up to govern the implementation of Law no. 4320, set out the measures to be taken in respect of the family members perpetrating violence and the procedures and principles governing the application of those measures, in order to protect family members subjected to domestic violence. B. Relevant international and comparative - law materials 1. The United Nations ’ position with regard to domestic violence and discrimination against women 72. The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) was adopted in 1979 by the United Nations General Assembly and ratified by Turkey on 19 January 1986. 73. The CEDAW defines discrimination against women as “ ... any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.” As regards the States ’ obligations, Article 2 of the CEDAW provides, in so far as relevant, the following: “States Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women and, to this end, undertake: ... (e) to take all appropriate measures to eliminate discrimination against women by any person, organisation or enterprise; (f) to take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women; ... ” 74. The Committee on the Elimination of All Forms of Discrimination Against Women (hereinafter “the CEDAW Committee”) has found that “gender-based violence is a form of discrimination that seriously inhibits women ’ s ability to enjoy rights and freedoms on a basis of equality with men” and is thus prohibited under Article 1 of the CEDAW. Within the general category of gender-based violence, the CEDAW Committee includes violence by “private act” [2] and “family violence” [3]. Consequently, gender-based violence triggers duties in States. General Recommendation No. 19 sets out a catalogue of such duties. They include a duty on States to “take all legal and other measures that are necessary to provide effective protection of women against gender-based violence ” [4], “ including penal sanctions, civil remedies and compensatory provisions to protect women against all kinds of violence” [5]. In its Concluding Comments on the combined fourth and fifth periodic report of Turkey (hereinafter “ the Concluding Comments”), the CEDAW Committee reiterated that violence against women, including domestic violence, is a form of discrimination (see UN doc. CEDAW/C/TUR/4-5 and Corr.1, 15 February 2005, § 28). 75. Furthermore, in its explanations of General Recommendation No. 19, the CEDAW Committee considered the following: “... 6. The Convention in Article 1 defines discrimination against women. The definition of discrimination includes gender-based violence, that is, violence that is directed against a woman because she is a woman or that affects women disproportionately. It includes acts that inflict physical, mental or sexual harm or suffering, threats of such acts, coercion and other deprivations of liberty. Gender-based violence may breach specific provisions of the Convention, regardless of whether those provisions expressly mention violence. 7. Gender-based violence, which impairs or nullifies the enjoyment by women of human rights and fundamental freedoms under general international law or under human rights conventions, is discrimination within the meaning of Article 1 of the Convention. Comments on specific Articles of the Convention ... Articles 2 (f), 5 and 10 (c) 11. Traditional attitudes by which women are regarded as subordinate to men or as having stereotyped roles perpetuate widespread practices involving violence or coercion, such as family violence and abuse, forced marriage, dowry deaths, acid attacks and female circumcision. Such prejudices and practices may justify gender-based violence as a form of protection or control of women. The effect of such violence on the physical and mental integrity of women is to deprive them the equal enjoyment, exercise and knowledge of human rights and fundamental freedoms. While this comment addresses mainly actual or threatened violence the underlying consequences of these forms of gender-based violence help to maintain women in subordinate roles and contribute to the low level of political participation and to their lower level of education, skills and work opportunities.” 76. In the case of A.T. v. Hungary (decision of 26 January 2005), where the applicant had alleged that her common-law husband and father of her two children had been physically abusing and threatening her from 1998 onwards, the CEDAW Committee directed Hungary to take measures “to guarantee the physical and mental integrity of the applicant and her family”, as well as to ensure that she was provided with a safe place of residence to live with her children, and that she received child support, legal assistance and compensation in proportion to the harm sustained and the violation of her rights. The Committee also made several general recommendations to Hungary on improving the protection of women against domestic violence, such as establishing effective investigative, legal and judicial processes, and increasing treatment and support resources. 77. In the case of Fatma Yıldırım v. Austria (decision of 1 October 2007), which concerned the killing of Mrs Yıldırım by her husband, the CEDAW Committee found that the State Party had breached its due diligence obligation to protect Fatma Yıldırım. It therefore concluded that the State Party had violated its obligations under Article 2 (a) and (c) to (f), and Article 3 of the CEDAW read in conjunction with Article 1 of the CEDAW and General Recommendation No. 19 of the CEDAW Committee and the corresponding rights of the deceased Fatma Yıldırım to life and to physical and mental integrity. 78. The United Nations General Assembly Declaration on the Elimination of Violence against Women (1993), in its Article 4 (c), urges States to “exercise due diligence to prevent, investigate and, in accordance with national legislation, punish acts of violence against women, whether those acts are perpetrated by the State or private persons”. 79. In his third report, of 20 January 2006, to the Commission on Human Rights of the United Nations Economic and Social Council (E/CN.4/2006/61), the special rapporteur on violence against women considered that there is a rule of customary international law that “obliges States to prevent and respond to acts of violence against women with due diligence”. 2. The Council of Europe 80. In its Recommendation Rec(2002)5 of 30 April 2002 on the protection of women against violence, the Committee of Ministers of the Council of Europe stated, inter alia, that member States should introduce, develop and/or improve where necessary national policies against violence based on maximum safety and protection of victims, support and assistance, adjustment of the criminal and civil law, raising of public awareness, training for professionals confronted with violence against women, and prevention. 81. The Committee of Ministers recommended, in particular, that member States should penalise serious violence against women such as sexual violence and rape, abuse of the vulnerability of pregnant, defenceless, ill, disabled or dependent victims, as well as penalising abuse of position by the perpetrator. The Recommendation also stated that member States should ensure that all victims of violence are able to institute proceedings, make provisions to ensure that criminal proceedings can be initiated by the public prosecutor, encourage prosecutors to regard violence against women as an aggravating or decisive factor in deciding whether or not to prosecute in the public interest, ensure where necessary that measures are taken to protect victims effectively against threats and possible acts of revenge and take specific measures to ensure that children ’ s rights are protected during proceedings. 82. With regard to violence within the family, the Committee of Ministers recommended that member States should classify all forms of violence within the family as criminal offences and envisage the possibility of taking measures in order, inter alia, to enable the judiciary to adopt interim measures aimed at protecting victims, to ban the perpetrator from contacting, communicating with or approaching the victim, or residing in or entering defined areas, to penalise all breaches of the measures imposed on the perpetrator and to establish a compulsory protocol for operation by the police, medical and social services. 3. The Inter-American System 83. In Velazquez-Rodriguez v. Honduras, the Inter-American Court of Human Rights stated: “An illegal act which violates human rights and which is initially not directly imputable to a State (for example, because it is the act of a private person or because the person responsible has not been identified) can lead to international responsibility of the State, not because of an act itself, but because of the lack of due diligence to prevent the violation or to respond to it as required by the Convention.” [6] 84. The legal basis for the ultimate attribution of responsibility to a State for private acts relies on State failure to comply with the duty to ensure human rights protection, as set out in Article 1 § 1 of the American Convention on Human Rights [7]. The Inter-American Court ’ s case-law reflects this principle by repeatedly holding States internationally responsible on account of their lack of due diligence to prevent human rights violations, to investigate and sanction perpetrators or to provide appropriate reparations to their families. 85. The Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women 1994 ( the Belém do Pará Convention) [8] sets out States ’ duties relating to the eradication of gender - based violence. It is the only multilateral human rights treaty to deal solely with violence against women. 86. The Inter-American Commission adopts the Inter-American Court of Human Right ’ s approach to the attribution of State responsibility for the acts and omissions of private individuals. In the case of Maria Da Penha v. Brazil [9], the Commission found that the State ’ s failure to exercise due diligence to prevent and investigate a domestic violence complaint warranted a finding of State responsibility under the American Convention on Human Rights and the Belém do Pará Convention. Furthermore, Brazil had violated the rights of the applicant and failed to carry out its duty ( inter alia, under Article 7 of the Belém do Pará Convention, obliging States to condemn all forms of violence against women), as a result of its failure to act and its tolerance of the violence inflicted. Specifically, the Commission held that: “... tolerance by the State organs is not limited to this case; rather, it is a pattern. The condoning of this situation by the entire system only serves to perpetuate the psychological, social, and historical roots and factors that sustain and encourage violence against women. Given the fact that the violence suffered by Maria da Penha is part of a general pattern of negligence and lack of effective action by the State in prosecuting and convicting aggressors, it is the view of the Commission that this case involves not only failure to fulfil the obligation with respect to prosecute and convict, but also the obligation to prevent these degrading practices. That general and discriminatory judicial ineffectiveness also creates a climate that is conducive to domestic violence, since society sees no evidence of willingness by the State, as the representative of the society, to take effective action to sanction such acts.” [10] 4. Comparative- law materials 87. In eleven member States of the Council of Europe, namely in Albania, Austria, Bosnia and Herzegovina, Estonia, Greece, Italy, Poland, Portugal, San Marino, Spain and Switzerland, the authorities are required to continue criminal proceedings despite the victim ’ s withdrawal of complaint in cases of domestic violence. 88. In twenty - seven member States, namely in Andorra, Armenia, Azerbaijan, Belgium, Bulgaria, Cyprus, the Czech Republic, Denmark, England and Wales, Finland, “ the former Yugoslav Republic of Macedonia ”, France, Georgia, Germany, Hungary, Ireland, Latvia, Luxembourg, Malta, Moldova, the Netherlands, the Russian Federation, Serbia, Slovakia, Sweden, Turkey and Ukraine, the authorities have a margin of discretion in deciding whether to pursue criminal proceedings against perpetrators of domestic violence. A significant number of legal systems make a distinction between crimes which are privately prosecutable (and for which the victim ’ s complaint is a prerequisite) and those which are publicly prosecutable (usually more serious offences for which prosecution is considered to be in the public interest). 89. It appears from the legislation and practice of the above-mentioned twenty - seven countries that the decision on whether to proceed where the victim withdraws his/her complaint lies within the discretion of the prosecuting authorities, which primarily take into account the public interest in continuing criminal proceedings. In some jurisdictions, such as England and Wales, in deciding whether to pursue criminal proceedings against the perpetrators of domestic violence the prosecuting authorities (Crown Prosecution Service) are required to consider certain factors, including: the seriousness of the offence; whether the victim ’ s injuries are physical or psychological; if the defendant used a weapon; if the defendant has made any threats since the attack; if the defendant planned the attack; the effect (including psychological) on any children living in the household; the chances of the defendant offending again; the continuing threat to the health and safety of the victim or anyone else who was, or could become, involved; the current state of the victim ’ s relationship with the defendant; the effect on that relationship of continuing with the prosecution against the victim ’ s wishes; the history of the relationship, particularly if there was any other violence in the past; and the defendant ’ s criminal history, particularly any previous violence. Direct reference is made to the need to strike a balance between the victim ’ s and any children ’ s Article 2 and Article 8 rights in deciding on a course of action. 90. Romania seems to be the only State which bases the continuance of criminal proceedings entirely, and in all circumstances, on the wishes/complaints of the victim. C. Reports concerning domestic violence and the situation of women in Turkey 1. The opinion of the Purple Roof Women ’ s Shelter Foundation (Mor Çatı Kadın Sığınağı Vakfı – “the Mor Çatı Foundation ” ) on the implementation of Law no. 4320, dated 7 July 2007 91. According to this report, Law no. 4320 (see paragraph 70 above) is not yet being fully implemented. In recent years there has been an increase in “protection orders” or injunctions issued by family courts. However, some courts, in response to applications made to them by women in mortal danger, are still setting hearings two or even three months ahead. Under these circumstances, judges and prosecutors treat an action under Law no. 4320 as if it were a form of divorce action, whereas the point of the Law is to take urgent action on behalf of women who are seeking to protect their own lives. Once the injunction has been issued, women are confronted with a number of problems with its implementation. 92. In the two years before the report was released approximately 900 women applied to the Mor Çatı Foundation and made great efforts to use Law no. 4320, but of this number only 120 succeeded. The Mor Çatı Foundation has identified serious problems with the implementation of Law no. 4320. In particular, it was observed that domestic violence is still treated with tolerance at police stations, and that some police officers try to act as arbitrators, or take the side of the male, or suggest that the woman drop her complaint. There are also serious problems in serving the injunction issued by a court under Law no. 4320 on the husband. In the case of a number of women wishing to work with the Mor Çatı Foundation, injunctions were not implemented because their husbands were police officers or had friendly relations with officers at the police station in question. 93. Furthermore, there are unreasonable delays in issuing injunctions by the courts. This results from the attitude of the courts in treating domestic violence complaints as a form of divorce action. It is considered that behind such delays lies a suspicion that women might be making such applications when they have not suffered violence. The allegations that women abuse Law no. 4320 are not correct. Since the economic burden of the home lies almost 100% with men, it would be impossible for women to request implementation of Law no. 4320 unless they were confronted with mortal danger. Finally, the injunctions at issue are generally narrow in scope or are not extended by the courts. 2. Research report prepared by the Women ’ s Rights Information and Implementation Centre of the Diyarbakır Bar Association (KA ‑ MER) on the Implementation of Law no. 4320, dated 25 November 2005 94. According to this report, a culture of violence has developed in Turkey and violence is tolerated in many areas of life. A survey of legal actions at a magistrate ’ s court dealing with civil matters ( sulh hukuk mahkemesi ) and three civil courts ( asliye hukuk mahkemesi ) in Diyarbakır identified 183 actions brought under Law no. 4320 from the date on which the Law entered into force in 1998 until September 2005. In 104 of these cases, the court ordered various measures, while in the remaining 79 actions the court held that there were no grounds for making an order, or dismissed the action, or ruled that it lacked jurisdiction. 95. Despite the importance of the problem of domestic violence, very few applications have been made under the said Law, because either the public is not generally aware of it or the level of confidence in the security forces is very low in the region. The most important problems were caused by the delay in issuing injunctions and the authorities ’ failure to monitor the implementation of injunctions. 96. Moreover, the negative attitude of police officers at police stations towards victims of domestic violence is one of the obstacles preventing women from using this Law. Women who go to police stations because they are subjected to domestic violence are confronted with attitudes which tend to regard the problem as a private family matter into which the police are reluctant to interfere. 97. This report makes recommendations to improve the implementation of Law no. 4320 and to enhance the protection of victims of domestic violence. 3. Diyarbakır KA-MER Emergency Helpline statistics for the period 1 August 1997 to 30 June 2007 98. This statistical information report was prepared following interviews conducted with 2,484 women. It appears that all of the complainants were subjected to psychological violence and approximately 60% were subjected to physical violence. The highest number of victims is in the 20-30 age group (43%). 57% of these women are married. The majority of victims are illiterate or of a low level of education. 78% of the women are of Kurdish origin. 91% of the victims who called the emergency helpline are from Diyarbakır. 85% of the victims have no independent source of income. 4. Amnesty International ’ s 2004 report entitled “Turkey: women confronting family violence” 99. According to this report, statistical information about the extent of violence against women in Turkey is limited and unreliable. Nonetheless, it appears that a culture of domestic violence has placed women in double jeopardy, both as victims of violence and because they are denied effective access to justice. Women from vulnerable groups, such as those from low-income families or who are fleeing conflict or natural disasters, are particularly at risk. In this connection, it was found that crimes against women in south - east Turkey have gone largely unpunished. 100. It was noted that women ’ s rights defenders struggle to combat community attitudes, which are tolerant of violence against women and are frequently shared by judges, senior government officials and opinion leaders in society. Even after legislative reforms have removed the legal authorisation for discriminatory treatment, attitudes that pressure women to conform to certain codes of behaviour restrict women ’ s life choices. 101. The report states that at every level of the criminal justice system the authorities fail to respond promptly or rigorously to women ’ s complaints of rape, sexual assault or other violence within the family. The police are reluctant to prevent and investigate family violence, including the violent deaths of women. Prosecutors refuse to open investigations into cases involving domestic violence or to order protective measures for women at risk from their family or community. The police and courts do not ensure that men, who are served with court orders, including protection orders, comply with them. They accord them undue leniency in sentencing, on the grounds of “provocation” by their victim and on the flimsiest of evidence. 102. There are many barriers facing women who need access to justice and protection from violence. Police officers often believe that their duty is to encourage women to return home and “make peace” and fail to investigate the women ’ s complaints. Many women, particularly in rural areas, are unable to make formal complaints, because leaving their neighbourhoods subjects them to intense scrutiny, criticism and, in some cases, violence. 103. Furthermore, although some courts appear to have begun implementing the reforms, the discretion accorded to the courts continues to accord the perpetrators of domestic violence unwarranted leniency. Sentences in such cases are still frequently reduced at the discretion of the judges, who continue to take into account the “severe provocation” of the offence to custom, tradition or honour. 104. Finally, this report makes a number of recommendations to the Turkish government and to community and religious authorities with a view to addressing the problem of domestic violence. 5. Report on Honour Crimes, prepared by the Diyarbakır Bar Association ’ s Justice For All Project and the Women ’ s Rights Information and Implementation Centre 105. This report was prepared in order to look into the judicial dimensions of the phenomenon of so-called “honour crimes”. A survey was carried out of judgments in cases before the Diyarbakır assize courts and children ’ s courts. The purpose of the survey was to identify the proportion of such unlawful killings referred to the courts, the judiciary ’ s attitude to them, the defendants ’ lines of defence in these cases, the role of social structure ( that is, family councils and custom) and the reasons for the murders. To that end, cases in the Diyarbakır assize courts and children ’ s courts between 1999 and 2005 were examined. In these seven years, 59 cases were identified in which a judgment was given. In these cases, there were 71 victims/persons killed, and 81 people were tried as defendants. 106. According to the researchers, in cases where the victim/person killed was male, it was observed that defendants claimed, in their defence, that the victim/person killed had raped, sexually assaulted, or abducted a relative of the defendant, or had attempted to draw a relative of the defendant into prostitution. In cases where the victim/person killed was a woman, defendants alleged, in their defence, that the victim/person killed had been talking to other men, had taken up prostitution, or had committed adultery. In 46 of the judgments, mitigating provisions concerning unjustified provocation were applied. In cases of 61 convictions, the provisions of Article 59 of the Turkish Criminal Code concerning discretionary mitigation were applied. THE LAW I. ADMISSIBILITY 107. The Government contested the admissibility of the application on two grounds. A. Failure to observe the six-month rule under Article 35 § 1 of the Convention 108. The Government submitted that the applicant had failed to observe the six-month time-limit in respect of the events which had taken place before 2001. They argued that the events which had taken place between 1995 and 2001 should be considered as out of time. If the applicant was not satisfied with the decisions given by the domestic authorities subsequent to the events which had taken place during the above- mentioned period, she should have submitted her application to the Commission or, following the entry into force of Protocol No. 11, to the Court within six months of each decision. 109. The applicant claimed that she had lodged her application within six months of the impugned events. In her opinion the events should be taken as a whole and should not be examined separately. 110. The Court reiterates that the purpose of the six-month rule under Article 35 § 1 of the Convention is to promote security of law and to ensure that cases raising issues under the Convention are dealt with within a reasonable time (see Kenar v. Turkey (dec.), no. 67215/01, 1 December 2005). According to its well-established case-law, where no domestic remedy is available the six-month period runs from the date of the act complained of. 111. In that regard, the Court notes that from 10 April 1995 the applicant and her mother had been victims of multiple assaults and threats by H.O. against their physical integrity. These acts of violence had resulted in the death of the applicant ’ s mother and caused the applicant intense suffering and anguish. While there were intervals between the impugned events, the Court considers that the overall violence to which the applicant and her mother were subjected over a long period of time cannot be seen as individual and separate episodes and must therefore be considered together as a chain of connected events. 112. This being so, the Court notes that the applicant has submitted her application within six months of the killing of her mother by H.O., which event may be considered as the time that she became aware of the ineffectiveness of the remedies in domestic law, as a result of the authorities ’ failure to stop H.O. committing further violence. Given that these circumstances do not disclose any indication of a delay on the part of the applicant in introducing her application once it became apparent that no redress for her complaints was forthcoming, the Court considers that the relevant date for the purposes of the six-month time-limit should not be considered to be a date earlier than at least 13 March 2002 (see paragraph 54 above). In any event, the applicant ’ s former husband had continued to issue threats against her life and well-being and, therefore, it cannot be said that the said pattern of violence has come to an end (see paragraphs 59-69 above). 113. In the specific context of this case, it follows that the applicant ’ s complaints have been introduced within the six-month time-limit required by Article 35 § 1 of the Convention. The Court therefore dismisses the Government ’ s preliminary objection in this regard. B. Failure to exhaust domestic remedies 114. The Government further contended that the applicant had failed to exhaust domestic remedies since she and her mother had withdrawn their complaints many times and had caused the termination of the criminal proceedings against the applicant. They maintained that the applicant had also not availed herself of the protection afforded by Law no. 4320 and that she had prevented the public prosecutor from applying to the family court, in that she had withdrawn her complaints. They submitted further that the applicant could have availed herself of the administrative and civil law remedies whose effectiveness had been recognised by the Court in previous cases (citing Aytekin v. Turkey, 23 September 1998, Reports of Judgments and Decisions 1998-VII). Finally, relying on the Court ’ s judgments in Ahmet Sadık v. Greece (15 November 1996, § 34, Reports 1996-V) and Cardot v. France (19 March 1991, § 30, Series A no. 200), the Government claimed that the applicant had failed to raise, even in substance, her complaints of discrimination before the national authorities and that, therefore, these complaints should be declared inadmissible. 115. The applicant claimed that she had exhausted all available remedies in domestic law. She argued that the domestic remedies had proven to be ineffective given the failure of the authorities to protect her mother ’ s life and to prevent her husband from inflicting ill-treatment on her and her mother. As regards the Government ’ s reliance on Law no. 4320, to the effect that she had not availed herself of the remedies therein, the applicant noted that the said law had come into force on 14 January 1998, whereas a significant part of the events at issue had taken place prior to that date. Prior to the entry into force of Law no. 4320, there was no mechanism for protection against domestic violence. In any event, despite her numerous criminal complaints to the Chief Public Prosecutor ’ s Office, none of the protective measures provided for in Law no. 4320 had been taken to protect the life and well-being of the applicant and her mother. 116. The Court observes that the main question with regard to the question of exhaustion of domestic remedies is whether the applicants have failed to make use of available remedies in domestic law, particularly those provided by Law no. 4320, and whether the domestic authorities were required to pursue the criminal proceedings against the applicant ’ s husband despite the withdrawal of complaints by the victims. These questions are inextricably linked to the question of the effectiveness of the domestic remedies in providing sufficient safeguards for the applicant and her mother against domestic violence. Accordingly, the Court joins these questions to the merits and will examine them under Articles 2, 3 and 14 of the Convention (see, among other authorities, Şemsi Önen v. Turkey, no. 22876/93, § 77, 14 May 2002). 117. In view of the above, the Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 118. The applicant complained that the authorities had failed to safeguard the right to life of her mother, who had been killed by her husband, in violation of Article 2 § 1 of the Convention, the relevant part of which provides: “Everyone ’ s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law ...” A. The parties ’ submissions 1. The applicant 119. The applicant asserted at the outset that domestic violence was tolerated by the authorities and society and that the perpetrators of domestic violence enjoyed impunity. In this connection, she pointed out that, despite their numerous criminal complaints to the Diyarbakır Chief Public Prosecutor ’ s Office, none of the protective measures provided for in Law no. 4320 had been taken to protect the life and well-being of herself and her mother. Conversely, on a number of occasions, the authorities had tried to persuade the applicant and her mother to abandon their complaints against H.O. The domestic authorities had remained totally passive in the face of death threats issued by H.O. and had left her and her mother to the mercy of their aggressor. 120. The applicant pointed out that, by a petition dated 27 February 2002, her mother had applied to the Chief Public Prosecutor ’ s Office and had informed the authorities of the death threats issued by H.O. However, the public prosecutor had done nothing to protect the life of the deceased. In the applicant ’ s opinion, the fact that the authorities had not taken her mother ’ s complaint seriously was a clear indication that domestic violence was tolerated by society and the national authorities. 121. The applicant also claimed that, although H.O. had been convicted of murder, the punishment imposed on him was not a deterrent and was considerably less than the normal sentence imposed for murder. The imposition of a lenient sentence had resulted from the fact that, in his defence submissions before the Assize Court, the accused had claimed to have killed her mother in order to protect his honour. It was the general practice of the criminal courts in Turkey to mitigate sentences in cases of “honour crimes”. In cases concerning “honour crimes”, the criminal courts imposed a very lenient punishment or no punishment at all on the perpetrators of such crimes. 2. The Government 122. The Government stressed that the local authorities had provided immediate and tangible follow-up to the complaints lodged by the applicant and her mother. In this connection, subsequent to the filing of their complaints, the authorities had registered the complaints, conducted medical examinations, heard witnesses, conducted a survey of the scenes of the incidents and transmitted the complaints to the competent legal authorities. When necessary and depending on the gravity of the incident, the aggressor had been remanded in custody and had been convicted by the criminal courts. These proceedings had been carried out within the shortest time possible. The authorities had displayed diligence and were sensitive to the complaints, and no negligence had been shown. 123. However, by withdrawing their complaints, the applicant and her mother had prevented the authorities from pursuing criminal proceedings against H.O. and had thus contributed to the impunity enjoyed by the aggressor. In this regard, it did not appear from the case file that the applicant and her mother had withdrawn their complaints as a result of any pressure exerted on them either by H.O. or the public prosecutor in charge of the investigation. The pursuit of criminal proceedings against the aggressor was dependent on the complaints lodged or pursued by the applicant, since the criminal acts in question had not resulted in sickness or unfitness for work for ten days or more, within the meaning of Articles 456 § 4, 457 and 460 of the Criminal Code. Furthermore, in most cases the criminal courts had not convicted H.O. because the evidence against him was insufficient. Accordingly, the authorities could not be expected to separate the applicant and her husband and convict the latter while they were living together as a family, as this would amount to a breach of their rights under Article 8 of the Convention. 124. As regards the petition filed by the applicant ’ s mother on 27 February 2002, the Government claimed that the content of this petition was no different to the previous ones and was of a general nature. There was no tangible fact or specific indication that her life was indeed in danger. In the petition the mother had failed to request any protection at all but she had merely requested a speedy examination of her complaint and the punishment of the applicant ’ s husband. Nonetheless, subsequent to the receipt of the petition dated 27 February 2002, the authorities had registered the complaint and had held a hearing on 27 May 2002, which had been followed by other hearings. Finally, following the killing of the applicant ’ s mother by H.O., the latter had been convicted and had received a heavy punishment. 3. Interights, the third-party intervener 125. Referring to international practice, Interights submitted that where the national authorities failed to act with due diligence to prevent violence against women, including violence by private actors, or to investigate, prosecute and punish such violence, the State might be responsible for such acts. The jus cogens nature of the right to freedom from torture and the right to life required exemplary diligence on the part of the State with respect to investigation and prosecution of these acts. 126. In the context of domestic violence, victims were often intimidated or threatened into either not reporting the crime or withdrawing complaints. However, the responsibility to ensure accountability and guard against impunity lay with the State, not with the victim. International practice recognised that a broad range of interested persons, not just the victim, should be able to report and initiate an investigation into domestic violence. Further, international practice increasingly suggested that where there was sufficient evidence and it was considered in the public interest, prosecution of perpetrators of domestic violence should continue even when a victim withdrew her complaint. These developments indicated a trend away from requiring victim participation towards placing the responsibility for effective prosecution squarely on the State. 127. While a decision not to prosecute in a particular case would not necessarily be in breach of due diligence obligations, a law or practice which automatically paralysed a domestic violence investigation or prosecution where a victim withdrew her complaint would be. In respect of these obligations and with reference to the Fatma Yıldırım v. Austria decision of the CEDAW Committee (cited in the relevant international materials section above ), it was submitted that the State had not only to ensure an appropriate legislative framework, but also to ensure effective implementation and enforcement practice. B. The Court ’ s assessment 1. Alleged failure to protect the applicant ’ s mother ’ s life ( a) Relevant principles 128. The Court reiterates that the first sentence of Article 2 § 1 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see L.C.B. v. the United Kingdom, 9 June 1998, § 36, Reports 1998-III). This involves a primary duty on the State to secure the right to life by putting in place effective criminal-law provisions to deter the commission of offences against the person backed up by law-enforcement machinery for the prevention, suppression and punishment of breaches of such provisions. It also extends in appropriate circumstances to a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual (see Osman v. the United Kingdom, 28 October 1998, § 115, Reports 1998-VIII, cited in Kontrová v. Slovakia, no. 7510/04, § 49, 31 May 2007 ). 129. Bearing in mind the difficulties in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, the scope of the positive obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Not every claimed risk to life, therefore, can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. For a positive obligation to arise, it must be established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. Another relevant consideration is the need to ensure that the police exercise their powers to control and prevent crime in a manner which fully respects the due process and other guarantees which legitimately place restraints on the scope of their action to investigate crime and bring offenders to justice, including the guarantees contained in Articles 5 and 8 of the Convention (see Osman, cited above, § 116). 130. In the opinion of the Court, where there is an allegation that the authorities have violated their positive obligation to protect the right to life in the context of their above-mentioned duty to prevent and suppress offences against the person, it must be established to its satisfaction that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. Furthermore, having regard to the nature of the right protected by Article 2, a right fundamental in the scheme of the Convention, it is sufficient for an applicant to show that the authorities did not do all that could be reasonably expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge. This is a question which can only be answered in the light of all the circumstances of any particular case ( ibid.). ( b) Application of the above principles to the present case ( i) Scope of the case 131. On the above understanding, the Court will ascertain whether the national authorities have fulfilled their positive obligation to take preventive operational measures to protect the applicant ’ s mother ’ s right to life. In this connection, it must establish whether the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of the applicant ’ s mother from criminal acts by H.O. As it appears from the parties ’ submissions, a crucial question in the instant case is whether the local authorities displayed due diligence to prevent violence against the applicant and her mother, in particular by pursuing criminal or other appropriate preventive measures against H.O. despite the withdrawal of complaints by the victims. 132. However, before embarking upon these issues, the Court must stress that the issue of domestic violence, which can take various forms ranging from physical to psychological violence or verbal abuse, cannot be confined to the circumstances of the present case. It is a general problem which concerns all member States and which does not always surface since it often takes place within personal relationships or closed circuits and it is not only women who are affected. The Court acknowledges that men may also be the victims of domestic violence and, indeed, that children, too, are often casualties of the phenomenon, whether directly or indirectly. Accordingly, the Court will bear in mind the gravity of the problem at issue when examining the present case ( ii) Whether the local authorities could have foreseen a lethal attack from H.O. 133. Turning to the circumstances of the case, the Court observes that the applicant and her husband, H.O., had a problematic relationship from the very beginning. As a result of disagreements, H.O. resorted to violence against the applicant and the applicant ’ s mother therefore intervened in their relationship in order to protect her daughter. She thus became a target for H.O., who blamed her for being the cause of their problems (see paragraph 28 above). In this connection, the Court considers it important to highlight some events and the authorities ’ reaction. (i) On 10 April 1995 H.O. and A.O. beat up the applicant and her mother, causing severe physical injuries, and threatened to kill them. Although the applicant and her mother initially filed a criminal complaint about this event, the criminal proceedings against H.O. and A.O. were terminated because the victims withdrew their complaints (see paragraphs 9-11 above). (ii) On 11 April 1996 H.O. again beat the applicant, causing life-threatening injuries. H.O. was remanded in custody and a criminal prosecution was commenced against him for aggravated bodily harm. However, following the release of H.O., the applicant withdrew her complaint and the charges against H.O. were dropped (see paragraphs 13-19 above). (iii) On 5 February 1998 H.O. assaulted the applicant and her mother using a knife. All three were severely injured and the public prosecutor decided not to prosecute anyone on the ground that there was insufficient evidence (see paragraphs 20 and 21 above). (iv) On 4 March 1998 H.O. ran his car into the applicant and her mother. Both victims suffered severe injuries, and the medical reports indicated that the applicant was unfit for work for seven days and that her mother ’ s injuries were life-threatening. Subsequent to this incident, the victims asked the Chief Public Prosecutor ’ s Office to take protective measures in view of the death threats issued by H.O., and the applicant initiated divorce proceedings. The police investigation into the victims ’ allegations of death threats concluded that both parties had threatened each other and that the applicant ’ s mother had made such allegations in order to separate her daughter from H.O. for the purpose of revenge, and had also “wasted” the security forces ’ time. Criminal proceedings were instituted against H.O. for issuing death threats and attempted murder, but following H.O. ’ s release from custody (see paragraph 31 above) the applicant and her mother again withdrew their complaints. This time, although the prosecuting authorities dropped the charges against H.O. for issuing death threats and hitting the applicant, the Diyarbakır Assize Court convicted him for causing injuries to the mother and sentenced him to three months ’ imprisonment, which was later commuted to a fine (see paragraphs 23-36 above). (v) On 29 October 2001 H.O. stabbed the applicant seven times following her visit to her mother. H.O. surrendered to the police claiming that he had attacked his wife in the course of a fight caused by his mother-in-law ’ s interference with their marriage. After taking H.O. ’ s statements the police officers released him. However, the applicant ’ s mother applied to the Chief Public Prosecutor ’ s Office seeking the detention of H.O., and also claimed that she and her daughter had had to withdraw their complaints in the past because of death threats and pressure by H.O. As a result, H.O. was convicted of knife assault and sentenced to a fine (see paragraphs 37-44 above). (vi) On 14 November 2001 H.O. threatened the applicant but the prosecuting authorities did not press charges for lack of concrete evidence (see paragraphs 45 and 46 above). (vii) On 19 November 2001 the applicant ’ s mother filed a petition with the local public prosecutor ’ s office, complaining about the ongoing death threats and harassment by H.O., who had been carrying weapons. Again, the police took statements from H.O. and released him, but the public prosecutor pressed charges against him for making death threats (see paragraphs 47 ‑ 49 above ). (viii) Later, on 27 February 2002, the applicant ’ s mother applied to the public prosecutor ’ s office, informing him that H.O. ’ s threats had intensified and that their lives were in immediate danger. She therefore asked the police to take action against H.O. The police took statements from H.O. and the Diyarbakır Magistrate ’ s Court questioned him about the allegations only after the killing of the applicant ’ s mother. H.O. denied the allegations and claimed that he did not wish his wife to visit her mother, who was living an immoral life (see paragraphs 51-52 above). 134. In view of the above events, it appears that there was an escalating violence against the applicant and her mother by H.O. The crimes committed by H.O. were sufficiently serious to warrant preventive measures and there was a continuing threat to the health and safety of the victims. When examining the history of the relationship, it was obvious that the perpetrator had a record of domestic violence and there was therefore a significant risk of further violence. 135. Furthermore, the victims ’ situations were also known to the authorities and the mother had submitted a petition to the Diyarbakır Chief Public Prosecutor ’ s Office, stating that her life was in immediate danger and requesting the police to take action against H.O. However, the authorities ’ reaction to the applicant ’ s mother ’ s request was limited to taking statements from H.O. about the mother ’ s allegations. Approximately two weeks after this request, on 11 March 2002, he killed the applicant ’ s mother (see paragraph 54 above ). 136. Having regard to the foregoing, the Court finds that the local authorities could have foreseen a lethal attack by H.O. While the Court cannot conclude with certainty that matters would have turned out differently and that the killing would not have occurred if the authorities had acted otherwise, it reiterates that a failure to take reasonable measures which could have had a real prospect of altering the outcome or mitigating the harm is sufficient to engage the responsibility of the State (see E. and Others v. the United Kingdom, no. 33218/96, § 99, 26 November 2002 ). Therefore, the Court will next examine to what extent the authorities took measures to prevent the killing of the applicant ’ s mother. ( iii) Whether the authorities displayed due diligence to prevent the killing of the applicant ’ s mother 137. The Government claimed that each time the prosecuting authorities commenced criminal proceedings against H.O., they had to terminate those proceedings, in accordance with the domestic law, because the applicant and her mother withdrew their complaints. In their opinion, any further interference by the authorities would have amounted to a breach of the victims ’ Article 8 rights. The applicant explained that she and her mother had had to withdraw their complaints because of death threats and pressure exerted by H.O. 138. The Court notes at the outset that there seems to be no general consensus among States Parties regarding the pursuance of the criminal prosecution against perpetrators of domestic violence when the victim withdraws her complaints (see paragraphs 87 and 88 above). Nevertheless, there appears to be an acknowledgement of the duty on the part of the authorities to strike a balance between a victim ’ s Article 2, Article 3 or Article 8 rights in deciding on a course of action. In this connection, having examined the practices in the member States (see paragraph 89 above), the Court observes that there are certain factors that can be taken into account in deciding to pursue the prosecution: – the seriousness of the offence; – whether the victim ’ s injuries are physical or psychological; – if the defendant used a weapon; – if the defendant has made any threats since the attack; – if the defendant planned the attack; – the effect (including psychological) on any children living in the household; – the chances of the defendant offending again; – the continuing threat to the health and safety of the victim or anyone else who was, or could become, involved; – the current state of the victim ’ s relationship with the defendant and the effect on that relationship of continuing with the prosecution against the victim ’ s wishes; – the history of the relationship, particularly if there had been any other violence in the past; and – the defendant ’ s criminal history, particularly any previous violence. 139. It can be inferred from this practice that the more serious the offence or the greater the risk of further offences, the more likely that the prosecution should continue in the public interest, even if victims withdraw their complaints. 140. As regards the Government ’ s argument that any attempt by the authorities to separate the applicant and her husband would have amounted to a breach of their right to family life, and bearing in mind that under Turkish law there is no requirement to pursue the prosecution in cases where the victim withdraws her complaint and did not suffer injuries which renders her unfit for work for ten or more days, the Court will now examine whether the local authorities struck a proper balance between the victim ’ s Article 2 and Article 8 rights. 141. In this connection, the Court notes that H.O. resorted to violence from the very beginning of his relationship with the applicant. On many instances both the applicant and her mother suffered physical injuries and were subjected to psychological pressure, given the anguish and fear. For some assaults H.O. used lethal weapons, such as a knife or a shotgun, and he constantly issued death threats against the applicant and her mother. Having regard to the circumstances of the killing of the applicant ’ s mother, it may also be stated that H.O. had planned the attack, since he had been carrying a knife and a gun and had been wandering around the victim ’ s house on occasions prior to the attack (see paragraphs 47 and 54 above). 142. The applicant ’ s mother became a target as a result of her perceived involvement in the couple ’ s relationship, and the couple ’ s children can also be considered as victims on account of the psychological effects of the ongoing violence in the family home. As noted above, in the instant case, further violence was not only possible but even foreseeable, given the violent behaviour and criminal record of H.O., his continuing threat to the health and safety of the victims and the history of violence in the relationship (see paragraphs 10, 13, 23, 37, 45, 47 and 51 above). 143. In the Court ’ s opinion, it does not appear that the local authorities sufficiently considered the above factors when repeatedly deciding to discontinue the criminal proceedings against H.O. Instead, they seem to have given exclusive weight to the need to refrain from interfering with what they perceived to be a “family matter” (see paragraph 123 above). Moreover, there is no indication that the authorities considered the motives behind the withdrawal of the complaints. This is despite the applicant ’ s mother ’ s indication to the Diyarbakır Public Prosecutor that she and her daughter had withdrawn their complaints because of the death threats issued and pressure exerted on them by H.O. (see paragraph 39 above). It is also striking that the victims withdrew their complaints when H.O. was at liberty or following his release from custody (see paragraphs 9-12, 17-19, 31 and 35 above). 144. As regards the Government ’ s argument that any further interference by the national authorities would have amounted to a breach of the victims ’ rights under Article 8 of the Convention, the Court notes its ruling in a similar case of domestic violence (see Bevacqua and S. v. Bulgaria, no. 71127/01, § 83, 12 June 2008), where it held that the authorities ’ view that no assistance was required as the dispute concerned a “private matter” was incompatible with their positive obligations to secure the enjoyment of the applicants ’ rights. Moreover, the Court reiterates that, in some instances, the national authorities ’ interference with the private or family life of the individuals might be necessary in order to protect the health and rights of others or to prevent commission of criminal acts (see K.A. and A.D. v. Belgium, nos. 42758/98 and 45558/99, § 81, 17 February 2005). The seriousness of the risk to the applicant ’ s mother rendered such intervention by the authorities necessary in the present case. 145. However, the Court regrets to note that the criminal investigations in the instant case were strictly dependent on the pursuance of complaints by the applicant and her mother on account of the domestic - law provisions in force at the relevant time; namely Articles 456 § 4, 457 and 460 of the now defunct Criminal Code, which prevented the prosecuting authorities from pursuing the criminal investigations because the criminal acts in question had not resulted in sickness or unfitness for work for ten days or more (see paragraph 70 above). It observes that the application of the above- mentioned provisions and the cumulative failure of the domestic authorities to pursue criminal proceedings against H.O. deprived the applicant ’ s mother of the protection of her life and safety. In other words, the legislative framework then in force, particularly the minimum ten days ’ sickness unfitness requirement, fell short of the requirements inherent in the State ’ s positive obligations to establish and apply effectively a system punishing all forms of domestic violence and providing sufficient safeguards for the victims. The Court thus considers that, bearing in mind the seriousness of the crimes committed by H.O. in the past, the prosecuting authorities should have been able to pursue the proceedings as a matter of public interest, regardless of the victims ’ withdrawal of complaints (see, in this respect, Recommendation Rec(2002)5 of the Committee of the Ministers, paragraphs 80-82 above). 146. The legislative framework preventing effective protection for victims of domestic violence aside, the Court must also consider whether the local authorities displayed due diligence to protect the right to life of the applicant ’ s mother in other respects. 147. In this connection, the Court notes that despite the deceased ’ s complaint that H.O. had been harassing her, invading her privacy by wandering around her property and carrying knives and guns (see paragraph 47 above), the police and prosecuting authorities failed either to place H.O. in detention or to take other appropriate action in respect of the allegation that he had a shotgun and had made violent threats with it (see Kontrová, cited above, § 53). While the Government argued that there was no tangible evidence that the applicant ’ s mother ’ s life was in imminent danger, the Court observes that it is not in fact apparent that the authorities assessed the threat posed by H.O. and concluded that his detention was a disproportionate step in the circumstances; rather the authorities failed to address the issues at all. In any event, the Court would underline that in domestic violence cases perpetrators ’ rights cannot supersede victims ’ human rights to life and to physical and mental integrity (see the Fatma Yıldırım v. Austria and A.T. v. Hungary decisions of the CEDAW Committee, both cited above, §§ 12.1.5 and 9.3 respectively). 148. Furthermore, in the light of the State ’ s positive obligation to take preventive operational measures to protect an individual whose life is at risk, it might have been expected that the authorities, faced with a suspect known to have a criminal record of perpetrating violent attacks, would take special measures consonant with the gravity of the situation with a view to protecting the applicant ’ s mother. To that end, the local public prosecutor or the judge at the Diyarbakır Magistrate ’ s Court could have ordered on his/her initiative one or more of the protective measures enumerated under sections 1 and 2 of Law no. 4320 (see paragraph 70 above). They could also have issued an injunction with the effect of banning H.O. from contacting, communicating with or approaching the applicant ’ s mother or entering defined areas (see, in this respect, Recommendation Rec(2002)5 of the Committee of the Ministers, paragraph 82 above). On the contrary, in response to the applicant ’ s mother ’ s repeated requests for protection, the police and the Diyarbakır Magistrate ’ s Court merely took statements from H.O. and released him (see paragraphs 47-52 above). While the authorities remained passive for almost two weeks apart from taking statements, H.O. shot dead the applicant ’ s mother. 149. In these circumstances, the Court concludes that the national authorities cannot be considered to have displayed due diligence. They therefore failed in their positive obligation to protect the right to life of the applicant ’ s mother within the meaning of Article 2 of the Convention. 2. The effectiveness of the criminal investigation into the killing of the applicant ’ s mother 150. The Court reiterates that the positive obligations laid down in the first sentence of Article 2 of the Convention also require by implication that an efficient and independent judicial system should be set in place by which the cause of a murder can be established and the guilty parties punished (see, mutatis mutandis, Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 51, ECHR 2002 -I ). The essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility (see Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, §§ 69 and 71, ECHR 2002-II ). A requirement of promptness and reasonable expedition is implicit in the context of an effective investigation within the meaning of Article 2 of the Convention (see Yaşa v. Turkey, 2 September 1998, §§ 102 ‑ 04, Reports 1998-VI, and Çakıcı v. Turkey [GC], no. 2 3657/94, §§ 80-87 and 106, ECHR 1999-IV). It must be accepted that there may be obstacles or difficulties which prevent progress in an investigation in a particular situation. However, a prompt response by the authorities in investigating a use of lethal force may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of tolerance of unlawful acts (see Avşar v. Turkey, no. 25657/94, § 395, ECHR 2001-VII). 151. The Court notes that a comprehensive investigation has indeed been carried out by the authorities into the circumstances surrounding the killing of the applicant ’ s mother. However, although H.O. was tried and convicted of murder and illegal possession of a firearm by the Diyarbakır Assize Court, the proceedings are still pending before the Court of Cassation (see paragraphs 57 and 58 above). Accordingly, the criminal proceedings in question, which have already lasted more than six years, cannot be described as a prompt response by the authorities in investigating an intentional killing where the perpetrator had already confessed to the crime. 3. Conclusion 152. In the light of the foregoing, the Court considers that the above-mentioned failures rendered recourse to criminal and civil remedies equally ineffective in the circumstances. It accordingly dismisses the Government ’ s preliminary objection (see paragraph 114 above) based on non-exhaustion of these remedies. 153. Moreover, the Court concludes that the criminal - law system, as applied in the instant case, did not have an adequate deterrent effect capable of ensuring the effective prevention of the unlawful acts committed by H.O. The obstacles resulting from the legislation and failure to use the means available undermined the deterrent effect of the judicial system in place and the role it was required to play in preventing a violation of the applicant ’ s mother ’ s right to life as enshrined in Article 2 of the Convention. The Court reiterates in this connection that, once the situation has been brought to their attention, the national authorities cannot rely on the victim ’ s attitude for their failure to take adequate measures which could prevent the likelihood of an aggressor carrying out his threats against the physical integrity of the victim (see Osman, cited above, § 116). There has therefore been a violation of Article 2 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 154. The applicant complained that she had been subjected to violence, injury and death threats several times but that the authorities were negligent towards her situation, which caused her pain and fear in violation of Article 3 of the Convention, which provides: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. The parties ’ submissions 155. The applicant alleged that the injuries and anguish she had suffered as a result of the violence inflicted upon her by her husband had amounted to torture within the meaning of Article 3 of the Convention. Despite the ongoing violence and her repeated requests for help, however, the authorities had failed to protect her from her husband. It was as though the violence had been inflicted under State supervision. The insensitivity and tolerance shown by the authorities in the face of domestic violence had made her feel debased, hopeless and vulnerable. 156. The Government argued that the applicant ’ s withdrawal of complaints and her failure to cooperate with the authorities had prevented the prosecuting authorities from pursuing the criminal proceedings against her husband. They further claimed that, in addition to the available remedies under Law no. 4320, the applicant could have sought shelter in one of the guest houses set up to protect women with the cooperation of public institutions and non-governmental organisations (NGOs). In this respect, the applicant could have petitioned the Directorate of Social Services and Child Protection Agency for admission to one of the guest houses. The addresses of these guest houses were secret and they were protected by the authorities. 157. Interights maintained that States were required to take reasonable steps to act immediately to stop ill-treatment, whether by public or private actors, of which they have known or ought to have known. Given the opaque nature of domestic violence and the particular vulnerability of women who are too often frightened to report such violence, it is submitted that a heightened degree of vigilance is required of the State. B. The Court ’ s assessment 1. Applicable principles 158. The Court reiterates that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the nature and context of the treatment, its duration, its physical and mental effects and, in some instances, the sex, age and state of health of the victim (see Costello - Roberts v. the United Kingdom, 25 March 1993, § 30, Series A no. 247 ‑ C ). 159. As regards the question whether the State could be held responsible, under Article 3, for the ill-treatment inflicted on persons by non-state actors, the Court reiterates that the obligation on the High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment or punishment, including such ill-treatment administered by private individuals (see, mutatis mutandis, H.L.R. v. France, 29 April 1997, § 40, Reports 1997 ‑ III ). Children and other vulnerable individuals, in particular, are entitled to State protection, in the form of effective deterrence, against such serious breaches of personal integrity (see A. v. the United Kingdom, 23 September 1998, § 22, Reports 1998 ‑ VI ). 2. Application of the above principles to the case 160. The Court considers that the applicant may be considered to fall within the group of “vulnerable individuals” entitled to State protection (see A. v. the United Kingdom, cited above, § 22). In this connection, it notes the violence suffered by the applicant in the past, the threats issued by H.O. following his release from prison and her fear of further violence as well as her social background, namely the vulnerable situation of women in south-east Turkey. 161. The Court observes also that the violence suffered by the applicant, in the form of physical injuries and psychological pressure, were sufficiently serious to amount to ill-treatment within the meaning of Article 3 of the Convention. 162. Therefore, the Court must next determine whether the national authorities have taken all reasonable measures to prevent the recurrence of violent attacks against the applicant ’ s physical integrity. 163. In carrying out this scrutiny, and bearing in mind that the Court provides final authoritative interpretation of the rights and freedoms defined in Section I of the Convention, the Court will consider whether the national authorities have sufficiently taken into account the principles flowing from its judgments on similar issues, even when they concern other States. 164. Furthermore, in interpreting the provisions of the Convention and the scope of the State ’ s obligations in specific cases (see, mutatis mutandis, Demir and Baykara v. Turkey [GC], no. 34503/97, §§ 85 and 86, ECHR 2008) the Court will also look for any consensus and common values emerging from the practices of European States and specialised international instruments, such as the CEDAW, as well as giving heed to the evolution of norms and principles in international law through other developments such as the Belém do Pará Convention, which specifically sets out States ’ duties relating to the eradication of gender-based violence. 165. Nevertheless, it is not the Court ’ s role to replace the national authorities and to choose in their stead from among the wide range of possible measures that could be taken to secure compliance with their positive obligations under Article 3 of the Convention (see, mutatis mutandis, Bevacqua and S., cited above, § 82). Moreover, under Article 19 of the Convention and under the principle that the Convention is intended to guarantee not theoretical or illusory, but practical and effective rights, the Court has to ensure that a State ’ s obligation to protect the rights of those under its jurisdiction is adequately discharged (see Nikolova and Velichkova v. Bulgaria, no. 7888/03, § 61, 20 December 2007). 166. Turning to its examination of the facts, the Court notes that the local authorities, namely the police and public prosecutors, did not remain totally passive. After each incident involving violence, the applicant was taken for medical examination and criminal proceedings were instituted against her husband. The police and prosecuting authorities questioned H.O. in relation to his criminal acts, placed him in detention on two occasions, indicted him for issuing death threats and inflicting actual bodily harm and, subsequent to his conviction for stabbing the applicant seven times, sentenced him to pay a fine (see paragraphs 13, 24 and 44 above). 167. However, none of these measures were sufficient to stop H.O. from perpetrating further violence. In this respect, the Government blamed the applicant for withdrawing her complaints and failing to cooperate with the authorities, which prevented the latter from continuing the criminal proceedings against H.O., pursuant to the domestic law provisions requiring the active involvement of the victim (see paragraph 70 above). 168. The Court reiterates its opinion in respect of the complaint under Article 2 of the Convention, namely that the legislative framework should have enabled the prosecuting authorities to pursue the criminal investigations against H.O. despite the withdrawal of complaints by the applicant on the basis that the violence committed by H.O. was sufficiently serious to warrant prosecution and that there was a constant threat to the applicant ’ s physical integrity (see paragraphs 137-48 above). 169. However, it cannot be said that the local authorities displayed the required diligence to prevent the recurrence of violent attacks against the applicant, since the applicant ’ s husband perpetrated them without hindrance and with impunity to the detriment of the rights recognised by the Convention (see, mutatis mutandis, Maria da Penha v. Brazil, Case 12.051, 16 April 2001, Report No. 54/01, Inter-Am. Ct. H.R., Annual Report 2000, OEA/Ser.L/V.II.111 Doc. 20 rev. (2000), §§ 42-44). By way of example, the Court notes that, following the first major incident (see paragraphs 9 and 10 above ), H.O. again beat the applicant severely, causing her injuries which were sufficient to endanger her life, but he was released pending trial “considering the nature of the offence and the fact that the applicant had regained full health”. The proceedings were ultimately discontinued because the applicant withdrew her complaints (see paragraphs 13 and 19 above). Again, although H.O. assaulted the applicant and her mother using a knife and caused them severe injuries, the prosecuting authorities terminated the proceedings without conducting any meaningful investigation (see paragraphs 20 and 21 above). Likewise, H.O. ran his car into the applicant and her mother, this time causing injuries to the former and life-threatening injuries to the latter. He spent only twenty-five days in prison and received a fine for inflicting serious injuries on the applicant ’ s mother (see paragraphs 23-36 above). Finally, the Court was particularly struck by the Diyarbakır Magistrate ’ s Court ’ s decision to impose merely a small fine, which could be paid by instalments, on H.O. as punishment for stabbing the applicant seven times (see paragraphs 37 and 44 above ). 170. In the light of the foregoing, the Court considers that the response to the conduct of the applicant ’ s former husband was manifestly inadequate to the gravity of the offences in question (see, mutatis mutandis, Ali and Ayşe Duran v. Turkey, no. 42942/02, § 54, 8 April 2008). It therefore observes that the judicial decisions in this case reveal a lack of efficacy and a certain degree of tolerance, and had no noticeable preventive or deterrent effect on the conduct of H.O. 171. As regards the Government ’ s assertion that, in addition to the available remedies under Law no. 4320, the applicant could have sought shelter in one of the guest houses set up to protect women, the Court notes that until 14 January 1998 – the date on which Law no. 4320 entered into force – Turkish law did not provide for specific administrative and policing measures designed to protect vulnerable persons against domestic violence. Even after that date, it does not appear that the domestic authorities effectively applied the measures and sanctions provided by that Law with a view to protecting the applicant against her husband. Taking into account the overall amount of violence perpetrated by H.O., the public prosecutor ’ s office ought to have applied on its own motion the measures contained in Law no. 4320, without expecting a specific request to be made by the applicant for the implementation of that Law. 172. This being said, even assuming that the applicant had been admitted to one of the guest houses, as suggested by the Government, the Court notes that this would only be a temporary solution. Furthermore, it has not been suggested that there was any official arrangement to provide for the security of the victims staying in those houses. 173. Finally, the Court notes with grave concern that the violence suffered by the applicant had not come to an end and that the authorities had continued to display inaction. In this connection, the Court points out that, immediately after his release from prison, H.O. again issued threats against the physical integrity of the applicant (see paragraph 59 above). Despite the applicant ’ s petition of 15 April 2008 requesting the prosecuting authorities to take measures for her protection, nothing was done until after the Court requested the Government to provide information about the measures that have been taken by their authorities. Following this request, on the instructions of the Ministry of Justice, the Diyarbakır Public Prosecutor questioned H.O. about the death threats issued by him and took statements from the applicant ’ s current boyfriend (see paragraphs 60-67 above). 174. The applicant ’ s legal representative again informed the Court that the applicant ’ s life was in immediate danger, given the authorities ’ continuous failure to take sufficient measures to protect her client (see paragraph 68 above). It appears that following the transmission of this complaint and the Court ’ s request for an explanation in this respect, the local authorities have now put in place specific measures to ensure the protection of the applicant (see paragraph 69 above). 175. Having regard to the overall ineffectiveness of the remedies suggested by the Government in respect of the complaints under Article 3, the Court dismisses the Government ’ s objection of non-exhaustion of domestic remedies. 176. The Court concludes that there has been a violation of Article 3 of the Convention as a result of the State authorities ’ failure to take protective measures in the form of effective deterrence against serious breaches of the applicant ’ s personal integrity by her husband. IV. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION READ IN CONJUNCTION WITH ARTICLES 2 AND 3 177. The applicant complained under Article 14 of the Convention, read in conjunction with Articles 2 and 3, that she and her mother had been discriminated against on the basis of their gender. Article 14 of the Convention provides: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” A. The parties ’ submissions 1. The applicant 178. The applicant alleged that the domestic law of the respondent State was discriminatory and insufficient to protect women, since a woman ’ s life was treated as inferior in the name of family unity. The former Civil Code, which was in force at the relevant time, contained numerous provisions distinguishing between men and women, such as the husband being the head of the family, his wishes taking precedence as the representative of the family union. The then Criminal Code also treated women as second-class citizens. A woman was viewed primarily as the property of society and of the male within the family. The most important indicator of this was that sexual offences were included in the section entitled “Crimes Relating to General Morality and Family Order”, whereas in fact sexual offences against women are direct attacks on a woman ’ s personal rights and freedoms. It was because of this perception that the Criminal Code imposed lighter sentences on persons who had murdered their wives for reasons of family honour. The fact that H.O. received a sentence of fifteen years is a consequence of that classification in the Criminal Code. 179. Despite the reforms carried out by the Government in the areas of the Civil Code and Criminal Code in 2002 and 2004 respectively, domestic violence inflicted by men is still tolerated and impunity is granted to the aggressors by judicial and administrative bodies. The applicant and her mother had been victims of violations of Articles 2, 3, 6 and 13 of the Convention merely because of the fact that they were women. In this connection, the applicant drew the Court ’ s attention to the improbability of any men being a victim of similar violations. 2. The Government 180. The Government averred that there was no gender discrimination in the instant case, since the violence in question was mutual. Furthermore, it cannot be claimed that there was institutionalised discrimination resulting from the criminal or family laws or from judicial and administrative practice. Nor could it be argued that the domestic law contained any formal and explicit distinction between men and women. It had not been proven that the domestic authorities had not protected the right to life of the applicant because she was a woman. 181. The Government further noted that subsequent to the reforms carried out in 2002 and 2004, namely revision of certain provisions of the Civil Code and the adoption of a new Criminal Code, and the entry into force of Law no. 4320, Turkish law provided for sufficient guarantees, meeting international standards, for the protection of women against domestic violence. The Government concluded that this complaint should be declared inadmissible for failure to exhaust domestic remedies or as being manifestly ill-founded since these allegations had never been brought to the attention of the domestic authorities and, in any event, were devoid of substance. 3. Interights, the third-party intervener 182. Interights submitted that the failure of the State to protect against domestic violence would be tantamount to failing in its obligation to provide equal protection of the law based on sex. They further noted that there was increasing recognition internationally – both within the United Nations and Inter-American systems – that violence against women was a form of unlawful discrimination. B. The Court ’ s assessment 1. The relevant principles 183. In its recent ruling in D.H. and Others v. the Czech Republic ([GC], no. 57325/00, 13 November 2007, §§ 175-80, ECHR 2007 ‑ IV ), the Court laid down the following principles on the issue of discrimination: “175. The Court has established in its case-law that discrimination means treating differently, without an objective and reasonable justification, persons in relevantly similar situations ( see Willis v. the United Kingdom, no. 36042/97, § 48, ECHR 2002 ‑ IV, and Okpisz v. Germany, no. 59140/00, § 33, 25 October 2005). ... The Court has also accepted that a general policy or measure that has disproportionately prejudicial effects on a particular group may be considered discriminatory notwithstanding that it is not specifically aimed at that group (see Hugh Jordan [ v. the United Kingdom, no. 24746/94 ], § 154 [, 4 May 2001 ], and Hoogendijk [ v. the Netherlands (dec.), no. 58461/00, 6 January 2005 ] ), and that discrimination potentially contrary to the Convention may result from a de facto situation (see Zarb Adami [ v. Malta, no. 17209/02 ], § 76 [, ECHR 2006- VIII] ). ... 177. As to the burden of proof in this sphere, the Court has established that once the applicant has shown a difference in treatment, it is for the Government to show that it was justified (see, among other authorities, Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, §§ 91-92, ECHR 1999-III, and Timishev [ v. Russia, nos. 55762/00 and 55974/00], § 57 [, ECHR 2005-XII] ). 178. As regards the question of what constitutes prima facie evidence capable of shifting the burden of proof on to the respondent State, the Court stated in Nachova and Others ( [ v. Bulgaria [GC], nos. 43577/98 and 43579/98 ], § 147 [, ECHR 2005-VII] ) that in proceedings before it there are no procedural barriers to the admissibility of evidence or pre-determined formulae for its assessment. The Court adopts the conclusions that are, in its view, supported by the free evaluation of all evidence, including such inferences as may flow from the facts and the parties ’ submissions. According to its established case-law, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Moreover, the level of persuasion necessary for reaching a particular conclusion and, in this connection, the distribution of the burden of proof are intrinsically linked to the specificity of the facts, the nature of the allegation made and the Convention right at stake. 179. The Court has also recognised that Convention proceedings do not in all cases lend themselves to a rigorous application of the principle affirmanti incumbit probatio (he who alleges something must prove that allegation – see Aktaş v. Turkey, no. 24351/94, § 272, ECHR 2003 ‑ V). In certain circumstances, where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII, and Anguelova v. Bulgaria, no. 38361/97, § 111, ECHR 2002-IV). In Nachova and Others ( cited above, § 157), the Court did not rule out requiring a respondent Government to disprove an arguable allegation of discrimination in certain cases, even though it considered that it would be difficult to do so in that particular case, in which the allegation was that an act of violence had been motivated by racial prejudice. It noted in that connection that in the legal systems of many countries proof of the discriminatory effect of a policy, decision or practice would dispense with the need to prove intent in respect of alleged discrimination in employment or in the provision of services. 180. As to whether statistics can constitute evidence, the Court has in the past stated that statistics could not in themselves disclose a practice which could be classified as discriminatory ( see Hugh Jordan, cited above, § 154). However, in more recent cases on the question of discrimination in which the applicants alleged a difference in the effect of a general measure or de facto situation ( see Hoogendijk, cited above, and Zarb Adami, cited above, §§ 77-78), the Court relied extensively on statistics produced by the parties to establish a difference in treatment between two groups (men and women) in similar situations. Thus, in Hoogendijk the Court stated: “[W]here an applicant is able to show, on the basis of undisputed official statistics, the existence of a prima facie indication that a specific rule – although formulated in a neutral manner – in fact affects a clearly higher percentage of women than men, it is for the respondent Government to show that this is the result of objective factors unrelated to any discrimination on grounds of sex. If the onus of demonstrating that a difference in impact for men and women is not in practice discriminatory does not shift to the respondent Government, it will be in practice extremely difficult for applicants to prove indirect discrimination.” 2. Application of the above principles to the facts of the present case ( a ) The meaning of discrimination in the context of domestic violence 184. The Court notes at the outset that when it considers the object and purpose of the Convention provisions, it also takes into account the international-law background to the legal question before it. Being made up of a set of rules and principles that are accepted by the vast majority of States, the common international or domestic law standards of European States reflect a reality that the Court cannot disregard when it is called upon to clarify the scope of a Convention provision that more conventional means of interpretation have not enabled it to establish with a sufficient degree of certainty (see Saadi v. the United Kingdom [GC], no. 13229/03, § 63, ECHR 2008, cited in Demir and Baykara, cited above, § 76). 185. In this connection, when considering the definition and scope of discrimination against women, in addition to the more general meaning of discrimination as determined in its case-law (see paragraph 183 above), the Court has to have regard to the provisions of more specialised legal instruments and the decisions of international legal bodies on the question of violence against women. 186. In that context, the CEDAW defines discrimination against women under Article 1 as “... any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.” 187. The CEDAW Committee has reiterated that violence against women, including domestic violence, is a form of discrimination against women (see paragraph 74 above). 188. The United Nations Commission on Human Rights expressly recognised the nexus between gender-based violence and discrimination by stressing in resolution 2003/45 that “all forms of violence against women occur within the context of de jure and de facto discrimination against women and the lower status accorded to women in society and are exacerbated by the obstacles women often face in seeking remedies from the State.” 189. Furthermore, the Belém do Pará Convention, which is so far the only regional multilateral human rights treaty to deal solely with violence against women, describes the right of every woman to be free from violence as encompassing, among others, the right to be free from all forms of discrimination. 190. Finally, the Inter-American Commission also characterised violence against women as a form of discrimination owing to the State ’ s failure to exercise due diligence to prevent and investigate a domestic violence complaint (see Maria da Penha v. Brazil, cited above, § 80). 191. It transpires from the above-mentioned rules and decisions that the State ’ s failure to protect women against domestic violence breaches their right to equal protection of the law and that this failure does not need to be intentional. ( b ) The approach to domestic violence in Turkey 192. The Court observes that although the Turkish law then in force did not make explicit distinction between men and women in the enjoyment of rights and freedoms, it needed to be brought into line with international standards in respect of the status of women in a democratic and pluralistic society. Like the CEDAW Committee (see the Concluding Comments on the combined fourth and fifth periodic report of Turkey CEDAW/C/TUR/4 ‑ 5 and Corr.1, 15 February 2005, §§ 12-21), the Court welcomes the reforms carried out by the Government, particularly the adoption of Law no. 4320 which provides for specific measures for protection against domestic violence. It thus appears that the alleged discrimination at issue was not based on the legislation per se but rather resulted from the general attitude of the local authorities, such as the manner in which the women were treated at police stations when they reported domestic violence and judicial passivity in providing effective protection to victims. The Court notes that the Turkish Government have already recognised these difficulties in practice when discussing the issue before the CEDAW Committee ( ibid. ). 193. In that regard, the Court notes that the applicant produced reports and statistics prepared by two leading NGOs, the Diyarbakır Bar Association and Amnesty International, with a view to demonstrating discrimination against women (see paragraphs 94-97 and 99-104 above). Bearing in mind that the findings and conclusions reached in these reports have not been challenged by the Government at any stage of the proceedings, the Court will consider them together with its own findings in the instant case (see Hoogendijk v. the Netherlands (dec.), no. 54861/00, 6 January 2005, and Zarb Adami v. Malta, no. 17209/02, §§ 77-78, ECHR 2006-VIII ). 194. Having examined these reports, the Court finds that the highest number of reported victims of domestic violence is in Diyarbakır, where the applicant lived at the relevant time, and that the victims were all women who suffered mostly physical violence. The great majority of these women were of Kurdish origin, illiterate or of a low level of education and generally without any independent source of income (see paragraph 98 above). 195. Furthermore, there appear to be serious problems in the implementation of Law no. 4320, which was relied on by the Government as one of the remedies for women facing domestic violence. The research conducted by the above- mentioned organisations indicates that when victims report domestic violence to police stations, police officers do not investigate their complaints but seek to assume the role of mediator by trying to convince the victims to return home and drop their complaint. In this connection, police officers consider the problem as a “family matter with which they cannot interfere” (see paragraphs 92, 96 and 102 above). 196. It also transpires from these reports that there are unreasonable delays in issuing injunctions by the courts, under Law no. 4320, because the courts treat them as a form of divorce action and not as an urgent action. Delays are also frequent when it comes to serving injunctions on the aggressors, given the negative attitude of the police officers (see paragraphs 91-93, 95 and 101 above). Moreover, the perpetrators of domestic violence do not seem to receive dissuasive punishments, because the courts mitigate sentences on the grounds of custom, tradition or honour (see paragraphs 103 and 106 above). 197. As a result of these problems, the above- mentioned reports suggest that domestic violence is tolerated by the authorities and that the remedies indicated by the Government do not function effectively. Similar findings and concerns were expressed by the CEDAW Committee when it noted “the persistence of violence against women, including domestic violence, in Turkey ” and called upon the respondent State to intensify its efforts to prevent and combat violence against women. It further underlined the need to fully implement and carefully monitor the effectiveness of Law no. 4320 on the protection of the family, and of related policies in order to prevent violence against women, to provide protection and support services to the victims, and punish and rehabilitate offenders (see the Concluding Comments, § 28). 198. In the light of the foregoing, the Court considers that the applicant has been able to show, supported by unchallenged statistical information, the existence of a prima facie indication that the domestic violence affected mainly women and that the general and discriminatory judicial passivity in Turkey created a climate that was conducive to domestic violence. ( c ) Whether the applicant and her mother have been discriminated against on account of the authorities ’ failure to provide equal protection of law 199. The Court has established that the criminal ‑ law system, as operated in the instant case, did not have an adequate deterrent effect capable of ensuring the effective prevention of unlawful acts by H.O. against the personal integrity of the applicant and her mother and thus violated their rights under Articles 2 and 3 of the Convention. 200. Bearing in mind its finding above that the general and discriminatory judicial passivity in Turkey, albeit unintentional, mainly affected women, the Court considers that the violence suffered by the applicant and her mother may be regarded as gender-based violence which is a form of discrimination against women. Despite the reforms carried out by the Government in recent years, the overall unresponsiveness of the judicial system and impunity enjoyed by the aggressors, as found in the instant case, indicated that there was insufficient commitment to take appropriate action to address domestic violence (see, in particular, section 9 of the CEDAW Committee ’ s General Recommendation No. 19, cited at paragraph 74 above). 201. Taking into account the ineffectiveness of domestic remedies in providing equal protection of law to the applicant and her mother in the enjoyment of their rights guaranteed by Articles 2 and 3 of the Convention, the Court holds that there existed special circumstances which absolved the applicant from her obligation to exhaust domestic remedies. It therefore dismisses the Government ’ s objection on non-exhaustion in respect of the complaint under Article 14 of the Convention. 202. In view of the above, the Court concludes that there has been a violation of Article 14 of the Convention, read in conjunction with Articles 2 and 3, in the instant case. V. ALLEGED VIOLATION OF ARTICLES 6 AND 13 OF THE CONVENTION 203. Relying on Articles 6 and 13 of the Convention, the applicant complained that the criminal proceedings brought against H.O. were ineffective and had failed to provide sufficient protection for her and her mother. 204. The Government contested that argument. 205. Having regard to the violations found under Articles 2, 3 and 14 of the Convention (see paragraphs 153, 17 6 and 202 above), the Court does not find it necessary to examine the same facts also in the context of Articles 6 and 13. VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION 206. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 207. The applicant claimed 70,000 Turkish liras (TRL) (approximately 35,000 euros (EUR)) in respect of pecuniary damage resulting from the death of her mother and TRL 250,000 (approximately EUR 125,000) for non ‑ pecuniary damage. She explained that subsequent to the killing of her mother she had been deprived of any economic support from her. The killing of her mother and ongoing violence perpetrated by her former husband had caused her stress and anguish, as well as irreparable damage to her psychological well-being and self-esteem. 208. The Government submitted that the amounts claimed were not justified in the circumstances of the case. They claimed, in the alternative, that the amounts were excessive and that any award to be made under this head should not lead to unjust enrichment. 209. As regards the applicant ’ s claim for pecuniary damage, the Court notes that while the applicant has demonstrated that on a number of occasions she had sought shelter at her mother ’ s home, it has not been proven that she was in any way financially dependent on her. However, this does not exclude an award in respect of pecuniary damage being made to an applicant who has established that a close member of the family has suffered a violation of the Convention (see Aksoy v. Turkey, 18 December 1996, § 113, Reports 1996-VI, where the pecuniary claims made by the applicant prior to his death in respect of loss of earnings and medical expenses arising out of detention and torture were taken into account by the Court in making an award to the applicant ’ s father, who had continued the application). In the present case, however, the claims for pecuniary damage relate to alleged losses accruing subsequent to the death of the applicant ’ s mother. The Court is not convinced that the applicant ’ s mother incurred any losses before her death. Thus, the Court does not find it appropriate in the circumstances of this case to make any award to the applicant in respect of pecuniary damage. 210. On the other hand, as regards the non-pecuniary damage, the Court notes that the applicant has undoubtedly suffered anguish and distress on account of the killing of her mother and the authorities ’ failure to undertake sufficient measures to prevent the domestic violence perpetrated by her husband and to give him deterrent punishment. Ruling on an equitable basis, the Court awards the applicant EUR 30,000 in respect of the damage sustained by her as a result of violations of Articles 2, 3 and 14 of the Convention. B. Costs and expenses 211. The applicant also claimed TRL 15,500 (approximately EUR 7,750) for the costs and expenses incurred before the Court. This included fees and costs incurred in respect of the preparation of the case (38 hours ’ legal work) and attendance at the hearing before the Court in Strasbourg as well as other expenses, such as telephone, fax, translation or stationary. 212. The Government submitted that in the absence of any supporting documents the applicant ’ s claim under this head should be rejected. 213. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 6,500 for costs and expenses for the proceedings before the Court, less EUR 1,494 received by way of legal aid from the Council of Europe. C. Default interest 214. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 2 (right to life) of the Convention concerning the murder of the applicant’s mother and a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention concerning the State’s failure to protect the applicant. It found that Turkey had failed to set up and implement a system for punishing domestic violence and protecting victims. The authorities had not even used the protective measures available and had discontinued proceedings as a “family matter” ignoring why the complaints had been withdrawn. There should have been a legal framework allowing criminal proceedings to be brought irrespective of whether the complaints had been withdrawn. The Court also held – for the first time in a domestic violence case – that there had been a violation of Article 14 (prohibition of discrimination) of the Convention, in conjunction with Articles 2 and 3: it observed that domestic violence affected mainly women, while the general and discriminatory judicial passivity in Turkey created a climate that was conducive to it. The violence suffered by the applicant and her mother could therefore be regarded as having been gender-based and discriminatory against women. Despite the reforms carried out by the Turkish Government in recent years, the overall unresponsiveness of the judicial system and the impunity enjoyed by aggressors, as in the applicant’s case, indicated an insufficient commitment on the part of the authorities to take appropriate action to address domestic violence. |
292 | (Suspected) terrorists | THE LAW JOINDER OF THE APPLICATIONS 90. Having regard to the similar subject matter of the applications, the Court finds it appropriate to join them and examine them jointly in a single judgment. ALLEGED VIOLATION OF ARTICLE OF THE CONVENTION 91. The applicants complained that the decisions of the Constitutional Court declaring their amparo appeals inadmissible deprived them of their right of access to a court. They relied on Article 6 § 1 of the Convention, which reads as follows: “ In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law. ” 92. The Government contested that argument. Admissibility 93. The Government objected that the available domestic remedies had not been exhausted. 94. The Court reiterates that under Article 35 § 1 of the Convention, an application can be lodged only after domestic remedies had been exhausted. In the present case the Government seems to be requesting a declaration of inadmissibility of the complaint on the same grounds as justified, in the Court ’ s view, the communication of the complaint in question, that is to say the reason for which the Constitutional Court declared the amparo appeal inadmissible. The Court considers therefore that that objection is closely linked to the merits of the complaint put forward by the applicants under Article 6 of the Convention, and decides to join it to the merits ( see, to that effect, Ferré Gisbert v. Spain, no. 39590/05, § 20, 13 October 2009 ). The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. Merits 1. The parties ’ submissions 95. The applicants complained that the Constitutional Court had dismissed their amparo appeals for failure to file an action for annulment with the Supreme Court, thus precluding their examination on the merits. They explained that the Supreme Court had itself explicitly stated in its notices accompanying the impugned judgments on points of law that the latter were open to an amparo appeal to the Constitutional Court within thirty days. The first and second applicants added that their actions for annulment had been declared inadmissible by the Supreme Court on the grounds that their complaints had already been examined in the judgments concluding their respective appeals on points of law. They therefore saw a blatant contradiction between the Supreme Court and the Constitutional Court, submitting that the interpretation effected by the latter of the admissibility criteria had been excessively formalistic and strict. 96. The Government contested that argument. They submitted that following the 2007 reform of the Organic Law on the Constitutional Court the scope of the action for annulment had been broadened in order to allow litigants to complain of any fundamental rights violation before the ordinary courts before lodging an amparo appeal with the Constitutional Court. That applied, in particular, to the instant case, in which the alleged fundamental rights violation had occurred on one single occasion before the Supreme Court, which was at the summit of the ordinary judicial system. In that connection, the Government relied on judgment no. 216/2013 of 19 December 2013 of the Constitutional Court ( see paragraph 86 above ). They pointed out that that court had declared the amparo inadmissible for failure to exercise the action for annulment before the ordinary courts. Furthermore, in the case of the applicant, his lawyer had not even lodged an action for annulment and, in the case of the other two applicants, their lawyers had requested the withdrawal of the actions which they had lodged with the Supreme Court. According to the Government, the applicants had deliberately triggered the declaration of the inadmissibility of their amparo appeals by the Constitutional Court without giving it an opportunity to consider their allegations of fundamental rights violations, which ran counter to the subsidiarity principle. 97. The first applicant replied that the Constitutional Court judgment cited by the Government supported the applicant party ’ s argument : that judgment clearly stated that where a court had had an opportunity to adjudicate on the fundamental rights subsequently relied upon before the Constitutional Court, it was no longer necessary to file an action for annulment before the latter court. He added that already in his reply to the appeal on points of law lodged by the public prosecutor ’ s office with the Supreme Court he had referred to the fundamental rights violations which the admission of the public prosecutor ’ s appeal would involve. 2. The Court ’ s assessment 98. The Court reiterated that the “right to a court”, of which the right of access is one aspect (see in particular Golder v. the United Kingdom, 21 February 1975, § 36, Series A no. 18), is not absolute; it is subject to limitations permitted by implication, in particular where the conditions of admissibility of an appeal are concerned, since by its very nature it calls for regulation by the State, which enjoys a certain margin of appreciation in this regard ( see García Manibardo v. Spain, no. 38695/97, § 36, ECHR 2000-II, and De la Fuente Ariza v. Spain, no. 3321/04, § 22, 8 November 2007). Nonetheless, the limitations applied must not restrict the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved ( see Zubac v. Croatia [GC], no. 40160/12, § 78, 5 April 2018, and Arribas Antón v. Spain, no. 16563/11, § 41, 20 January 2015). The right of access to a court is impaired when the rules cease to serve the aims of legal certainty and the proper administration of justice and form a sort of barrier preventing the litigant from having his or her case determined on the merits by the competent court ( see Kart v. Turkey [GC], no. 8917/05, § 79, ECHR 2009 ( extracts )). 99. The Court also reiterates that Article 6 of the Convention does not compel the Contracting States to set up courts of appeal or of cassation and, even less, courts with jurisdiction to deal with amparo appeals. However, where such courts do exist, the State must ensure that they provide litigants with access to the fundamental guarantees of Article 6 ( see Zubac, cited above, § 80, and Arribas Antón, cited above, § 42). Furthermore, the compatibility of limitations laid in domestic law with the right of access to a court as secured by Article 6 depends on the specific features of the proceedings in issue. The Court has several times found that the imposition by the national courts of compliance with formalities in order to lodge an appeal is liable to breach the right of access to a court. This is the case when an excessively formalistic interpretation of a legal provision prevents de facto the consideration of the merits of a remedy exercised by a litigant ( see, for example, Zvolský and Zvolská v. the Czech Republic, no. 46129/99, §§ 48 ‑ 55, ECHR 2002 ‑ IX; De la Fuente Ariza, cited above, §§ 24-28; and Ferré Gisbert, cited above, §§ 28-33). Regard should be had to the domestic proceedings as a whole and to the role played in them by the Constitutional Court, although the conditions for the admissibility of an amparo appeal may be stricter than in the case of an ordinary appeal ( see Arribas Antón, cited above, § 42). 100. Finally, the Court reiterates the fundamental principle that it is for the national authorities, particularly the courts, to interpret and apply domestic law ( see Brualla Gómez de la Torre v. Spain, 19 December 1997, Reports of Judgments and Decisions 1997-VIII, § 31). The Court will not therefore question the judgment of the national courts as regards alleged errors of law, unless their findings can be regarded as arbitrary or manifestly unreasonable ( see, to that effect, Bochan v. Ukraine (no. 2) [GC], no. 22251/08, § 61, ECHR 2015). 101. In the present case, the Court observes that the Constitutional Court ’ s decision of 24 May 2016 ( concerning the first applicant) and those of 22 June 2016 ( concerning the second and applicants) declared inadmissible the amparo appeals lodged by the applicants against the Supreme Court ’ s judgments rejecting the possibility of grouping together sentences served in France with sentences imposed in Spain. Those decisions were based on the grounds of inadmissibility set out in section 44 ( 1 ) ( a) of the Organic Law on the Constitutional Court, that is to say non- exhaustion of ordinary legal remedies : in the present case the Supreme Court criticised the applicants for failing to lodge an action for annulment under section 241 ( 1 ) LOPJ. 102. The Court notes that the first two applicants did in fact lodge actions for annulment with the Supreme Court, requesting urgent procedure so that they could lodge an amparo appeal with the Constitutional Court within the thirty-day legal time-limit from the date of notification of the cassation judgments. It is true that those two applicants subsequently withdrew their actions for annulment before applying to the Constitutional Court, but the Supreme Court nonetheless served them with a decision declaring the actions inadmissible as irrelevant. That decision was served after the expiry of the thirty-day legal time-limit for lodging the amparo appeal and after the applicants in question had lodged that appeal with the Constitutional Court ( see paragraphs 31 and 50 above ). It should be noted that the notices accompanying the cassation judgments on 10 April 2015 explained that the latter were final but that an amparo appeal lay with them before the Constitutional Court within a thirty-day time-limit. There is nothing to suggest that that time-limit had been suspended by the lodging of the actions for annulment. If the two applicants had awaited notification of the decisions concerning their actions for annulment before preparing and validly lodging their amparo appeal, there would have been nothing to prevent the Constitutional Court from subsequently declaring their appeals inadmissible as being out of time, on grounds of the irrelevance of the actions for annulment ( see, for example, Del Pino García and Ortín Méndez v. Spain ( dec. ), no. 23651/07, § 32, 14 June 2011). 103. Furthermore, the Court notes that the Constitutional Court decisions concerning the first and second applicants are inconsistent with the decisions of the Supreme Court declaring inadmissible as irrelevant the actions for annulment lodged by those applicants. Indeed, the Supreme Court held that most of the complaints put forward by the two applicants had already been examined in the impugned cassation judgments, and that pursuant to section 241 ( 1 ) LOPJ the actions for annulment had therefore to be declared inadmissible. The Court observes that those remedies had already been the subject of a thorough assessment in the framework of the cassation proceedings ( see paragraphs 23-24 above ). Moreover, this was the position defended by the two applicants in their amparo appeals with regard to the legal requirement of exhaustion of available remedies ( see paragraphs 30 and 49 above ). 104. Clearly, it is not the Court ’ s task to determine the question whether an action for annulment was an appropriate remedy under domestic law in these circumstances. However, the Court considers that the reasoning of the impugned decisions of the Constitutional Court is inconsistent with that of the previous decisions given by the Supreme Court on the irrelevance of the actions for annulment. 105. The Court notes that the third applicant, unlike the first and second applicants, did not file an action for annulment with the Supreme Court before lodging an amparo appeal with the Constitutional Court. It should nevertheless be noted that, since he was represented by the same solicitor as the first and second applicants, he could have been apprised of the declaration of inadmissibility of the actions for annulment lodged by the other applicants before the expiry of the thirty-day time-limit for lodging an amparo appeal. In those circumstances, that applicant and his representative could reasonably have foreseen that if he were to file an action for annulment with the Supreme it would also fail. The third applicant cannot therefore be accused of having directly lodged an amparo appeal with the Constitutional Court, especially since in his appeal he, like the other applicants, pointed out that the Supreme Court, which had originated the impugned cassation judgment, had already adjudicated on all the allegations of fundamental rights violations which he was submitting to the Constitutional Court, and that he had therefore exhausted all the available legal remedies ( see paragraph 67 above ). 106. The Court attaches particular importance to whether the procedure to be followed for an action for annulment as a remedy to be used before applying to the Constitutional Court could be regarded as foreseeable from the litigants ’ point of view (see, as regards the requirement of foreseeability of a restriction on access to a higher court, Zubac, cited above, §§ 87-89). It notes in that regard that the Government relies on a Constitutional Court judgment of 2013 establishing the criteria for determining when the exercise of an action for annulment was required before an application to that higher court ( see paragraph 86 above ). The Court notes, however, that that judgment stated that the use of such an action was not required where the court having originated the impugned judicial decision given at first instance had already adjudicated on the allegations of fundamental rights violations which were subsequently to be put forward in the framework of the amparo appeal. That was precisely the situation in the present case, as noted by the Supreme Court in its decisions declaring the first and second applicants ’ actions for annulment inadmissible. Accordingly, the Constitutional Court ’ s subsequent decisions were not foreseeable or consistent with the case-law relied upon by the Government. 107. In the light of all those facts, the Court considers that a disproportionate burden was imposed on the applicants, thus upsetting the requisite fair balance between, on the one hand, the legitimate aim of ensuring compliance with the formal conditions for applying to the Constitutional Court, and on the other, the right of access to that court. In the present case, the fact that the amparo appeals had been declared inadmissible on grounds of non- exhaustion of available domestic remedies, even though the Supreme Court had previously declared the first and second applicants ’ actions for annulment inadmissible as irrelevant and had served the litigants with its decisions outside the thirty-day time-limit for lodging an amparo appeal, must at the very least be considered as creating legal uncertainty to the applicants ’ detriment ( see, mutatis mutandis, Ferré Gisbert, cited above, § 33). 108. The Court consequently holds that the inadmissibility decisions regarding the amparo appeals for non- exhaustion of available domestic remedies deprived the applicants of their right of access to a court. 109. The Court therefore rejects the Government ’ s objection and finds a violation of Article 6 § 1 of the Convention. ALLEGED VIOLATION OF ARTICLE 7 OF THE CONVENTION 110. The applicants complained of what they saw as the retroactive application of new Supreme Court case-law and of a new law which had come into force after their conviction, arguing that this had prolonged the actual length of their prison terms. They relied on Article 7 of the Convention, the relevant parts of which provide : “ 1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. ... ”. 111. The Government contested that argument. A. Admissibility 112. The Government pleaded a failure to exhaust domestic remedies. They submitted that the available remedies had not been properly exhausted because the applicants ’ amparo appeals had been declared inadmissible by the Constitutional Court on grounds of non- exhaustion of available remedies. The applicants therefore stood accused of failure to comply with the requisite legal formalities and conditions for the admissibility of a domestic remedy. 113. The Government considered that the issue arising in the present case related exclusively to the enforcement of the lawfully imposed sentences, which issue was not covered by Article 7 of the Convention. They stated that the sentences imposed on the applicants had totalled over three thousand years ’ imprisonment (for the first applicant), forty ‑ six years ’ imprisonment (for the second applicant) and over four thousand seven hundred years ’ imprisonment (for the third applicant), respectively. The implementation of the maximum thirty-year prison term was aimed at restricting or setting an upper limit on the actual period of imprisonment under sentences already imposed. Furthermore, implementing the maximum prison term presupposed the remission of a large number of sentences imposed for connected offences. The Government relied in that regard on the judgment in the case of Kafkaris v. Cyprus ([GC], no. 21906/04, § 142, 12 February 2008) as regards the distinction between a measure constituting a “ sentence ” and a measure relating to the “ execution ” or “ enforcement ” of a “ sentence ”. They therefore invited the Court to declare that complaint inadmissible as incompatible ratione materiae. 114. The applicants replied that they had exhausted all the existing domestic remedies in conformity with the subsidiarity principle. 115. They submitted that the issued raised by their case went beyond mere sentence enforcement. They took the view that refusing to group together the sentences served in France for the purposes of implementing the maximum prison term in Spain had led to a redefinition of the scope of the “ sentences ” imposed, bringing it within the ambit of Article 7 of the Convention. 116. The Court notes that the first objection is closely linked to the substance of the applicants ’ complaint under Article 6 § 1 of the Convention. In the light of the considerations which led it to find a violation of that provision ( see paragraphs 101-109 above ), the Court considers that the applicants gave the domestic courts an opportunity to provide redress for the alleged violation, and concludes that it must reject the Government ’ s objection as to failure to exhaust domestic remedies. 117. As regards the second objection as to inadmissibility, the Court considers that it is closely linked to the substance of the applicants ’ complaint under Article 7 and decides to join it to the merits ( see, mutatis mutandis, Gurguchiani v. Spain, no. 16012/06, § 25, 15 December 2009). Further noting that that complaint is not manifestly ill- founded within the meaning of Article 35 § 3 ( a) of the Convention and that it is not inadmissible on any other grounds, the Court declares it admissible. B. The merits 1. The parties ’ submissions 118. The applicants submitted that the application in their cases of the case-law reversal effected under judgment no. 874/2014 of the Supreme Court and under Organic Law no. 7/2014, which had come into force after their conviction and their requests to group together the sentences served in France, had actually prolonged their prison sentences. The application of that case-law reversal, which had been detrimental to their interests, had been unforeseeable and retroactive. The applicants explained that when they had submitted their requests to group together the sentences served in France they had been unable, in the light of domestic law as a whole, to foresee the legislative changes that would stem from Organic Law no. 7/2014 and the Supreme Court ’ s case-law reversal. They added that the justification for this reversal had been the spirit of Organic Law no. 7/2014, which the Supreme Court had de facto applied retroactively. 119. The Government considered that the applicants or their lawyers could not have expected – before the adoption of Framework Decision no. 2008/675/JAI – that there was any possibility of the sentences imposed in France being grouped together with the sentences to be served in Spain for the purposes of determining the maximum prison terms to be served. Nor could they have foreseen such a possibility before the date scheduled for the transposition into national law of the Framework Decision (15 August 2010), or between that date and the date of publication of the draft transposition legislation (21 March 2014). Indeed, the Government pointed out that when the Supreme Court had delivered its isolated judgment no. 186/2014 ( on 13 March 2014), none of the three applicants had submitted any request under the Framework Decision for grouping together the sentences served in France. They added that once the draft transposition legislation had been tabled, the applicants and their lawyers had known that they would have to comply with its provisions. Furthermore, the Government stated that before the enactment and entry into force of Organic Law no. 7/2014 (on 3 December 2014), the only established Supreme Court case-law was that prohibiting the grouping together of sentences imposed in France. Furthermore, the decisions of the Audiencia Nacional in the three applicants ’ favour had been given one day before the entry into force of that law and had been immediately challenged before the Supreme Court, and the latter had quashed and annulled them in line with the approach adopted in its leading judgment no. 874/2014 of 27 January 2015, which was adopted by the plenary court. The Government explained that that Supreme Court judgment dispelled any doubts which might have arisen as regards the validity of its previous line of authority. 120. The Government drew a distinction between the present case and Del Río Prada. They took the view that in the instant case the pre-existing legislation and the Supreme Court case-law had been clear: unless there was an international treaty which was in force and had been transposed into domestic law, sentences imposed abroad were not taken into account for the purposes of the determination of the maximum prison term. They held that it was impossible to claim that judgment no. 186/2014 could have created “ certainty ” in the applicants ’ or their lawyers ’ minds as regards the change in the applicable legislation, because it was a case of one isolated judgment of the Supreme Court which had not set a precedent and had given rise to contradictory decisions in the different sections of the Audiencia Nacional based on an EU Framework Decision currently in the process of transposition. The judgment had been delivered during the procedure for enacting the transposition bill at parliamentary level, and had in fact been disavowed only nine months later by the plenary Criminal Division of the Supreme Court. The Government pointed out that the applicants had never secured a final court decision in their favour regarding the incorporation of the sentences imposed in France. Furthermore, the fact that the first and second applicants had been released pending the outcome of the appeals on points of law had constituted an interim measure benefiting those two applicants. 2. The Court ’ s assessment 121. The Court refers to its Del Río Prada judgment, cited above, which sets out the general principles concerning Article 7 of the Convention (§§ 77-93). As regards, more specifically, the distinction between the concept of a “penalty” and that of measures relating to the “execution” of a penalty, it established in that judgment that it did not rule out the possibility that measures taken by the legislature, the administrative authorities or the courts after the final sentence has been imposed or while the sentence is being served may result in the redefinition or modification of the scope of the “penalty” imposed by the trial court. When that happens, the Court considers that the measures concerned should fall within the scope of the prohibition of the retroactive application of penalties enshrined in Article 7 § 1 in fine of the Convention ( ibid. , § 89). 122. In the present case, the Court observes from the outset that by three decisions given on 7 March 2006 ( concerning the first applicant), 31 July 1997 ( concerning the second applicant) and 18 November 2013 ( concerning the third applicant), the trial courts fixed at thirty years the maximum prison terms to be served by the applicants under the custodial sentences imposed on them under section 70.2 of the 1973 Penal Code in force at the time of the commission of the offences. In the case of the first and third applicants, that measure was also the result of a decision to group together the various sentences imposed in the framework of separate sets of criminal proceedings, having regard to the chronological connection between the offences committed, on the basis of section 988 of the Criminal Procedure Act. Under Spanish law, a sentence to be served resulting from that maximum prison term and from those decisions to group sentences together and / or set au upper limit on them was conceived of as a new independent sentence ( see, to that effect, Del Río Prada, cited above, §§ 97-99). Furthermore, it was from that latter sentence that such prison benefits as remissions of sentence ( see paragraphs 14, 41 and 59 above; see also Del Río Prada, cited above, § 99) and periods spent in pre-trial detention were to be deducted. 123. In the light of the foregoing considerations, the Court cannot accept the Government ’ s argument that the application of the maximum prison term laid down in the Penal Code was a measure that placed an upper limit on the total term of imprisonment, relating exclusively to the “execution” of individual sentences already imposed. On the contrary, it was a measure which concerned the extent of the sentences imposed on the applicants ( see also, as regards combining multiple sentences into an overall sentence, Koprivnikar v. Slovenia, §§ 50-52, 24 January 2017). Therefore, the impugned decisions of the Supreme Court refusing to allow the applicants ’ requests to take account of the sentences already served in France for the purposes of the determination of the maximum prison term in Spain also concerned the scope of the sentences imposed, and thus fell within the ambit of the last sentence of Article 7 § 1 of the Convention. The Government ’ s objection as to incompatibility ratione materiae should therefore be rejected. 124. The Court must now seek to establish whether the impugned decisions of the Supreme Court altered the extent of the sentences imposed on the applicants. In doing so, it must have regard to the domestic law as a whole and to how it was applied at the material time ( see, mutatis mutandis, Del Río Prada, cited above, §§ 90, 96 and 109). However, the Court points out that it is not competent to decide what is the proper interpretation of domestic law in the sphere of consideration of sentences served in another EU member State or to rule formally on the question whether the Supreme Court correctly applied Framework Decision no. 2008/675/JAI or any other provision of EU law ( see, mutatis mutandis, Avotiņš v. Latvia [GC], no. 17502/07, § 100, ECHR 2016). 125. In the present case the Court noted, firstly, that the impugned decisions of the Supreme Court did not alter the maximum prison term, which has always been thirty years ’ imprisonment. The subject matter of the dispute before the Spanish courts was whether, in order to implement that maximum term, account should be taken of sentences already served by the applicants in France under the convictions handed down in France for criminal offences committed in that State. The decisions given by the Audiencia Nacional in favour of taking account of those sentences never became res judicata, because the public prosecutor ’ s office appealed against them on points of law to the Supreme Court, the highest court in the Spanish judicial system, with jurisdiction to determine divergences among the lower courts in the application of the law. The fact that the first and second applicants were released on licence pursuant to the Audiencia Nacional ’ s decisions in favour of considering the French sentences, pending the outcome of the appeals on points of law, did not alter the non - final nature of those decisions. 126. The Court also observes that when the applicants had committed the criminal offences and when the decisions had been adopted to take account of and/or to place an upper limit on their sentences (on 7 March 2006, 31 July 1997 and 18 November 2013 respectively), the relevant Spanish law, taken as a whole – including precedent-based law – did not provide, to any reasonable extent, for taking account of sentences already served in another State for the purposes of determining the maximum prison term in Spain. Section 988 of the Criminal Procedure Act on the consideration of sentences imposed in the framework of separate criminal proceedings did not include any specific rule on taking account of sentences imposed abroad. The only precedents in favour of such consideration of sentences concerned sentences imposed abroad prior to being served in Spain under an international treaty on the transfer of convicted persons, but not sentences already completed abroad ( see paragraph 21 above ). In the only case similar to that of the applicants ( Supreme Court judgment no. 2117/2002, see paragraph 82 above ), the Supreme Court had refused to take into account a sentence already served in France. That lack of foreseeability might explain the fact that at the time the applicants had not requested the consideration of the sentences served in France, even though the latter had ended in 1995, 1996 and 2000 respectively. Even the third applicant, who had requested consideration of his sentence on 4 December 2012, when Framework Decision no. 2008/675/JAI was already in force, had not referred to the sentence served in France and / or the Framework Decision ( see paragraph 57 above ). It should be noted that under the Treaty on European Union itself, Framework Decisions could not induce any direct effect. 127. The Court attaches importance to the fact that the three applicants did not request consideration of their sentences served in France on the basis of Framework Decision no. 2008/675/JAI until after the adoption on 13 March 2014 of Supreme Court judgment no. 186/2014, that is, on 25 March 2014, 20 March 2014 and 30 April 2014 respectively. In that judgment the Supreme Court had been called upon for the first time to interpret Framework Decision no. 2008/675/JAI, and even though it had been in favour of the possibility of taking account of sentences served in another EU Member State for the purposes of grouping sentences together, it pointed out that this stance had been adopted because there was no national legislation transposing the Framework Decision or any explicit regulation on that matter ( see paragraph 83 above ). Pursuing that approach, some sections of the Criminal Division of the Audiencia Nacional have grouped sentences served in France together with sentences imposed in Spain for the purpose of determining the maximum thirty-year prison term. All these decisions, apart from three isolated cases, were set aside by the Supreme Court after the public prosecutor ’ s office had lodged appeals on points of law and after the adoption by the Plenary Criminal Division of the Supreme Court of its judgment no. 874/2014 of 27 January 2015 ( see paragraph 85 above ). The Court observes that under Spanish law, precedents are not a source of law and that only case-law repeatedly established by the Supreme Court can complement law ( see paragraph 89 above ). At all events, irrespective of whether isolated judgment no. 186/2014 of 13 March 2014 set an authoritative precedent under Spanish law ( see, mutatis mutandis, Del Río Prada, § 112), the Court considers that that judgment was not accompanied by a judicial or administrative practice consolidated over time which could have created legitimate expectations in the applicants as regards a stable interpretation if criminal law. The present case clearly differs in that respect from Del Río Prada, where the applicant could reasonably have thought, while she was serving her prison sentence and when the decision to combine the sentences and fix a maximum prison term was taken, that the remissions of sentence for work done in prison would be deducted from the maximum thirty -year prison term in accordance with the established practice that had been applied consistently by the Spanish prison and judicial authorities for many years ( ibid. , §§ 98-100, 103, 112-113). It was with regard to that previous practice concerning the interpretation of criminal law and the scope of the sentence imposed that the Court considered that the Supreme Court ’ s case-law reversal ( the “ Parot doctrine ” ) as applied to the applicant could not be deemed foreseeable, and that consequently there had been a violation of Article 7 ( ibid. , §§ 111-118). 128. The Court observes that in the instant case the divergences among the different courts concerned as to the possibility of grouping together sentences served in another Member State with sentences imposed in Spain only lasted for about ten months, up until the adoption by the Supreme Court of its leading judgment no. 874/2014. It accepts that achieving consistency of the law may take time, and periods of conflicting case-law may therefore be tolerated when the domestic legal system is capable of accommodating them ( see, mutatis mutandis, Borcea v. Romania ( dec. ), no. 55959/14, § 66, 22 September 2015). In the present case, the highest court in Spain in matters of criminal law, that is to say the Supreme Court ( its plenary Criminal Division ), settled the divergence in question by adjudicating on the issue of taking account of sentences served in another EU Member State. The Court notes that the solutions adopted in the applicants ’ cases merely followed the judgment of the plenary Supreme Court. 129. In the light of the foregoing considerations, and having regard to the relevant domestic law in force when the applicants committed the offences, when the decisions had been adopted to take account of and/or to place an upper limit on their sentences, and when the applicants requested consideration of the sentences served in France, the Court considers that the impugned decisions did not lead to any change in the scope of the sentences imposed. The sentences imposed were always maximum thirty-year prison terms resulting from the consideration of and / or the placing of an upper limit on the individual sentences imposed on the applicants by the Spanish criminal courts, without taking account of the sentences imposed and served in France. 130. It follows that the impugned Supreme Court decisions did not lead to any change in the extent of the sentences imposed on the applicants. Accordingly, the Court finds that there was no violation of Article 7 of the Convention. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 131. The applicants further complained of the fact that their detention had been extended by twelve years (in the case of the first applicant), seven years (in the case of the second applicant) and ten years (in the case of the third applicant), respectively, owing to the retroactive application of the law to their detriment. The first and third applicants alleged that they had been held in unlawful and arbitrary detention since 27 January 2013 and 5 August 2016 respectively. The applicants relied on Article 5 § 1 of the Convention, the relevant parts of which provide : “ 1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law : (a) the lawful detention of a person after conviction by a competent court; ... ” 132. The Government contested that argument. A. Admissibility 133. The Government raised the same preliminary objection as to non ‑ exhaustion of domestic remedies as under Article 7 (see paragraph 112 above). The applicants recorded their disagreement. 134. The Court can only refer to its previous conclusions under Article 6 § 1 of the Convention concerning the right of access to the Constitutional Court and the objection as to non- exhaustion of domestic remedies in relation to Article 7 ( see paragraphs 101-109 and 116 above ). The objection must accordingly be rejected. 135. Noting that that complaint is not manifestly ill- founded within the meaning of Article 35 § 3 ( a) of the Convention and that it is not inadmissible on any other grounds, the Court declares it admissible. B. The merits 1. The parties ’ submissions 136. The applicants submitted that their continued detention after the date on which they would have completed their sentences if the Spanish courts had agreed to take into account the sentences which they had served in France could not have been “ lawful or “ in accordance with a procedure prescribed by law ”. They took the view that that continued detention was the result of the retroactive application of Organic Law no. 7/2014 and of the Supreme Court case-law applying that law, to their detriment. 137. The Government contested that argument. They submitted that the decisions of the Audiencia Nacional allowing the requests for consideration of the sentences served by the applicants in France for the purposes of determining the maximum prison term had been non- final decisions, specifying that they had all been quashed and set aside by the Supreme Court. They argued that the fact that the applicants had been released on licence during the cassation proceedings had merely been the result of applying domestic legislation, which, in their view, had been fully consistent with paragraphs 3 and 4 of Article 5 of the Convention. From the moment the Supreme Court had set aside the decisions of the Audiencia Nacional it had been necessary to recalculate the sentences to be served. In that connection, the recalculation had been effected on the basis of the final judgments of the Supreme Court deciding not to take account of the sentences served in France for the purposes of determining the maximum prison term in Spain. The Government also alleged that, inasmuch as the approach followed by the Supreme Court had fully complied with the provisions of Article 7 of the Convention, the actual prison term should be understood as being covered by the sentences imposed in Spain and that the applicable law had been clearly foreseeable. The Government considered that it was only if the Audiencia Nacional ’ s decisions on the consideration of sentences had become final that the prison terms in question would not have been covered by the sentences imposed. 2. The Court ’ s assessment 138. The Court refers to its judgment in Del Río Prada, cited above, which sets out the relevant principles concerning Article 5 § 1 of the Convention, and in particular indent ( a) thereof (§§ 123-127). 139. In the present case, the Court has no doubt that the applicants were in fact convicted, after proceedings prescribed by law, by courts which were competent within the meaning of Article 5 § 1 ( a) of the Convention. Moreover, the applicants do not deny that their detention was lawful up until the dates on which they ought to have completed their respective sentences in accordance with the decisions of 2 December 2014 of the Audiencia Nacional ( on 27 January 2013, 24 August 2013 and 5 August 2016 respectively ), taking into account the sentences which they had served in France for the purposes of determining the maximum thirty-year prison term. It remains to be seen whether the applicants ’ continued detention or reimprisonment after those dates was “ lawful ” within the meaning of Article 5 § 1 ( a) of the Convention. 140. In the light of the considerations which have led it to find no violation of Article 7 of the Convention ( see paragraphs 124-130 above ), the Court considers that when the applicants ’ sentences had been imposed, and even later, when they requested the taking into account of the sentences served in France, Spanish law had not provided, to any reasonable extent, that sentences already served in France should be taken into account for the purposes of determining the maximum thirty-year prison term. Given that the impugned decisions had not led to any change, in the light of Article 7, in the extent of the sentences imposed, the prison terms impugned by the applicants cannot be designated as unforeseeable or unauthorised by “ law” within the meaning of Article 5 § 1 ( see, to converse effect, Del Río Prada, cited above, §§ 130-131). 141. Moreover, the Court notes that there is a causal link for the purposes of Article 5 § 1 ( a) of the Convention between the sentences imposed on the applicants and their continued detention after the dates indicated by them, stemming from the guilty verdicts and the maximum thirty-year prison term established in decisions to group sentences imposed in Spain together and/or to set au upper limit on them ( see, mutatis mutandis, Del Río Prada, cited above, § 129). 142. Accordingly, the Court considers that in the present case there has been no violation of Article 5 § 1 of the Convention. APPLICATION OF ARTICLE 41 OF THE CONVENTION 143. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 144. The applicants claimed compensation for the non-pecuniary damage which they had sustained solely in connection with the alleged violation of Article 7 and Article 5 § 1. Their pecuniary claims did not concern the complaints under Article 6 § 1 of the Convention. The applicants also requested their release from prison at the earliest possible date. 145. Having regard to the fact that it has found a violation of Article 6 § 1 but no violation of Article 7 and Article 5 § 1 of the Convention, the Court holds that there is no need to make any award in respect of non-pecuniary damage or to indicate individual measures to the respondent State as requested by the applicants ( see, to converse effect, Del Río Prada, cited above, §§ 137-139). B. Costs and expenses 146. The first applicant claimed 2, 662 euros (EUR) in respect of costs and expenses incurred before the domestic courts and EUR 3, 138. 71 in respect of those incurred before the Court. He requested that the sums relating to unpaid invoices be paid directly to his representative. The second and third applicants claimed EUR 2, 662 each in respect of costs and expenses incurred before the domestic courts and EUR 1,815 each in respect of those incurred before the Court. They requested that the awards under this head be paid directly into their representative ’ s bank account 147. The Government submitted that under the Court ’ s case-law, claims in respect of costs appertaining to domestic proceedings should be rejected. As regards the award in respect of the costs incurred before the Court, they left that matter to the latter ’ s discretion. 148. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. The Court considers that in the present case the applicants are not entitled to the reimbursement of all the costs and expenses incurred for their defence before the Spanish courts, and that they are only entitled to the reimbursement of the costs required to complain of the alleged violation found by the Court. In the instant case the Court found a violation of Article 6 § 1 of the Convention on account of the inadmissibility decisions given on the amparo appeals by the highest national court, that is to say the Constitutional Court, with whose decisions no further effective remedies lie ( see, for example, Ferré Gisbert, cited above, §§ 38 ‑ 39 and 49). The Court therefore considers that the costs appertaining to the domestic proceedings cannot be deemed to have been incurred with a view to preventing or denouncing the violation which it has found, and therefore rejects the corresponding claims. 149. As regards the costs and expenses incurred before the Court, having regard to the documents at its disposal and to the fact that it has only found one violation of the Convention, the Court considers it reasonable to award the first applicant the sum of EUR 2,000 and the second and third applicants EUR 1,000 each. Those sums are to be paid directly into the bank accounts of the applicants ’ representatives ( see, mutatis mutandis, Khlaifia and Others v. Italy [GC], no. 16483/12, § 288, ECHR 2016). C. Default interest 150. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court observed in particular that the decisions of the Spanish Supreme Court had not changed the maximum length of the total term of imprisonment, which had always been set at thirty years. The discrepancies between the various courts concerned as to the possibility of combining sentences had lasted for only about ten months, until the adoption by the Supreme Court of its leading judgment, which had settled the matter in the negative. The solutions adopted in the applicants’ cases had merely followed the judgment of the plenary formation of the Supreme Court. There had thus been no violation of Article 7 (no punishment without law) of the Convention. |
985 | Cases in which the Court has found a violation of Article 18 in conjunction with Article 5 of the Convention | II. RELEVANT DOMESTIC LAW AND PRACTICE 39. A detailed description of the relevant provisions of the domestic law concerning the criminal proceedings instituted against the applicant, pre ‑ trial detention and proceedings concerning the application and review of the preventive measure of detention pending trial, and the relevant extracts from the decisions of the Plenum of the Supreme Court can be found in the Court ’ s judgment in Rasul Jafarov ( cited above, §§ 50-76 and §§ 79-80 ). III. RELEVANT INTERNATIONAL DOCUMENTS 40. The relevant extracts from the Opinions adopted by the European Commission for Democracy Through Law (Venice Commission) with respect to Azerbaijan can be found in the Court ’ s judgment in Rasul Jafarov (cited above, §§ 81-8 2 ). THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 §§ 1 AND 3 OF THE CONVENTION 41. Relying on Article 5 §§ 1 (c) and 3 of the Convention, the applicant complained that he had been arrested and detained in the absence of any “reasonable suspicion” that he had committed a criminal offence. He also complained that the domestic courts had failed to provide relevant and sufficient reasons justifying the necessity of his continued detention. Article 5 §§ 1 (c) and 3 of the Convention reads: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ... 3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” A. Admissibility 42. The Court notes that this part of the application is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions (a) The applicant 43. The applicant submitted that there was no “reasonable suspicion” that he had committed a criminal offence. He noted that although in their observations the Government had referred to “the expert opinions and testimonies” as evidence proving the existence of a “reasonable suspicion”, neither the prosecuting authorities nor the domestic courts had referred to such evidence when they ordered the applicant ’ s arrest and detention. In this connection, he claimed that he had been arrested and charged because of the Centre ’ s reports on election irregularities in Azerbaijan. 44. The applicant further argued that his detention had not been in compliance with the requirements of Article 5 § 3 of the Convention, because the domestic courts had failed to provide “relevant and sufficient” reasons justifying his pre-trial detention, and had also failed to properly consider whether alternative preventive measures could have been applied. (b) The Government 45. The Government submitted that the applicant had been arrested on the basis of the investigative measures taken following the institution of criminal proceedings. The investigation was able to collect initial evidence proving the applicant ’ s participation in the misappropriation of a large amount of money and tax evasion in the amount of AZN 19,000 (approximately EUR 1 7,85 0 at the material time). That material and information had been further corroborated by the expert opinions and testimonies of other defendants in the criminal case, which had been sufficient to justify the applicant ’ s arrest under domestic law. In this connection, the Government referred to documents, dated 16 December 2013 and 19 March 2014, indicating that various expert opinions had been passed on to the applicant by the investigation. Accordingly, the Government argued that there had been sufficiently specific information to justify a reasonable suspicion that the applicant had committed an offence. 46. The Government also argued that the courts had given relevant and sufficient reasons for their decisions establishing that there had been a risk that, if not detained, the applicant would abscond from the investigation or hinder the proper conduct of the proceedings. (c) The third parties 47. Third-party comments submitted by the Council of Europe Commissioner for Human Rights, as well as by the Helsinki Foundation for Human Rights, the Human Rights House Foundation and Freedom Now concerned the situation of human rights defenders in Azerbaijan and the difficulties faced by NGOs as a result of the recent legislative amendments. A detailed description of the above-mentioned comments can be found in the Court ’ s judgment in Rasul Jafarov (cited above, §§ 99-113). 2. The Court ’ s assessment (a) General principles 48. Article 5 § 1 of the Convention contains an exhaustive list of permissible grounds for deprivation of liberty, which must be interpreted strictly. A person may be detained under Article 5 § 1 (c) only in the context of criminal proceedings, for the purpose of bringing him before the competent legal authority on “reasonable suspicion” of “having committed an offence” (see Jėčius v. Lithuania, no. 34578/97, § 50, ECHR 2000 ‑ IX). 49. The Court reiterates that in order for an arrest on reasonable suspicion to be justified under Article 5 § 1 (c), it is not necessary for the police to have obtained sufficient evidence to bring charges, either at the point of arrest or while the applicant is in custody (see Brogan and Others v. the United Kingdom, 29 November 1988, § 53, Series A no. 145 ‑ B). Nor is it necessary that the person detained should ultimately have been charged or brought before a court. The object of detention for questioning is to further a criminal investigation by confirming or dispelling the suspicions which provided the grounds for detention. Thus, facts which raise a suspicion need not be of the same level as those necessary to justify a conviction or even the bringing of a charge, which comes at the next stage of the process of the criminal investigation (see Murray v. the United Kingdom, 28 October 1994, § 55, Series A no. 300 ‑ A). 50. However, the requirement that the suspicion must be based on reasonable grounds forms an essential part of the safeguard against arbitrary arrest and detention. The fact that a suspicion is held in good faith is insufficient. The words “reasonable suspicion” mean the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence (see Gusinskiy v. Russia, no. 70276/01, § 53, ECHR 2004 ‑ IV). What may be regarded as “reasonable” will depend upon all the circumstances (see Fox, Campbell and Hartley v. the United Kingdom, 30 August 1990, § 32, Series A no. 182). The length of the deprivation of liberty may also be material to the level of suspicion required (see Murray, cited above, § 56). 51. When assessing the “reasonableness” of the suspicion, the Court must be in a position to ascertain whether the essence of the safeguard afforded by Article 5 § 1 (c) has been secured. Consequently, the respondent Government have to furnish at least some facts or information capable of satisfying the Court that the arrested person was reasonably suspected of having committed the alleged offence (see Fox, Campbell and Hartley, cited above, § 34 in fine ). 52. Apart from its factual aspect, which is most often in issue, the existence of such a suspicion additionally requires that the facts relied on can reasonably be considered criminal behaviour under domestic law. Thus, clearly there could not be a “reasonable suspicion” if the acts held against a detained person did not constitute an offence at the time they were committed (see Włoch v. Poland, no. 27785/95, §§ 108-09, ECHR 2000 ‑ XI). 53. The Court reiterates that the persistence of reasonable suspicion that the person arrested has committed an offence is a prerequisite for the lawfulness of the continued detention (see, among many other authorities, Stögmüller v. Austria, 10 November 1969, p. 40, § 4, Series A no. 9, and McKay v. the United Kingdom [GC], no. 543/03, § 44, ECHR 2006 ‑ X). Accordingly, while reasonable suspicion must exist at the time of the arrest and initial detention, it must also be shown, in cases of prolonged detention, that the suspicion persisted and remained “reasonable” throughout the detention (see Ilgar Mammadov v. Azerbaijan, no. 15172/13, § 90, 22 May 2014). (b) Application of those principles to the present case 54. The Court observes that the applicant in the present case complained of the lack of “reasonable” suspicion against him throughout the entire period of his pre-trial detention, including both the initial period following his arrest and the subsequent periods when his remand in custody was authorised and extended by court orders. In this connection, the Court notes at the outset that it has to take into account all the relevant circumstances in order to be satisfied that any objective information existed showing that the suspicion against the applicant was “reasonable”. The Court thus considers it necessary to take into account the general context of the facts of this particular case. Having assessed the submissions by the third parties ( see reference in paragraph 47 above ) and the opinions of the Venice Commission (see reference in paragraph 4 0 above), the Court notes that in recent years the legislative environment regarding the operation of non ‑ governmental organisations, including the regulation of matters relating to their State registration, their funding and their reporting requirements, has, according to the submissions of the third parties, deteriorated. A number of amendments to various legislative instruments introduced additional registration and reporting procedures as well as heavy penalties. There have been long-standing problems with the State registration of NGOs in Azerbaijan (in this connection, see also Ramazanova and Others v. Azerbaijan, no. 44363/02, 1 February 2007; Nasibova v. Azerbaijan, no. 4307/04, 18 October 2007; Ismayilov v. Azerbaijan, no. 4439/04, 17 January 2008; and Aliyev and Others v. Azerbaijan, no. 28736/05, 18 December 2008, in which cases the Court found violations of Article 11 of the Convention). Despite the reforms to the registration procedures regulated by the Law on State Registration, the Court has continued to receive new applications concerning allegedly arbitrary delays in State registration of NGOs. Indeed, two of those applications were lodged by NGOs founded by the applicant, and have been communicated to the respondent Government (see applications nos. 64733/09 and 70981/11 ). Furthermore, the above-mentioned sources were of the view that the onerous new regulations, coupled with the reportedly intransigent and arbitrary manner in which they were being applied by the authorities, made it increasingly difficult for NGOs to operate. While the Court is not called upon to give a judicial assessment of the general situation outlined above in the context of the present complaint, it nevertheless considers that this background information is relevant to the present case and calls for particularly close scrutiny of the facts giving rise to the charges brought against the applicant (see Rasul Jafarov, cited above, § 120). 55. The Court further notes that the circumstances of the present case and the complaints raised under Article 5 of the Convention by the applicant are similar to those already examined by the Court in the case Rasul Jafarov v. Azerbaijan. In particular, the applicant and Rasul Jafarov were charged with the same criminal offences and there were a lot of similarities in the wording of the prosecuting authorities ’ decisions describing the acts attributed to them (compare paragraph 1 4 above and Rasul Jafarov, cited above, § 16). 56. The Court observes that the description of the three original charges brought against the applicant on 16 December 2013 lacked the level of coherence, order and clarity that could be expected of a document of this nature. In particular, the description consisted of a single sentence spanning about one page of printed text. It can be discerned from that description that the applicant was accused of having received since May 2013 ‒ with the complicity of S.B. and E.M., through the Public Union, which was a registered NGO ‒ a number of grants allocated to the Centre, which was not State - registered. He was also accused of generating profit, “by paying money to himself and other people involved in the projects in the guise of salaries and service fees” (see paragraph 14 above) despite the fact that the Centre, which was not registered, did not have legal entity status ( see reference in paragraph 47 above). He was further accused under Article 219 of the Tax Code of avoiding payment of taxes in the amount of AZN 19,535 (approximately EUR 18,250 at the material time), thus causing “significant damage to State interests protected by law, entailing grave consequences”. 57. It can be deduced from the above that all the misconduct attributed to the applicant essentially stemmed from the fact that he had received the grants awarded to his non-State-registered NGO (the Centre) through a different registered NGO (the Public Union ). No other information or evidence supporting the suspicion was shown to exist, either at the time he was accused or throughout the entire period of his pre-trial detention. For the reasons set out below, the Court considers that the above facts relied on by the prosecuting authorities cannot be considered sufficient to satisfy an objective observer that the applicant might have committed the offences he was charged with. 58. The Court notes that the domestic legislation did not prohibit the functioning of non-commercial organisations ( such as NGOs), as distinct from commercial organisations, in the absence of State registration (see reference in paragraph 39 above). This has previously been confirmed by the Government in their submissions before the Court in other cases (see Ramazanova and Others, cited above, § 48; Nasibova, cited above, § 24; Ismayilov, cited above, § 44; and Aliyev and Others, cited above, § 28). However, in practice, NGOs faced difficulties in functioning properly, as they could not, for instance, open bank accounts or receive funding as a legal entity. It was specifically owing to these difficulties that the applicant ’ s organisation conducted the impugned activities in partnership with the Public Union, which was a registered NGO (see reference in paragraph 4 7 above). 59. In this connection, the Court notes that, although in the present case the criminal charges against the applicant were based on the fact that he had received the grants through a registered NGO, the Court does not see how such an action could have given rise to a reasonable suspicion that he had committed a criminal offence. Neither the domestic authorities nor the Government were able to refer to any provision of the Criminal Code which specifically criminalises the action of receiving grants through a different, State- registered NGO rather than an NGO operating without State registration. Moreover, under domestic law the breach of the legislation on giving and receiving grants constituted an administrative offence punishable by a fine and not a criminal offence (see reference in paragraph 39 above). 60. In any event, the Court observes that the prosecuting authority claimed that the alleged action of receiving grants by the applicant through a registered NGO should result in its categorisation as an illegal commercial (“entrepreneurial”) activity. However, the Court notes that the domestic law provided clear definitions of commercial and non-commercial activities, the differentiating factor being whether or not the purpose of the activities was the generation of profit. Non-commercial activity was not subject to profit tax or value ‑ added tax (see reference in paragraph 39 above). 61. The Court also observes that it was undisputed that the grants in question were awarded for the purposes of financing the monitoring of the presidential election of October 2013. The authorities never claimed that the actual purposes for which the grants had been awarded were illegal, or that any of the actual activities conducted by the applicant using grant funds had been illegal. Therefore, the money was received on the basis of grant agreements indicating the specific non-commercial purposes on which the funds were to be spent, as required by the Law on Grants (see reference in paragraph 39 above). Moreover, the donors had never claimed that the money had been spent otherwise than as designated in the relevant agreements. These circumstances favour the presumption that the applicant was engaging in non-commercial activities which were not prohibited by law and were not aimed at generating profit. 62. The Court further notes that the prosecuting authorities never demonstrated the existence of any information or evidence showing that the applicant might have used the money for generating profit or for purposes other than those indicated in the grant agreements, or that the purposes indicated in the grant agreements were both commercial and illegal. Likewise, the Government failed to demonstrate that any other witness statements, documents or other evidence or information existed which could serve as a basis for the suspicion that the applicant had engaged in criminal activities. In this connection, the Court observes that, although the Government referred to documents, dated 16 December 2013 and 19 March 2014, indicating that various expert opinions had been passed on to the applicant by the investigation, they failed to provide the Court with these expert opinions. In any event, it has not been demonstrated that any such evidence was ever presented by the prosecuting authorities to the domestic courts ordering and extending the applicant ’ s pre-trial detention (compare Ilgar Mammadov, cited above, §§ 96-99; Yagublu v. Azerbaijan, no. 31709/13, § 60, 5 November 2015; and Rasul Jafarov, cited above, § 129 ). In this regard, the Court also takes note of the decision of the Plenum of the Supreme Court of 3 November 2009. That decision required domestic courts to subject prosecuting authorities ’ applications for remand in custody to close scrutiny and to verify the existence of a suspicion against the accused by making use of their power under Article 447.5 of the CCrP to request and review the “initial evidence” in the prosecution ’ s possession (see reference in paragraph 39 above). However, in the present case, the above directives were not taken into account (compare Ilgar Mammadov, cited above, § 97, and Yagublu, cited above, § 61 ). 63. In such circumstances, the Court finds that the applicant could not have been reasonably suspected of having committed the criminal offence of “illegal entrepreneurship” under Article 192.2.2 of the Criminal Code, because there were no facts, information or evidence showing that he had engaged in commercial activity or committed the offence of “tax evasion” under Article 213 of the Criminal Code, as in the absence of such commercial activity there could be no taxable profit under the simplified regime. Furthermore, the above-mentioned facts were not sufficient to give rise to a suspicion that the applicant had sought to “obtain unlawful advantage for himself or for third parties”, which was one of the constituent elements of the criminal offence of “abuse of power” under Article 308 of the Criminal Code (compare, mutatis mutandis, Lukanov v. Bulgaria, 20 March 1997, § 44, Reports of Judgments and Decisions 1997 ‑ II). 64. As for the additional charges under Articles 179.3.2 and 313 of the Criminal Code brought against the applicant on 19 March 2014, the Court notes that they were brought after the latest domestic court order of 6 March 2014 extending the applicant ’ s pre-trial detention. All previous decisions ordering and extending the applicant ’ s pre-trial detention had been based solely on the original charges under Articles 192.2.2, 213 .1 and 308 .2 of the Criminal Code. The new charges were therefore of no significance as regards assessing the reasonableness of the suspicion underpinning the applicant ’ s detention during the period falling within the scope of the present case. The Government have not argued otherwise (compare Rasul Jafarov, cited above, § 131). 65. The Court is mindful of the fact that the applicant ’ s case was taken to trial. That, however, does not affect the Court ’ s findings in connection with the present complaint, where it is called upon to consider whether the deprivation of the applicant ’ s liberty during the pre ‑ trial period was justified on the basis of the information or facts available at the relevant time. In this respect, having regard to the above analysis, the Court finds that the material put before it does not meet the minimum standard set by Article 5 § 1 (c) of the Convention for the reasonableness of a suspicion required for an individual ’ s arrest and continued detention. Accordingly, during the period the Court is considering in the present case, the applicant was deprived of his liberty in the absence of a “reasonable suspicion” of his having committed a criminal offence. 66. Accordingly, there has been a violation of Article 5 § 1 of the Convention. 67. Having regard to the above finding, the Court does not consider it necessary to examine separately under Article 5 § 3 of the Convention whether the domestic authorities provided relevant and sufficient reasons justifying the necessity of the applicant ’ s continued pre-trial detention (see Ilgar Mammadov, cited above, § 102; Yagublu, cited above, § 64; and Rasul Jafarov, cited above, § 135 ). II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION 68. The applicant complained that the domestic courts had not properly assessed the arguments he had put forward in favour of his release. He relied on Article 5 § 4 of the Convention, which provides: “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” A. Admissibility 69. The Court considers that this complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. No other ground for declaring it inadmissible has been established. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions 70. The applicant reiterated his complaint and maintained that the courts had failed to respond to any of the relevant arguments against detention that he had repeatedly raised before them. 71. The Government submitted that the applicant and his lawyers had been heard by the domestic judges and had been able to put questions to the prosecuting authority during the court hearings. Nothing in the case file indicated that the proceedings had not been adversarial or had been otherwise unfair. Even if the applicant ’ s arguments had not been addressed in a detailed manner in the judicial decisions, the material in the case file, including records of court hearings, showed that the judges had heard the applicant ’ s arguments and had taken the decisions they considered to be the most appropriate in the circumstances. 2. The Court ’ s assessment 72. The Court reiterates that Article 5 § 4 of the Convention entitles arrested or detained persons to a review of the procedural and substantive conditions which are essential for the “lawfulness” – in Convention terms – of the deprivation of their liberty. This means that the competent court has to consider not only compliance with the procedural requirements of domestic law, but also the reasonableness of the suspicion underpinning the arrest and the legitimacy of the purpose pursued by the arrest and the ensuing detention (see Brogan and Others, cited above, § 65, and Butkevičius v. Lithuania, no. 48297/99, § 43, ECHR 2002 ‑ II (extracts)). 73. The requirement of procedural fairness under Article 5 § 4 does not impose a uniform, unvarying standard to be applied irrespective of the context, facts and circumstances. Although it is not always necessary that an Article 5 § 4 procedure be attended by the same guarantees as those required under Article 6 for criminal or civil litigation, it must have a judicial character and provide guarantees appropriate to the type of deprivation of liberty in question. Thus, the proceedings must be adversarial and must always ensure “equality of arms” between the parties (see A. and Others v. the United Kingdom [GC], no. 3455/05, § 203-04, ECHR 2009, with further references). Furthermore, while Article 5 § 4 of the Convention does not impose an obligation to address every argument contained in a detainee ’ s submissions, the judge considering submissions against pre-trial detention must take into account concrete facts which are referred to by the detainee and are capable of casting doubt on the existence of those conditions essential for the “lawfulness” – for Convention purposes – of the deprivation of liberty (see Nikolova v. Bulgaria [GC], no. 31195/96, § 61, ECHR 1999 ‑ II). 74. Article 5 § 4 guarantees no right, as such, to an appeal against a court decision ordering or extending detention, and does not compel States to set up a second level of jurisdiction to consider applications for release, but the intervention of a judicial body of at least one level of jurisdiction must comply with the guarantees of Article 5 § 4. Where domestic law provides for a system of appeal, the appellate body must also comply with Article 5 § 4 (see Farhad Aliyev v. Azerbaijan, no. 37138/06, § 204, 9 November 2010 ). In the present case, the issues regarding the ordering and extending of the applicant ’ s detention and his applications for release from detention were decided on each occasion by courts at two levels of jurisdiction, namely the Nasimi District Court as the first-instance court and the Baku Court of Appeal as the appellate court. 75. As the Court has observed above, the domestic courts in the present case consistently failed to verify the reasonableness of the suspicion underpinning the applicant ’ s arrest (see paragraph 6 2 above). In their decisions, the domestic courts limited themselves to copying the prosecution ’ s written submissions and using short, vague and stereotyped formulae for rejecting the applicant ’ s complaints as unsubstantiated (see paragraphs 15 - 16, 18, 23 and 25 above). In essence, the domestic courts limited their role to one of mere automatic endorsement of the prosecution ’ s applications, and they cannot be considered to have conducted a genuine review of the “lawfulness” of the applicant ’ s detention. That is contrary not only to the requirements of Article 5 § 4, but also to those of the domestic law as interpreted and clarified by the Plenum of the Supreme Court (see reference in paragraph 39 above). 76. The foregoing considerations are sufficient to enable the Court to conclude that the applicant was not afforded proper judicial review of the lawfulness of his detention. Accordingly, there has been a violation of Article 5 § 4 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 18 OF THE CONVENTION, TAKEN IN CONJUNCTION WITH ARTICLE 5 OF THE CONVENTION 77. The applicant complained under Article 18 of the Convention that his Convention rights had been restricted for purposes other than those prescribed in the Convention. Article 18 provides: “The restrictions permitted under [the] Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.” A. Admissibility 1. The parties ’ submissions 78. In their further observations concerning the complaint under Article 18 of the Convention, dated 16 January 2017, made in reply to those of the applicant, the Government submitted that the applicant had not intended to raise a complaint under Article 18 of the Convention before the Court. In that connection, they noted that the applicant had not raised such a complaint in his initial application lodged with the Court or in his observations submitted in reply to those of the Government following the communication of his application. 79. In the same observations, the Government also submitted that the applicant had failed to exhaust domestic remedies because he had failed to bring the complaint made to the Court before the domestic authorities. In particular, they pointed out that the applicant had never relied on Article 18 of the Convention or similar legal arguments in the proceedings before the domestic courts when he challenged his pre-trial detention. 2. The Court ’ s assessment 80. As regards the Government ’ s argument that the applicant did not raise a complaint under Article 18 of the Convention in his application lodged with the Court or in his observations submitted in reply to those of the Government following the communication of his application, the Court notes that in his application lodged with the Court the applicant referred to the political pressure on him because of his electoral monitoring activities. He also explicitly indicated in his observations that his arrest was politically motivated and related to his election monitoring activities. In that connection, the Court notes that it has already found that similar submissions made by an applicant are sufficient reasons to examine the issue of the applicant ’ s detention from the viewpoint of Article 18 (see Lutsenko v. Ukraine, no. 6492/11, § 104, 3 July 2012). Therefore, the Court concludes that in the present case the applicant raised in substance the complaint that his arrest and detention had had ulterior motives. 81. Furthermore, under Rule 55 of the Court ’ s Rules, any plea of inadmissibility must, in so far as its character and the circumstances permit, be raised by the respondent Contracting Party in its written or oral observations on the admissibility of the application. Where an objection of failure to exhaust domestic remedies is raised out of time for the purposes of Rule 55, an estoppel arises and the objection must accordingly be dismissed (see Stanev v. Bulgaria [GC], no. 36760/06, § 194, ECHR 2012). 82. In the present case, on the basis of the Chamber ’ s decision of 14 June 2016 (see paragraph 5 above), on 22 June 2016 the Government were invited to submit by 22 September 2016 their written observations concerning the complaint under Article 18 of the Convention taken in conjunction with Article 5. As the Court did not receive any submission from the Government within the time-limit indicated in the letter of 22 June 2016, the applicant was invited to submit his observations. On 30 November 2016 the applicant submitted his observations which were forwarded to the Government. In their further observations dated 16 January 2017, made in reply to those of the applicant, the Government for the first time adverted to an objection of non-exhaustion of domestic remedies (see paragraph 79 above). 83. However, the Government did not provide any explanation for that delay and the Court finds no exceptional circumstance capable of exempting them from their obligation to raise an objection to admissibility in a timely manner. It follows that the Government are estopped from pleading non ‑ exhaustion of domestic remedies (see Khlaifia and Others v. Italy [GC], no. 16483/12, §§ 52-53, ECHR 2016 (extracts), and Boris Kostadinov v. Bulgaria, no. 61701/11, § 44, 21 January 2016). 84. The Court further considers that this complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. No other ground for declaring it inadmissible has been established. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions (a) The applicant 85. The applicant maintained that his Convention rights had been restricted for purposes other than those prescribed in the Convention. In particular, his arrest and detention had had the purpose of punishing him as a government critic, silencing him as an election observer, NGO activist and human rights defender, paralysing civil society in the country and destroying the election monitoring network that he had established. In that connection, he submitted that he was the Chairman and one of the co ‑ founders of the main non-governmental organisation specialising in the monitoring of elections in the country which regularly criticised the government for election irregularities. Moreover, various international organisations and instances often relied on the results of the election monitoring conducted by the Centre. 86. The applicant also drew the Court ’ s attention to the fact that criminal proceedings were instituted in connection with alleged irregularities in the financial activities of the Centre only a few days after the issue of the the Centre ’ s preliminary report concerning the results of the last presidential elections. 87. Lastly, the applicant argued that his detention and prosecution could not be viewed in isolation. It was part of a targeted repressive campaign against human rights defenders and NGO activists, who were arrested and detained on the basis of similar fabricated accusations. (b) The Government 88. The Government argued that, as in the cases of Khodorkovskiy v. Russia (no. 5829/04, 31 May 2011) and Khodorkovskiy and Lebedev v. Russia (nos. 11082/06 and 13772/05, 25 July 2013), the applicant ’ s allegations in the present case were too wide and far-reaching. He was not complaining of an isolated incident, but was trying to demonstrate that the whole legal machinery of the respondent State had been misused ab initio, and that from beginning to end the authorities had been acting in bad faith and with blatant disregard for the Convention. In essence, the applicant was trying to persuade the Court that everything in their case was contrary to the Convention, and that the criminal proceedings against him were therefore invalid. That allegation was a serious one, because it assailed the general presumption of good faith on the part of the public authorities and required particularly weighty evidence in support. 89. However, according to the Government, none of the accusations against the applicant were political. He had not been an opposition leader or a public official. The acts which had been imputed to him did not relate to his participation in political life, real or imaginary – he had been prosecuted for a common criminal offence. 90. The Government also submitted that the Court may be prepared to admit that some political groups or government officials had their own reasons for the applicant ’ s prosecution, but it is not sufficient to conclude that the applicant should not have been convicted otherwise. Elements of “improper motivation” which may exist in the present case do not make the applicant ’ s prosecution illegitimate “from beginning to the end”: the fact remains that the accusations against the applicant were serious, that the case against him had a “healthy core”, and that even if there was a mixed intent behind his prosecution, this did not grant him immunity from answering the accusations. 91. Lastly, the Government pointed out that the allegation that the applicant had been arrested because of his public statement following the last presidential elections is nothing but speculation. In that connection, they submitted that he had not been arrested immediately after the elections, but following a thorough investigation by the relevant authorities. Accordingly, the restrictions imposed by the State in the present case had not been applied for any purpose other than one envisaged by that provision, and strictly for the proper investigation of serious criminal offences allegedly committed by the applicants. (c) The third parties 92. Submissions by the third parties, which pertain to both the complaints under Articles 5 and 18 of the Convention, can be found in paragraph 47 above. 2. The Court ’ s assessment (a) General principles 93. The Court notes that the general principles concerning interpretation and application of Article 18 of the Convention have recently ‑ after the judgments adopted in the cases of Khodorkovskiy v. Russia (cited above) and Khodorkovskiy and Lebedev v. Russia (cited above) to which the Government referred (see paragraph 88 above) ‑ been set out by the Grand Chamber in its judgment in Merabishvili v. Georgia ([GC], no. 72508/13, 28 November 2017) : “287. In a similar way to Article 14, Article 18 of the Convention has no independent existence ...; it can only be applied in conjunction with an Article of the Convention or the Protocols thereto which sets out or qualifies the rights and freedoms that the High Contracting Parties have undertaken to secure to those under their jurisdiction ... This rule derives both from its wording, which complements that of clauses such as, for example, the second sentence of Article 5 § 1 and the second paragraphs of Articles 8 to 11, which permit restrictions to those rights and freedoms, and from its place in the Convention at the end of Section I, which contains the Articles that define and qualify those rights and freedoms. 288. Article 18 does not, however, serve merely to clarify the scope of those restriction clauses. It also expressly prohibits the High Contracting Parties from restricting the rights and freedoms enshrined in the Convention for purposes not prescribed by the Convention itself, and to this extent it is autonomous ... Therefore, as is also the position in regard to Article 14, there can be a breach of Article 18 even if there is no breach of the Article in conjunction with which it applies ... 289. Lastly, being aware – as already highlighted – of a certain inconsistency in its previous judgments regarding the use of the terms “independent” and “autonomous” in these contexts, the Court seizes the opportunity offered by the present case to align the language used in relation to Article 18 to that used in relation to Article 14, as has been done above. 290. It further follows from the terms of Article 18 that a breach can only arise if the right or freedom at issue is subject to restrictions permitted under the Convention ... 291. The mere fact that a restriction of a Convention right or freedom does not meet all the requirements of the clause that permits it does not necessarily raise an issue under Article 18. Separate examination of a complaint under that Article is only warranted if the claim that a restriction has been applied for a purpose not prescribed by the Convention appears to be a fundamental aspect of the case ... ” 94. The Grand Chamber further found that a right or freedom is sometimes restricted solely for a purpose which is not prescribed by the Convention. But it is equally possible that a restriction is applied both for an ulterior purpose and a purpose prescribed by the Convention; in other words, that it pursues a plurality of purposes (see Merabishvili, cited above, § 292). In these circumstances, a restriction can be compatible with the substantive Convention provision which authorises it because it pursues an aim permissible under that provision, but still infringe Article 18 because it was chiefly meant for another purpose that is not prescribed by the Convention; in other words, if that other purpose was predominant. Conversely, if the prescribed purpose was the main one, the restriction does not run counter to Article 18 even if it also pursues another purpose (see Merabishvili, cited above, § 305). Which purpose is predominant in a given case depends on all the circumstances. In assessing that point, the Court will have regard to the nature and degree of reprehensibility of the alleged ulterior purpose, and bear in mind that the Convention was designed to maintain and promote the ideals and values of a democratic society governed by the rule of law (see Merabishvili, cited above, § 307). 95. In the latter judgment, after having addressed the question of proof in relation to complaints under Article 18 of the Convention (see Merabishvili, cited above, §§ 310-15), the Court found the following concerning the standard of proof: “ 316. There is therefore no reason for the Court to restrict itself to direct proof in relation to complaints under Article 18 of the Convention or to apply a special standard of proof to such allegations. 317. It must however be emphasised that circumstantial evidence in this context means information about the primary facts, or contextual facts or sequences of events which can form the basis for inferences about the primary facts ... Reports or statements by international observers, non-governmental organisations or the media, or the decisions of other national or international courts are often taken into account to, in particular, shed light on the facts, or to corroborate findings made by the Court .. .” (b) Application of those principles to the present case 96. The Court considers it necessary to note at the outset that it has already found that the applicant ’ s arrest and pre-trial detention were not carried out for a purpose prescribed under Article 5 § 1 (c) of the Convention (see paragraphs 56 - 66 above), as the charges against him were not based on a “reasonable suspicion” within the meaning of Article 5 § 1 (c) of the Convention (contrast Merabishvili, cited above, § 318, Khodorkovskiy, cited above, § 258, and compare Lutsenko, cited above, § 108; Ilgar Mammadov, cited above, § 141; and Rasul Jafarov, cited above, § 156 ). Therefore, the present case should be distinguished from the cases with plurality of purposes in which a restriction is applied both for an ulterior purpose and a purpose prescribed by the Convention (see Merabishvili, cited above, § § 318 -54 ). 97. However, the mere fact that the restriction of the applicant ’ s right to liberty did not pursue a purpose prescribed by Article 5 § 1 (c) is not in itself a sufficient basis to conduct a separate examination of a complaint under Article 18 unless the claim that a restriction has been applied for a purpose not prescribed by the Convention appears to be a fundamental aspect of the case. Therefore, it remains to be seen whether there is proof that the authorities ’ actions were actually driven by an ulterior purpose, namely for silencing and punishing the applicant as a civil society activist for his activities in the area of electoral monitoring. 98. In that connection, the Court reiterates that there is no reason for it to restrict itself to direct proof in relation to complaints under Article 18 of the Convention or to apply a special standard of proof to such allegations (see Merabishvili, cited above, § 316), as depending on the circumstances of the case, an ulterior purpose cannot always be proven by pointing to a particularly inculpatory piece of evidence which clearly reveals an actual reason (for example, a written document, as in the case of Gusinskiy ) or a specific isolated incident. In the present case, as in the cases of Ilgar Mammadov (cited above) and Rasul Jafarov (cited above), the Court considers that it can be established to a sufficient degree that proof of an ulterior purpose derives from a juxtaposition of the lack of suspicion with contextual factors. 99. Firstly, the general circumstances to which it has had regard in connection with its assessment of the complaint under Article 5 § 1 (see paragraph 54 above) are equally relevant in the context of the present complaint. In the Court ’ s view, the general context of the increasingly harsh and restrictive legislative regulation of NGO activity and funding cannot be simply ignored in a case like the present one, where such a situation has led to an NGO activist being prosecuted for an alleged failure to comply with legal formalities of an administrative nature while carrying out his work. 100. Secondly, the Court takes note of the numerous statements by high ‑ ranking officials and articles published in the pro-government media, where local NGOs and their leaders were consistently accused of being a “fifth column” for foreign interests, national traitors, foreign agents, and so on (see reference in paragraph 3 8 above). They were harshly criticised for contributing to a negative image of the country abroad by reporting on the human rights situation in the country. What was held against them in these statements was not simply an alleged breach of domestic legislation on NGOs and grants, but their activity itself. 101. Thirdly, the applicant ’ s situation cannot be viewed in isolation. Several notable human rights activists who have cooperated with international organisations for the protection of human rights, including, most notably, the Council of Europe, were similarly arrested and charged with serious criminal offences entailing heavy imprisonment sentences. These facts, taken together with the above-mentioned statements by the country ’ s officials, support the applicant ’ s and the third parties ’ argument that his arrest and detention were part of a larger campaign to crack down on human rights defenders in Azerbaijan, which had intensified over the summer of 2014 (see reference in paragraph 47 above). 102. The Court also attaches weight to the timing of the institution of criminal proceedings in connection with alleged irregularities in the financial activities of the Centre, only a few days after the issue of the Centre ’ s preliminary report concerning the results of the last presidential elections. In that connection, it cannot accept the Government ’ s submission that there had been no link between the applicant ’ s electoral monitoring activity and his arrest which had been ordered following a thorough investigation by the relevant authorities. The Court has already found that there is nothing in the case file to show that the prosecution authorities had any objective information giving rise to a bona fide suspicion against the applicant at the time when they instituted criminal proceedings against him or arrested him. Moreover, the Court cannot overlook the fact that the charges against the applicant specifically referred to the grants received by him since May 2013 (see paragraph 14 above), which were awarded for the purposes of financing the monitoring of the presidential election of October 2013. The Court has also found that there was no evidence and it was not claimed by the donors that the grants in question had been used for any other purpose than the monitoring of the presidential election of October 2013 (see paragraph 61 above). 103. Nor can the Court accept the Government ’ s assertion that the accusations against the applicant could not be politically motivated because he had not been an opposition leader or a public official. It is undisputed that the applicant was a well-known civil society activist and the Chairman of the main non-governmental organisation specialising in the monitoring of elections in the country. 104. The totality of the above -mentioned facts and circumstances indicates that the actual purpose of the impugned measures was to silence and punish the applicant as a civil society activist for his activities in the area of electoral monitoring. In the light of these considerations, the Court finds that the restriction of the applicant ’ s liberty was imposed for purposes other than bringing him before a competent legal authority on reasonable suspicion of having committed an offence, as prescribed by Article 5 § 1 (c) of the Convention. 105. The Court considers this a sufficient basis for finding a violation of Article 18 of the Convention, taken in conjunction with Article 5. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 106. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 107. The applicant claimed 20,000 euros (EUR) in compensation for non-pecuniary damage. 108. The Government submitted that the amount claimed by the applicant was unsubstantiated and excessive. They also submitted that EUR 13,000 would constitute reasonable compensation for the non ‑ pecuniary damage allegedly sustained by the applicant. 109. The Court considers that the applicant has suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation, and that compensation should thus be awarded. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant the sum of EUR 20,000 under this head, plus any tax that may be chargeable on this amount. B. Costs and expenses 110. The applicant claimed EUR 5, 45 0 for costs and expenses incurred in the domestic proceedings and before the Court. In support of his claim, the applicant submitted a contract concluded between himself and three lawyers detailing the specific legal services to be provided by his lawyers in the domestic proceedings and before the Court. 111. The Government considered that the amount claimed for costs and expenses incurred before the Court was excessive and asked the Court to apply a strict approach in respect of the applicant ’ s claims. 112. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. Having regard to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 2,500 covering costs under all heads. C. Default interest 113. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held in particular that there had been a violation of Article 5 § 1 of the Convention because the facts relied on by the prosecuting authorities, namely that the applicant had not complied with legal administrative formalities while carrying out his NGO work, had not been sufficient to suspect him of having committed the offences with which he had been charged. Nor had they provided any other information or evidence which could serve as a basis for the suspicion underpinning his arrest and detention. The Court also held that there had been a violation of Article 5 § 4 because the courts had not carried out a proper judicial review of the applicant’s detention. Lastly, the Court held that there had been a violation of Article 18 in conjunction with Article 5, finding that the applicant’s arrest and detention had not been to bring him before a competent legal authority on reasonable suspicion of having committed an offence, but had been part of a larger campaign to crack down on human rights defenders in Azerbaijan in 2014. |
73 | Parental authority, child custody and access rights | ii. Relevant domestic law 19. Article 1905 of the Civil Code provides: “1. In the event of divorce …, child custody, maintenance and the terms of payment shall be determined by agreement between the parents, which is subject to confirmation by the ... court … 2. In the absence of an agreement, the court shall decide on the basis of the interests of the child, including the child’s interest in maintaining a very close relationship with the non-custodial parent ...” 20. Certain provisions of the Guardianship Act are also relevant to the instant case. Section 180 “1. ... a decision as to the exercise of parental responsibility shall be made on the basis of the interests of the child, custody of whom may be awarded to one of the parents, a third party or an educational or welfare establishment. 2. Contact arrangements shall be made unless, exceptionally, this would not be in the child’s interests ...” Section 181 “If one of the parents does not comply with the agreement or decision reached in respect of the child’s situation, the other parent may apply to the court for enforcement ...” Section 182 “If the agreement or final decision is not complied with by both the father and the mother or if fresh circumstances make it necessary to vary the terms, one of the parents or the guardian may apply to the ... court for variation of the award of parental responsibility ...” THE LAW i. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION TAKEN ALONE AND IN CONJUNCTION WITH ARTICLE 14 21. The applicant complained that the Lisbon Court of Appeal had based its decision to award parental responsibility for their daughter, M., to his ex-wife rather than to himself exclusively on the ground of his sexual orientation. He alleged that this constituted a violation of Article 8 of the Convention taken alone and in conjunction with Article 14. The Government disputed that allegation. 22. Under Article 8 of the Convention, “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” The Court notes at the outset that the judgment of the Court of Appeal in question, in so far as it set aside the judgment of the Lisbon Family Affairs Court of 14 July 1994 which had awarded parental responsibility to the applicant, constitutes an interference with the applicant’s right to respect for his family life and thus attracts the application of Article 8. The Convention institutions have held that this provision applies to decisions awarding custody to one or other parent after divorce or separation (see the Hoffmann v. Austria judgment of 23 June 1993, Series A no. 255-C, p. 58, § 29; see also Irlen v. Germany, application no. 12246/86, Commission decision of 13 July 1987, Decisions and Reports 53, p. 225). That finding is not affected by the Government’s submission that since the judgment of the Court of Appeal did not ultimately vary what had been decided by friendly settlement between the parents on 7 February 1991, there was no interference with the rights of Mr Salgueiro da Silva Mouta. The Court observes in that connection that the application lodged – successfully – by the applicant with the Lisbon Family Affairs Court was based on, among other things, the fact that his ex-wife had failed to comply with the terms of that agreement (see paragraph 11 above). A. Alleged violation of Article 8 taken in conjunction with Article 14 23. Given the nature of the case and the allegations of the applicant, the Court considers it appropriate to examine it first under Article 8 taken in conjunction with Article 14, according to which “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” 24. Mr Salgueiro da Silva Mouta stressed at the outset that he had never disputed the fact that his daughter’s interests were paramount, one of the main ones consisting in seeing her father and being able to live with him. He argued, nonetheless, that the Court of Appeal’s judgment, in awarding parental responsibility to the mother exclusively on the basis of the father’s sexual orientation, amounted to an unjustifiable interference with his right to respect for his family life. The applicant submitted that the decision in issue had been prompted by atavistic misconceptions which bore no relation to the realities of life or common sense. In doing so, he argued, the Court of Appeal had discriminated against him in a manner prohibited by Article 14 of the Convention. The applicant pointed out that judgment had been given in his favour by the court of first instance, that court being the only one to have had direct knowledge of the facts of the case since the Court of Appeal had ruled solely on the basis of the written proceedings. 25. The Government acknowledged that Article 8 could apply to the situation in question, but only as far as the applicant’s right to respect for his family life with his child was concerned. They stressed, however, that no act had been done by a public authority which could have interfered with the applicant’s right to the free expression and development of his personality or the manner in which he led his life, in particular his sexual life. With regard to family life, however, the Government pointed out that, as far as parental responsibility was concerned, the Contracting States enjoyed a wide margin of appreciation in respect of the pursuit of the legitimate aims set out in paragraph 2 of Article 8 of the Convention. They added that in this field, in which the child’s interests were paramount, the national authorities were naturally better placed than the international court. The Court should not therefore substitute its own interpretation of things for that of the national courts, unless the measures in question were manifestly unreasonable or arbitrary. In the instant case the Lisbon Court of Appeal had taken account, in accordance with Portuguese law, of the child’s interests alone. The intervention of the Court of Appeal had been prescribed by law (Article 1905 § 2 of the Civil Code and sections 178 to 180 of the Guardianship Act). Moreover, it had pursued a legitimate aim, namely the protection of the child’s interests, and was necessary in a democratic society. The Government concluded that the Court of Appeal, in reaching its decision, had had regard exclusively to the overriding interests of the child and not to the applicant’s sexual orientation. The applicant had not therefore been discriminated against in any way. 26. The Court reiterates that in the enjoyment of the rights and freedoms guaranteed by the Convention, Article 14 affords protection against different treatment, without an objective and reasonable justification, of persons in similar situations (see the Hoffmann judgment cited above, p. 58, § 31). It must be determined whether the applicant can complain of such a difference in treatment and, if so, whether it was justified. 1. Existence of a difference in treatment 27. The Government disputed the allegation that in the instant case the applicant and M.’s mother had been treated differently. They argued that the Lisbon Court of Appeal’s decision had been mainly based on the fact that, in the circumstances of the case, the child’s interests would be better served by awarding parental responsibility to the mother. 28. The Court does not deny that the Lisbon Court of Appeal had regard above all to the child’s interests when it examined a number of points of fact and of law which could have tipped the scales in favour of one parent rather than the other. However, the Court observes that in reversing the decision of the Lisbon Family Affairs Court and, consequently, awarding parental responsibility to the mother rather than the father, the Court of Appeal introduced a new factor, namely that the applicant was a homosexual and was living with another man. The Court is accordingly forced to conclude that there was a difference of treatment between the applicant and M.’s mother which was based on the applicant’s sexual orientation, a concept which is undoubtedly covered by Article 14 of the Convention. The Court reiterates in that connection that the list set out in that provision is illustrative and not exhaustive, as is shown by the words “any ground such as” (in French “ notamment ”) (see the Engel and Others v. the Netherlands judgment of 8 June 1976, Series A no. 22, pp. 30-31, § 72). 2. Justification for the difference in treatment 29. In accordance with the case-law of the Convention institutions, a difference of treatment is discriminatory within the meaning of Article 14 if it has no objective and reasonable justification, that is if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised (see the Karlheinz Schmidt v. Germany judgment of 18 July 1994, Series A no. 291 ‑ B, pp. 32-33, § 24). 30. The decision of the Court of Appeal undeniably pursued a legitimate aim, namely the protection of the health and rights of the child; it must now be examined whether the second requirement was also satisfied. 31. In the applicant’s submission, the wording of the judgment clearly showed that the decision to award parental responsibility to the mother was based mainly on the father’s sexual orientation, which inevitably gave rise to discrimination against him in relation to the other parent. 32. The Government submitted that the decision in question had, on the contrary, merely touched on the applicant’s homosexuality. The considerations of the Court of Appeal to which the applicant referred, when viewed in context, were merely sociological, or even statistical, observations. Even if certain passages of the judgment could arguably have been worded differently, clumsy or unfortunate expressions could not in themselves amount to a violation of the Convention. 33. The Court reiterates its earlier finding that the Lisbon Court of Appeal, in examining the appeal lodged by M.’s mother, introduced a new factor when making its decision as to the award of parental responsibility, namely the applicant’s homosexuality (see paragraph 28 above). In determining whether the decision which was ultimately made constituted discriminatory treatment lacking any reasonable basis, it needs to be established whether, as the Government submitted, that new factor was merely an obiter dictum which had no direct effect on the outcome of the matter in issue or whether, on the contrary, it was decisive. 34. The Court notes that the Lisbon Family Affairs Court gave its decision after a period in which the applicant, his ex-wife, their daughter M., L.G.C. and the child’s maternal grandparents had been interviewed by court psychologists. The court had established the facts and had had particular regard to the experts’ reports in reaching its decision. The Court of Appeal, ruling solely on the basis of the written proceedings, weighed the facts differently from the lower court and awarded parental responsibility to the mother. It considered, among other things, that “custody of young children should as a general rule be awarded to the mother unless there are overriding reasons militating against this (see paragraph 14 above). The Court of Appeal further considered that there were insufficient reasons for taking away from the mother the parental responsibility awarded her by agreement between the parties. However, after that observation the Court of Appeal added “Even if that were not the case ... we think that custody of the child should be awarded to the mother” (ibid.). The Court of Appeal then took account of the fact that the applicant was a homosexual and was living with another man in observing that “The child should live in ... a traditional Portuguese family” and that “It is not our task here to determine whether homosexuality is or is not an illness or whether it is a sexual orientation towards persons of the same sex. In both cases it is an abnormality and children should not grow up in the shadow of abnormal situations” (ibid.). 35. It is the Court’s view that the above passages from the judgment in question, far from being merely clumsy or unfortunate as the Government maintained, or mere obiter dicta, suggest, quite to the contrary, that the applicant’s homosexuality was a factor which was decisive in the final decision. That conclusion is supported by the fact that the Court of Appeal, when ruling on the applicant’s right to contact, warned him not to adopt conduct which might make the child realise that her father was living with another man “in conditions resembling those of man and wife” (ibid.). 36. The Court is therefore forced to find, in the light of the foregoing, that the Court of Appeal made a distinction based on considerations regarding the applicant’s sexual orientation, a distinction which is not acceptable under the Convention (see, mutatis mutandis, the Hoffmann judgment cited above, p. 60, § 36). The Court cannot therefore find that a reasonable relationship of proportionality existed between the means employed and the aim pursued; there has accordingly been a violation of Article 8 taken in conjunction with Article 14. B. Alleged violation of Article 8 taken alone 37. In view of the conclusion reached in the preceding paragraph, the Court does not consider it necessary to rule on the allegation of a violation of Article 8 taken alone; the arguments advanced in this respect are essentially the same as those examined in respect of Article 8 taken in conjunction with Article 14. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 38. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 39. The applicant requested the Court to award him “just satisfaction” without, however, quantifying his claim. In the circumstances the Court considers that the finding of a violation set out in the present judgment constitutes in itself sufficient just satisfaction in respect of the damage alleged. B. Costs and expenses 40. The applicant requested reimbursement of the costs incurred in lodging his application, including those of himself and his advisers attending the hearing before the Court, namely 224,919 Portuguese escudos (PTE), 5,829 French francs, 11,060 Spanish pesetas and 67 German marks, that is a total sum of PTE 423,217. He also requested reimbursement of the fees billed by his lawyer and by the adviser who had assisted her in preparing for the hearing before the Court, that is PTE 2,340,000 and PTE 340,000 respectively. 41. The Government left the matter to the Court’s discretion. 42. The Court is not satisfied that all the costs claimed were necessary and reasonable. Making an equitable assessment, it awards the applicant an aggregate sum of PTE 350,000 under that head. As regards fees, the Court considers that the sums claimed are also excessive. Making an equitable assessment and having regard to the circumstances of the case, it decides to award PTE 1,500,000 for the work done by the applicant’s lawyer and PTE 300,000 for that done by her adviser. C. Default interest 43. According to the information available to the Court, the statutory rate of interest applicable in Portugal at the date of adoption of the present judgment is 7% per annum. | The Court held that there had been a violation of Article 14 (prohibition of discrimination) taken in conjunction with Article 8 (right to respect for private and family life) of the Convention. The Portuguese courts’ decision had been largely based on the fact that the applicant was a homosexual and that “the child should live in a traditional Portuguese family”. That distinction, based on considerations relating to sexual orientation, was not acceptable under the Convention. |
310 | Prevention of terrorism | THE LAW I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 22. The applicant complained that his freedom of expression had been restricted in the framework of his release on licence. He relied on Article 10 of the Convention, which reads as follows: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” 23. The Government contested that argument. ... B. Merits 1. The parties a) The applicant 25. The applicant submitted that when the Paris Court of Appeal had initially decided to release him on licence, it had not considered it necessary to impose any obligations affecting his freedom of expression, that he had always scrupulously honoured all the obligations imposed on him in the framework of his release on licence, and that he had at no stage since his release condoned the offences of which he had been convicted. In his view, that fact demonstrated that there was no need for such a restriction, whose disproportionality also stemmed from its general nature, which afforded the judicial authorities a very wide margin of appreciation. In fact, the restriction was tantamount to banning him from voicing any opinion on the current political situation in the Basque Country, since the offences of which he had been convicted had been committed in that context. 26. The applicant took the view that despite the careful language used by the French judges, the real purpose of the obligation in question was to prohibit him from uttering any statement concerning the history and the political context of the Northern Basque Country. It was therefore an attempt unjustifiably to infringe his freedom of opinion and expression, particularly as it transpired from Article 729 of the Code of Criminal Procedure that only measures aimed at the convicted person ’ s rehabilitation and prevention of recidivism could be imposed in the framework of release on licence. b) The Government 27. The Government agreed that the prohibition imposed on the applicant amounted to an interference in the exercise of his right to freedom of expression. 28. They considered, however, that that interference was prescribed by law, that is to say in Article 132-45 ( 16 ) of the Penal Code, which met the requirements of precision and clarity set out in the case-law of the Court, particularly since the sentence enforcement judge and the Court of Appeal had pointed out that the measure imposed “merely prohibit[ed] commenting on or condoning the offences committed” and the applicant had not been banned from “expressing his political convictions ”. As regards the meaning of the word “ condoning ” ( apologie, in French), we might refer to the definition given in the Larousse dictionary : “commending or justifying something presented in a document or a speech”; “speech or document glorifying an act expressly prohibited by law ( e.g. condoning murder or racial hatred ) ”. 29. The Government submitted that the interference had pursued several of the legitimate aims listed in the second paragraph of Article 10 : the protection of public safety, prevention of disorder or crime, and the protection of the reputation or rights of others, namely those of the victims of the crimes committed by the applicant and of their families. On the latter point, they emphasised that the applicant ’ s release on licence had caused much emotion not only among the victims ’ families but also, more broadly, within the local population, particularly because, on the one hand, on leaving the prison the applicant had given a speech in Basque stating that his joy at being free was not complete because the French State did not recognise the Basque Country, and on the other hand, a few months later he had taken part in a demonstration in support of Basque prisoners, during which he had denounced the injustice of the situation of those political prisoners and stated that they should be released. According to the Government, therefore, the aim had been to prevent any act or comment likely to offend the victims ’ families and any further criminal activity. With reference to the judgment in the case of Leroy v. France (no. 36109/03, § 36, 2 October 2008), the Government observed that in the Court ’ s view, the legitimacy of the aims pursued by the interference should be assessed in the light of the sensitivity of the endeavour to combat terrorism and the need for the authorities to remain vigilant about acts liable to increase the attendant violence. 30. The Government further considered that the interference had been necessary in a democratic society. They referred to Zana v. Turkey (25 November 1997, § 55, Reports of Judgments and Decisions 1997 ‑ VII), where the Court had stated that it had, with due regard to the circumstances of each case and a State ’ s margin of appreciation, to ascertain whether a fair balance had been struck between the individual ’ s fundamental right to freedom of expression and “a democratic society ’ s legitimate right to protect itself against the activities of terrorist organisations”. They pointed out that the Court had already had occasion to consider the situation in the Basque Country in the cases of Leroy (cited above, § 38) and Association Ekin v. France (no. 39288/98, ECHR 2001 ‑ VIII). 31. As regards the proportionality of the measure, they emphasised, first of all, that Article 132-45 ( 16 ) of the Penal Code limited the scope of the impugned restriction to specific offences considered as extremely serious and that the provision only applied to persons who were on probation, were serving a semi-custodial sentence or had been released on licence, and that that restriction was implemented strictly in the framework and context of release on licence, that is to say in the context of individualised penalties aimed at the early release of a convicted person under certain conditions, with the fundamental aim of facilitating his rehabilitation. As that aim required the person concerned to stand back from the offences which he had committed, it had not been disproportionate to expect the applicant to refrain from any circulation of writings or documents or any public speech amounting to commenting on or condoning offences which had offended large sections of the general public. Furthermore, regard should be had to the fact that the impugned obligation had been imposed on the applicant following his participation in a demonstration outside Agen Prison in support of Basque prisoners, which the domestic courts, availing themselves of their discretionary powers, had regarded as conduct incompatible with his rehabilitation as it had been liable to expose him to risks of recidivism and to cause public disorder. According to the Government, the obligation had been linked to the situation and conduct of the applicant, who had held a special position in the Basque terrorist organisation: owing to the influence of his words, it had been necessary to take precautions to ensure that others did not interpret his words and behaviour as a call to further violence. 32. Secondly, according to the Government, the impugned restriction had been strictly limited in its purpose because it had only covered utterances on the offences of which the applicant had been convicted. Moreover, although the applicant had run the risk of having his release on licence revoked in the event of non-compliance with that obligation, such a sanction, which was left to the discretion of the judges, would not have been automatic and could only have been a partial revocation. They added that the revocation had been limited in time because it ended, as required, on expiry of the release licence. 2. The Court 33. The Court notes that in the framework of the applicant ’ s release on licence the domestic courts had, in particular, imposed on him the obligation to refrain from circulating any document or audiovisual material, produced or co-produced by himself, concerning the offences of which he had been convicted, and to refrain from making any public reference to those offences. That is obviously a restriction on the exercise of his freedom of expression within the meaning of Article 10 of the Convention, which fact, moreover, the Government do not deny. Such an interference infringes that provision unless it is “prescribed by law ”, pursues one or more of the legitimate aims set out in Article § 2 and is “necessary” “ in a democratic society” to attain those aims. 34. The Court first of all notes that the legal basis of the restriction is provided by Article 731 of the Code of Criminal Procedure and Article 132-45 ( 16 ) of the Penal Code, which state, in particular, that the sentence enforcement judge can make the release on licence of a person convicted of serious offences of intentional homicide subject to an obligation to “ refrain from circulating any document or audiovisual material, produced or co-produced by himself, concerning the offence committed and to refrain from making any public reference to that offence”. The Court consequently concludes that the restriction was “prescribed by law ”. 35. Secondly, it notes that the Government refer to several of the “ legitimate aims ” listed in Article 8 § 2 : the protection of public safety, prevention of disorder or crime, and the protection of the reputation or rights of others. It observes, however, that the domestic courts concentrated solely on the fact that the impugned measure was necessary for the prevention of “ public disorder ” (see paragraphs 16 and17 above). That being the case, the Court takes note of the Government ’ s explanations to the effect that the release on licence of the applicant, a former head of the Basque separatist organisation Iparretarrak who had been sentenced to life imprisonment for the murder of three persons in a terrorist context, had caused widespread emotion among the victims ’ families and, more broadly, within the local population. It observes, as stated by the Government, that the impugned measure was taken a few months after the beginning of the applicant ’ s release on licence, following his participation in a peaceful demonstration outside Agen Prison in support of Basque prisoners who were held there, which participation had attracted media coverage. The Court also understands why, in that context, the judicial authorities might have feared that the applicant would place himself in a position conducive to possible recidivism. It therefore accepts, having regard to the situation prevailing in the Basque Country ( see Association Ekin, cited above, § 48), that the restriction complained of pursued one of the aims listed in Article 10 § 2, namely “ prevention of disorder or crime ”. 36. The fundamental principles as regards the necessity “ in a democratic society” of an interference with the exercise of freedom of expression are well established in the Court ’ s case-law, and may be summarised as follows ( see, among other authorities, Hertel v. Switzerland, 25 August 1998, § 46, Case Reports 1998 ‑ VI; Steel and Morris v. the United Kingdom, no. 68416/01, § 87, ECHR 2005 ‑ II; Mouvement raëlien suisse v. Switzerland [GC], no. 16354/06, § 48, ECHR 2012; Animal Defenders International v. the United Kingdom [GC], no. 48876/08, § 100, ECHR 2013; Morice v. France [GC], no. 29369/10, § 124, 2 3 April 2015; and Delfi AS v. Estonia [GC], no. 64569/09, § 131, ECHR 2015 ): “(i) Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual ’ s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to ‘ information ’ or ‘ ideas ’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no ‘ democratic society ’. As set forth in Article 10, this freedom is subject to exceptions, which ... must, however, be construed strictly, and the need for any restrictions must be established convincingly ... (ii) The adjective ‘ necessary ’, within the meaning of Article 10 § 2, implies the existence of a ‘ pressing social need ’. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a ‘ restriction ’ is reconcilable with freedom of expression as protected by Article 10. (iii) The Court ’ s task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether it was ‘ proportionate to the legitimate aim pursued ’ and whether the reasons adduced by the national authorities to justify it are ‘ relevant and sufficient ’ ... In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they relied on an acceptable assessment of the relevant facts ... ” 37. In Leroy ( cited above, § 37), relating to the publication of a satirical drawing in a Basque weekly magazine, and Zana ( cited above, § 55), referred to by the Government, the Court pointed out that those principles apply to measures taken by national authorities to maintain national security and public safety as part of the fight against terrorism, and that it must, with due regard to the circumstances of each case and a State ’ s margin of appreciation, ascertain whether a fair balance has been struck between the individual ’ s fundamental right to freedom of expression and a democratic society ’ s legitimate right to protect itself against the activities of terrorist organisations. These considerations are relevant to the present case mutatis mutandis. 38. The Court has also emphasised that although Article 10 does not as such prohibit prior restraints on publication or bans on distribution of “information” or “ideas”, the dangers which restrictions of that kind pose for a democratic society are such that they call for the most careful scrutiny on the part of the Court ( see, in particular, Association Ekin, cited above, § 56, and Éditions Plon v. France, no. 58148/00, § 42, ECHR 2004 ‑ IV). That is particularly true in the case of measures to prevent the distribution of comments which are only potential at the time of adoption of the former. 39. In the present case, therefore, the Court is concerned by the fact that when deciding to impose the impugned restriction on the applicant, the sentence enforcement judge did not base his decision on the latter ’ s specific comments or writings, but on potential comments or writings, stating that “ it [was] quite possible that [he] might be tempted to publish his memoirs and make statements on the offences of which he was convicted ”. 40. The Court further considers it regrettable that the domestic judge neither balanced the competing interests nor fully characterised the risk of public disorder. 41. That being the case, the Court notes that decisions to apply Article 132 ‑ 45 of the Code of Criminal Procedure are not administrative but judicial, because they are taken by the sentence enforcement judge and the convicted persons in question can lodge an ordinary appeal, followed by an appeal on points of law. It notes that the applicant availed himself of that right since he appealed to the Paris Court of Appel against the judgment imposing the impugned obligation – emphasising, in particular, that that obligation merely prohibited him commenting on or condoning the offences committed, that it was not a disproportionate measure in the light of the need to protect public order, and that it in no way prevented him from expressing his political convictions – and that he subsequently appealed on points of law to the Court of Cassation ( see paragraphs 16 and 17 above ). He therefore benefited from judicial review providing genuine safeguards against abuse, to which procedure the Court attaches great importance ( see Association Ekin, cited above, § 61). 42. The Court further notes that the measures taken pursuant to paragraph 16 of that Article are limited in three respects. They are limited with regard to the persons on whom they can be imposed, as they apply solely to persons convicted of specific crimes or offences ( culpable injury of life, sexual assault or sexual abuse ). They are also limited not only in time (ending at the same time as the period of release on licence ) but also in their purpose, since they can only affect the person ’ s freedom of expression on the offence which he or she had committed. In the present case, moreover, the Paris Court of Appeal very clearly reiterated in its judgment of 31 August 2010 that the restriction imposed on the applicant “ merely prohibited commenting on or condoning the offences committed ” ( see paragraph 16 above ). It would therefore seem that, contrary to his allegations, the applicant retained the right to express his views on the Basque question, provided that he did not mention the offences of which he had been convicted. 43. When the Court assesses an interference with the rights secured under Article 10, it also attaches great importance to the limited nature of the measure adopted ( see, for example, Donaldson v. the United Kingdom (dec.), 56975/09, §§ 30-31, 25 January 2011). 44. Furthermore, the present case should also been seen in the light, mutatis mutandis, of the case of Nilsen v. the United Kingdom (dec.) (no. 36882/05, 9 March 2010), in which, relying on his freedom of expression, a prisoner complained of the fact that the manuscript of his autobiography had been confiscated on the ground, in particular, that it had gone into detail on the crimes of which he had been convicted. While reiterating that prisoners in general continue to enjoy all the fundamental rights and freedoms guaranteed under the Convention save for the right to liberty, and in particular the right to freedom of expression, and any restriction must be specifically justified in each case, the Court found that the complaint under Article 10 was manifestly ill-founded owing, in particular, to the fact that the impugned measure had not amounted to a complete restriction on the exercise of the rights set out in that provision. 45. Finally, the Court cannot overlook the context in which the applicant ’ s freedom of expression was restricted, that is to say that the decision was taken to restrict that right in the framework of the early release of a major, well-known figure in a terrorist organisation who had been sentenced to life imprisonment for murders committed in a terrorist context, which early release, as already mentioned in paragraph 35 above, had caused considerable emotion among the victims ’ families and, more broadly, within the local population. 46. All these factors lead the Court to accept that in imposing on the applicant, in the framework of his release on licence, the obligation to refrain from distributing any document or audiovisual material produced or co-produced by himself concerning, in whole or in part, the offences of which he was convicted, and to refrain from making any public reference to those offences, the domestic courts did not exceed the margin of appreciation available to them. 47. Therefore, there was no violation of Article 10 of the Convention. | The Court held that there had been no violation of Article 10 (right to freedom of expression) of the Convention. It noted in particular that the impugned measure was limited in time and concerned only the offences committed by the applicant. He had also been able to have the measure reviewed by the courts. The Court therefore found that, in imposing on the applicant, in the context of his release on licence, an obligation to refrain from disseminating any work or audio-visual production authored or co-authored by him concerning, in whole or in part, the offences of which he had been convicted, and from speaking publicly about those offences, the French courts had not overstepped their margin of appreciation. |
135 | Sexual abuse | II. RELEVANT DOMESTIC AND INTERNATIONAL LAW 49. At the date when the abuse against the first applicant occurred, the relevant provisions of the Criminal Code read as follows: Article 197 Rape “(1) Sexual intercourse with a female through coercion or taking advantage of her incapability of defending herself or of expressing her will, is punishable by three to ten years of imprisonment. (2) The sentence will be from five to fifteen years if: (a) the act was committed by two or more than two persons together; ... (3) The sentence will be from ten to twenty years if the victim is not yet fourteen years old ...” Article 198 Sexual intercourse with a minor female “(1) Sexual intercourse with a female who has not yet reached fourteen years of age is punishable by imprisonment of from one to five years.” Article 200 Sexual intercourse between persons of the same sex “(1) Sexual intercourse between persons of the same sex, carried out in public or which causes a public scandal, is punishable by imprisonment of between one and five years. (2) Sexual intercourse by an adult with a juvenile of the same sex is punishable by imprisonment of between two and seven years and loss of certain rights. (3) Sexual intercourse with a person of the same sex who is incapable of defending him or herself or of expressing his or her will, or which is performed through coercion, is punishable by imprisonment of between three and ten years and loss of certain rights.” Article 201 Sexual perversion “(1) Acts of sexual perversion committed in public which cause a public scandal are punishable by imprisonment from one to five years.” Article 202 Sexual corruption “(1) Acts of an obscene nature committed to a minor or in his or her presence are punishable by imprisonment from three months to two years or by a fine.” 50. Articles 197 and 198 have been amended successively in order to recognise males as potential victims of rape and statutory rape, by Law no. 197/2000, which entered into force on 15 November 2000 and by Emergency Ordinance no. 89/2001, which entered into force on 26 June 2001. The latter Ordinance also decriminalised consenting same sex intercourse. 51. On 28 September 1990 Romania ratified the United Nations Convention on the Rights of the Child (“the CRC”), in force since 2 September 1990. The CRC stipulates that the best interests of the child and his or her dignity shall be a primary consideration in all actions concerning children (Article 3). 52. The CRC urges Member States to take all appropriate measures to protect children from all forms of violence, including sexual abuse, and to provide for the recovery and social reintegration of victims. The relevant articles read as follows: Article 19 “1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child. 2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.” Article 34 “States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, States Parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent: (a) The inducement or coercion of a child to engage in any unlawful sexual activity;” Article 39 “States Parties shall take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of: any form of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment; or armed conflicts. Such recovery and reintegration shall take place in an environment which fosters the health, self-respect and dignity of the child.” 53. The Committee on the Rights of the Child interpreted the text of the CRC in its General comments. Its latest General comment no. 13 (2011) on the right of the child to freedom from all forms of violence is aimed at guiding State parties in understanding their obligations under Article 19 of the CRC, building on existing documents and reflecting on the evolution of the protection in question. The Committee acknowledged the efforts of the States to prevent and respond to violence. It nevertheless found that the States were lagging behind in their obligations: “§ 12 ...In spite of these efforts, existing initiatives are in general insufficient. Legal frameworks in a majority of States still fail to prohibit all forms of violence against children, and where laws are in place, their enforcement is often inadequate.” The Committee expresses the view that States are under a “strict obligation” to undertake all appropriate measures to fully implement this right for all children (paragraph 37 of the General comment). Among the State obligations, the Committee identified the need to: review and amend domestic legislation in line with Article 19 of the CRC; ensure protection to child victims and effective access to redress and reparation; enforce law in a child-friendly way; and provide for counselling support (paragraphs 41-44 of the General comment). The Committee develops further on the content of the “protective measures”, stressing the importance of prevention, the need for an easily accessible report mechanism, the importance of rigorous and child-sensitive investigation and of effective and child-friendly justice where due process must be respected (in particular paragraphs 45-58 of the General comment). 54. On 25 October 2007 the Council of Europe, recognising that the well-being and best interests of children are fundamental values shared by all member States, adopted the Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse urging the Member States to adopt measures to protect children from any form of abuse and to put in place a system capable of punishing any such acts. On 17 May 2011 the respondent State ratified that Convention which entered into force in respect of Romania on 1 September 2011. THE LAW I. ALLEGED VIOLATION OF ARTICLES 3 AND 8 OF THE CONVENTION 55. The first applicant complained under Articles 3 and 8 of the Convention about the violence and sexual abuse he was subjected to by P.E. with the help of S.P. and L.I.D. Both applicants complained under Article 8 that P.E. destroyed their home and family and that they had been forced to leave town after the events in order to reconstruct a normal life. 56. Article 3 of the Convention reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 57. Article 8 of the Convention reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 58. The Government averred that the applicants’ complaint under Article 8 refers only to the fact that the alleged perpetrators had been acquitted and that the applicants had been forced to leave town in order to protect the first applicant after the incidents. In their view, these aspects should not fall within the realm of Article 8 of the Convention and in any case the applicants could not be considered victims of a violation of that Article. They put forward that the applicants had chosen to leave and had not been forced to do so by the authorities; the applicants had also waited for nine months after the end of the proceedings and almost seven years after the events before they had actually moved. The Government also pointed out that the applicants had failed to complain to the authorities about any impact on their private and family lives of the allegedly ineffective investigation. 59. The applicants contested those arguments. 60. The Court notes that the second applicant only complains about the fact that he and his family had been forced to leave town after the events. These allegations are also raised by the first applicant in his complaint under Article 8. However, there is no indication in the file that the authorities had in any way contributed to that departure. Furthermore, the applicants had not complained as such to the authorities about the fact that they had had to leave town. It follows that this part of the complaint raised by the first applicant and the whole complaint raised by the second applicant are manifestly ill ‑ founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. 61. Furthermore, the Court notes that the first applicant complained about ill-treatment inflicted by a third party. At no point did he claim that State officials had been involved in the actual abuse. It follows that, as far as the complaint concerns the material aspects of Article 3 of the Convention, it is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4. 62. Lastly, the Court considers that in so far as it concerns the effectiveness of the investigations and their impact on the first applicant’s family life, the remainder of the complaint raised by the first applicant under Articles 3 and 8 of the Convention is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties’ positions 63. The first applicant pointed out that abuse such as that he had suffered had been qualified by the Court as torture. He made reference to the case of Aydın v. Turkey (25 September 1997, Reports of Judgments and Decisions 1997 ‑ VI), where the victim had been in detention. As for the proceedings in the case at hand, he argued that the investigation had been neither prompt nor effective, that the prosecutor had waited for three weeks before opening the investigation and for two months to question P.E. He also contended that some essential investigative steps had not been taken by the police, in particular the taking of DNA samples from the applicants’ flat, from the accused persons and from the dog; while some measures had been overemphasised, despite their limited relevance to the facts. The first applicant also complained about the manner in which the courts had weighted the evidence, pointing out, in particular, that the courts had discarded the direct evidence proving P.E.’s guilt (polygraph test, police line up, first medical certificates) while favouring later expert evaluations of the victim and blaming the parents for not having reacted sooner. 64. Lastly, the first applicant complained that the legal classification given to the facts by the domestic courts contradicted the Convention requirements and had only been made possible because there had been no adequate legislation to deal with rape of boys at that time. 65. The Government contended that the authorities had had a difficult task in establishing the facts of the case, given the conflicting statements made by the victim, his family and the witnesses throughout the proceedings. In their view, the investigation had been prompt, thorough and rapid and the mere fact that a conviction had not been secured did not render the investigation ineffective. They considered that it had taken the victim’s family too long to react despite the fact that there had been visible signs of abuse. That attitude was, in their view, inexplicable, especially since the child had not had any social problems before the incidents. 66. The Government also pointed out that the obligation imposed on the States under the procedural head of Article 3 was not an obligation of result but one of means. 67. As far as Article 8 is concerned, the Government contended that, in the context of the case and given the way the applicants phrased their complaint, it would be difficult to identify a negative or positive obligation incumbent on the State. 2. The Court’s appreciation (a) General principles 68. The Court reiterates that the obligation of the High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to ill-treatment, including ill-treatment administered by private individuals (see M.C. v. Bulgaria, no. 39272/98, § 149, ECHR 2003 ‑ XII). 69. Furthermore, the absence of any direct State responsibility for acts of violence that meet the condition of severity such as to engage Article 3 of the Convention does not absolve the State from all obligations under this provision. In such cases, Article 3 requires that the authorities conduct an effective official investigation into the alleged ill-treatment even if such treatment has been inflicted by private individuals (see M.C., cited above, § 151, and Denis Vasilyev v. Russia, no. 32704/04, §§ 98-99, 17 December 2009). 70. Even though the scope of the State’s positive obligations might differ between cases where treatment contrary to Article 3 has been inflicted through the involvement of State agents and cases where violence is inflicted by private individuals, the requirements as to an official investigation are similar. For the investigation to be regarded as “effective”, it should in principle be capable of leading to the establishment of the facts of the case and to the identification and punishment of those responsible. This is not an obligation of result, but one of means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony, forensic evidence, and so on. Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of this standard, and a requirement of promptness and reasonable expedition is implicit in this context. In cases under Articles 2 and 3 of the Convention where the effectiveness of the official investigation has been at issue, the Court has often assessed whether the authorities reacted promptly to the complaints at the relevant time. Consideration has been given to the opening of investigations, delays in taking statements and to the length of time taken for the initial investigation (see Denis Vasilyev, cited above, § 100 with further references; and Stoica v. Romania, no. 42722/02, § 67, 4 March 2008). 71. Furthermore, positive obligations on the State are inherent in the right to effective respect for private life under Article 8; these obligations may involve the adoption of measures even in the sphere of the relations of individuals between themselves. While the choice of the means to secure compliance with Article 8 in the sphere of protection against acts of individuals is in principle within the State’s margin of appreciation, effective deterrence against serious acts such as rape, where fundamental values and essential aspects of private life are at stake, requires efficient criminal-law provisions. Children and other vulnerable individuals, in particular, are entitled to effective protection (see M.C., cited above, § 150). 72. The Court reiterates that it has not excluded the possibility that the State’s positive obligation under Article 8 to safeguard the individual’s physical integrity may extend to questions relating to the effectiveness of a criminal investigation (see M.C., cited above, § 152). Lastly, the Court notes that the United Nations Committee on the Rights of the Child has emphasised that a series of measures must be put in place so as to protect children from all forms of violence which includes prevention, redress and reparation (see paragraphs 52 ‑ 53 above). (b) Application of those principles to the case under examination 73. On the facts of the case, the Court notes at the outset that the acts of violence suffered by the first applicant and not contested by the Government undoubtedly meet the threshold of Article 3. The State’s positive obligations were thus called into action. 74. The Court notes with concern that despite the gravity of the allegations and the particular vulnerability of the victim, the investigations did not start promptly. Indeed, it took the authorities three weeks from the date the complaint had been lodged, to order the medical examination of the victim and almost two months to question the main suspect. The investigation took five years and the applicants’ repeated complaints about its length were unsuccessful. The County Court acknowledged the significant lapse of time, but drew no inference from it. Furthermore, the Court notes that for almost three years no significant investigative steps were taken after the prosecutor’s first decision not to prosecute (16 June 2000), despite the repeated hierarchical instructions to continue the investigations. 75. At the end of the criminal proceedings, some seven years after the date of the alleged facts, the accused person was exonerated. Nothing in the file indicates that the authorities tried to find out if somebody else could be held criminally responsible for these serious crimes. This raises doubts as to the effectiveness of the proceedings, in particular in such a sensitive case as that involving the violent sexual abuse of a minor (see, mutatis mutandis, Stoica, cited above, § 77). 76. The Court has found no indication of arbitrariness in the way the courts classified the facts in law. Indeed, in application of the principle of the more lenient criminal law, the rape of male juveniles was not criminally punishable at the time, as males were not recognised as potential victims of rape until 15 November 2000 and as in 2001 Article 200, which prohibited sexual intercourse with a person of the same sex, including through coercion, was abolished (see paragraphs 49 and 50 above). Before the scope of the protection against rape was extended to potential male victims, the system allowed nevertheless for those acts to be reprimanded in the context of other crimes, such as the ones invoked in the case under examination. The Court notes that the respondent State’s legislation currently protects all persons, including male and female juveniles, against rape, including statutory rape. It also notes that Romania has ratified the CRC and the Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (see paragraphs 51-54 above) which provide obligations for the Member States to protect children against any form of abuse. 77. As for the proceedings in the case at hand, the Court reiterates that it is not concerned with allegations of errors or isolated omissions in the investigation; that it cannot replace the domestic authorities in the assessment of the facts of the case; and that it cannot decide on the alleged perpetrators’ criminal responsibility (see M.C., cited above, § 168). In similar cases, the Court has expressed the opinion that it was for the authorities to explore all the facts and decide on the basis of an assessment of all the surrounding circumstances (see M.C., cited above, § 181). 78. Notwithstanding its subsidiary role in the matter, the Court is particularly concerned that the authorities did not try to weigh up the conflicting evidence and made no consistent efforts to establish the facts by engaging in a context-sensitive assessment (see M.C., cited above, § 177). The Court emphasises that investigation has to be rigorous and child ‑ sensitive in case involving violence against a minor. 79. The Court cannot but note that while the authorities adopted a lax attitude concerning the length of the investigation, the domestic courts attached significant weight to the fact that the family did not report the alleged crimes immediately to the police and that, to a certain extent, the victim did not react sooner (see paragraph 47 above). 80. The Government also evoked the parents’ alleged negligence in spotting and reporting the abuse in good time. Even if - with hindsight - it might have been advisable for the parents to take prompt action when they noticed the first changes in the behaviour of the first applicant and the blood in his underpants, the Court fails to see how this could have had a major impact on the diligence of the police in their response to the reported facts. Neither can the Court understand why the domestic courts have attached such a significant weight to that fact. 81. Concerning notably the weight attached to the victim’s reaction, the Court considers that the authorities were not mindful of the particular vulnerability of young people and the special psychological factors involved in cases concerning violent sexual abuse of minors, particularities which could have explained the victim’s hesitations both in reporting the abuse and in his descriptions of the facts (see M.C., cited above, § 183). 82. The Court points out that the obligations incurred by the State under Articles 3 and 8 of the Convention in cases such as this require that the best interests of the child be respected. The right to human dignity and psychological integrity requires particular attention where a child is the victim of violence (see, mutatis mutandis, Pretty v. the United Kingdom, no. 2346/02, § 65, ECHR 2002 ‑ III). The Court regrets that the first applicant was never offered counselling and was not accompanied by a qualified psychologist during the proceedings or afterwards. The only mention of such support is from the school counsellor, who suggested that it would be better if the family moved away. Bearing in mind the positive obligations that the Respondent State has assumed under the various international instruments protecting the rights of child, this cannot be considered to constitute an adequate measure for “recovery and reintegration”. 83. The failure to adequately respond to the allegations of child abuse in this case raises doubts as to the effectiveness of the system put in place by the State in accordance with its international obligations and leaves the criminal proceedings in the case devoid of meaning. The foregoing considerations are sufficient to enable the Court to conclude that the authorities failed to meet their positive obligations to conduct an effective investigation into the allegations of violent sexual abuse and to ensure adequate protection of the first applicant’s private and family life. There has accordingly been a violation of Articles 3 and 8 of the Convention in respect of the first applicant. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 84. The first applicant complained about the length and outcome of the investigation and of the criminal proceedings. He relied on Article 6 of the Convention. 85. Both parties presented observations on the matter. 86. Having regard to the finding relating to Articles 3 and 8 (see paragraph 70 above), the Court considers that this complaint is admissible, but that it is not necessary to examine whether, in this case, there has been a violation of Article 6 (see, among other authorities, Bota v. Romania, no. 16382/03, § 59, 4 November 2008). III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 87. Lastly, the first applicant complained, under Article 2 of the Convention, that P.E. had threatened to kill him if he told anyone about the abuse and under Article 5 of the Convention that P.E. had deprived him of his liberty. 88. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 89. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 90. The applicants claimed 1,000,000 euros (EUR) in respect of non ‑ pecuniary damage suffered by the first applicant. 91. The Government argued that there was no causal link between the alleged violation and the amount sought and that the applicants’ claims were in any case exaggerated. Lastly, they suggested that a finding of a violation would constitute just satisfaction in the case. 92. The Court acknowledges that the first applicant must have suffered hardship and distress because of the ineffective investigation and the interference with the normal course of his private and family life. It therefore awards the first applicant EUR 15,000 in respect of non-pecuniary damage. B. Costs and expenses 93. The applicants did not make a claim under this head. C. Default interest 94. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court, finding that the authorities had failed to carry out an effective investigation into the allegations of violent sexual abuse of the first applicant and to ensure adequate protection of his private and family life, held that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) and of Article 8 (right to respect for private and family life) of the Convention. In this judgment, the Court clearly recognised that States had an obligation under Articles 3 and 8 of the Convention to ensure the effective criminal investigation of cases involving violence against children. It, moreover, specifically referred to the international obligations Romania had undertaken for the protection of children against any form of abuse5, including helping recovery and social reintegration of victims, and particularly regretted that the first applicant had never been provided with counselling or been accompanied by a qualified psychologist during the proceedings concerning his rape or afterwards. |
319 | Obligation on States to protect the victims of trafficking | III. RELEVANT DOMESTIC LAW AND PRACTICE A. Cyprus 1. Extracts of the Constitution 108. Under the Cypriot Constitution the right to life and corporal integrity is protected by Article 7. 109. Article 8 provides that no person shall be subjected to torture or to inhuman or degrading punishment or treatment. 110. Article 9 guarantees that: “ Every person has the right to a decent existence and to social security. A law shall provide for the protection of the workers, assistance to the poor and for a system of social insurance. ” 111. Article 10 provides, in so far as relevant, that: “ 1. No person shall be held in slavery or servitude. 2. No person shall be required to perform forced or compulsory labour ... ” 112. Article 11(1) provides that every person has the right to liberty and security of person. Article 11(2) prohibits deprivation of liberty except in cases permitted under Article 5 § 1 of the Convention and as provided by law. 2. Applications for entrance, residence and work permits for artistes a. The procedure at the relevant time 113. In 2000, the Civil Registry and Migration Department defined “artiste” as : “any alien who wishes to enter Cyprus in order to work in a cabaret, musical-dancing place or other night entertainment place and has attained the age of 18 years.” 114. Under Article 20 of the Aliens and Immigration Law, Cap. 105, the Council of Ministers has jurisdiction to issue regulations concerning entry requirements for aliens, monitoring the immigration and movements of aliens, regulating warranties in respect of aliens holding permits and determining any relevant fees. Notwithstanding the existence of these powers, at the material time the entry procedures for those entering Cyprus to work as cabaret artistes were regulated by decisions or instructions of the Minister of Interior, immigration officers and the general directors of the Ministry. 115. In line with a procedure introduced in 1987, applications for entry, temporary residence and work permits had to be submitted by the prospective employer (the cabaret manager) and the artistic agent, accompanied by an employment contract recording the exact terms agreed between the parties and photocopies of relevant pages of the artiste ’ s passport. Artistic agents were also required to deposit a bank letter guarantee in the sum of 10,000 Cypriot pounds (CYP) (approximately EUR 17,000) to cover possible repatriation expenses. Cabaret managers were required to deposit a bank warranty in the sum of CYP 2,500 (approximately EUR 4,200) to cover a repatriation for which the manager was responsible. 116. If all the conditions were fulfilled, an entry and temporary resident permit valid for five days was granted. Upon arrival, the artiste was required to undergo various medical tests for AIDS and other infectious or contagious diseases. Upon submission of satisfactory results, a temporary residence and work permit valid for three months was granted. The permit could be renewed for a further three months. The number of artistes who could be employed in a single cabaret was limited. 117. In an effort to prevent artistes from being forced to leave the cabaret with clients, artistes were required to be present on the cabaret premises between 9 p.m. and 3 a.m., even if their own performance lasted for only one hour. Absence due to illness had to be certified by a doctor ’ s letter. Cabaret managers were required to advise the Immigration Office if an artiste failed to show up for work or otherwise breached her contract. Failure to do so would result in the artiste being expelled, with her repatriation expenses covered by the bank guarantee deposited by the cabaret manager. If an artistic agent had been convicted of offences linked to prostitution, he would not be granted entry permits for artistes. b. Other relevant developments 118. In 1986, following reports of prostitution of artistes, the Police Director proposed establishing an ad hoc committee responsible for assessing whether artistes seeking to enter Cyprus held the necessary qualifications for the grant of an artiste visa. However, the measure was never implemented. A committee with a more limited remit was set up but, over time, was gradually weakened. 119. Under the procedure introduced in 1987, an application for an entry permit had to be accompanied by evidence of artistic competency. However, this measure was indefinitely suspended in December 1987 on the instructions of the then General Director of the Ministry of the Interior. 120. In 1990, following concerns about the fact that artistic agents also owned or managed cabarets or owned the accommodation in which their artistes resided, the Civil Registry and Immigration Department notified all artistic agents that from 30 June 1990 cabaret owners were not permitted to work also as artistic agents. They were requested to advise the authorities which of the two professions they intended to exercise. Further, the level of the bank guarantees was increased, from CYP 10,000 to CYP 15,000 in respect of artistic agents and from CYP 2,500 to CYP 10,000 in respect of cabaret managers. However, these measures were never implemented following objections from artistic agents and cabaret managers. The only change which was made was an increase in the level of the bank guarantee by cabaret managers from CYP 2,500 to CYP 3,750 (approximately EUR 6,400). 3. Law on inquests 121. The holding of inquests in Cyprus is governed by the Coroners Law of 1959, Cap. 153. Under section 3, every district judge and magistrate may hold inquests within the local limits of his jurisdiction. Section 3(3) provides that any inquest commenced by a coroner may be continued, resumed, or reopened in the manner provided by the Law. 122. Section 14 sets out the procedure at the inquest and provides as follows (all quotes to Cypriot legislation are translated) : “ At every inquest– (a) the coroner shall take on oath such evidence as is procurable as to the identity of the deceased, and the time, place and manner of his death; (b) every interested party may appear either by advocate or in person and examine, cross-examine or re-examine, as the case may be, any witness. ” 123. Section 16 governs the extent of the coroner ’ s powers and provides that : “ (1) A coroner holding an inquest shall have and may exercise all the powers of a district judge or magistrate with regard to summoning and compelling the attendance of witnesses and requiring them to give evidence, and with regard to the production of any document or thing at such inquest. ” 124. Under section 24, where the coroner is of the opinion that sufficient grounds are disclosed for making a charge against any person in connection with the death, he may issue a summons or warrant to secure the attendance of such person before any court having jurisdiction. 125. Section 25 provides that following the hearing of evidence, the coroner shall give his verdict and certify it in writing, showing, so far as such particulars have been proved to him, who the deceased was, and how, when and where the deceased came by his death. Under section 26, if at the close of the inquest the coroner is of the opinion that there are grounds for suspecting that some person is guilty of an offence in respect of the matter inquired into, but cannot ascertain who such person is, he shall certify his opinion to that effect and transmit a copy of the proceedings to the police officer in charge of the district in which the inquest is held. 126. Section 30 allows the President of the District Court, upon the application of the Attorney-General, to order the holding, re-opening or quashing of an inquest or verdict. It provides that: “ (1) Where the President, District Court, upon application made by or under the authority of the Attorney-General, is satisfied that it is necessary or desirable to do so, he may – (a) order an inquest to be held touching the death of any person; (b) direct any inquest to be reopened for the taking of further evidence, or for the inclusion in the proceedings thereof and consideration with the evidence already taken, of any evidence taken in any judicial proceedings which may be relevant to any issue determinable at such inquest, and the recording of a fresh verdict upon the proceedings as a whole; (c) quash the verdict in any inquest substituting therefor some other verdict which appears to be lawful and in accordance with the evidence recorded or included as hereinbefore in this section provided; or (d) quash any inquest, with or without ordering a new inquest to be held.” 4. Trafficking in human beings 127. Legislation on human trafficking was introduced in Cyprus under Law No. 3(1) of 2000 on the Combating of Trafficking in Persons and Sexual Exploitation of Children. Section 3 (1) prohibits: “ a. The sexual exploitation of adult persons for profit if: IV. RELEVANT INTERNATIONAL TREATIES AND OTHER MATERIALS A. Slavery 1. Slavery Convention 1926 137. The Slavery Convention, signed in Geneva in 1926, entered into force on 7 July 1955. Russia acceded to the Slavery Convention on 8 August 1956 and Cyprus on 21 April 1986. In the recitals, the Contracting Parties stated as follows: “ Desiring to ... find a means of giving practical effect throughout the world to such intentions as were expressed in regard to slave trade and slavery by the signatories of the Convention of Saint-Germain-en-Laye, and recognising that it is necessary to conclude to that end more detailed arrangements than are contained in that Convention, Considering, moreover, that it is necessary to prevent forced labour from developing into conditions analogous to slavery ... ” 138. Article 1 defines slavery as: “the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised”. 139. Under Article 2, the parties undertake to prevent and suppress the slave trade and to bring about, progressively and as soon as possible, the complete abolition of slavery in all its forms. 140. Article 5 deals with forced or compulsory labour and provides, inter alia, that: “The High Contracting Parties recognise that recourse to compulsory or forced labour may have grave consequences and undertake, each in respect of the territories placed under its sovereignty, jurisdiction, protection, suzerainty or tutelage, to take all necessary measures to prevent compulsory or forced labour from developing into conditions analogous to slavery.” 141. Article 6 requires States whose laws do not make adequate provision for the punishment of infractions of laws enacted with a view to giving effect to the purposes of the Slavery Convention to adopt the necessary measures in order that severe penalties can be imposed in respect of such infractions. 2. Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia 142. In the first case to deal with the definition of enslavement as a crime against humanity for sexual exploitation, Prosecutor v. Kunarac, Vukovic and Kovac, 12 June 2002, the International Criminal Tribunal for the Former Yugoslavia observed that: “117. ... the traditional concept of slavery, as defined in the 1926 Slavery Convention and often referred to as ‘ chattel slavery ’ has evolved to encompass various contemporary forms of slavery which are also based on the exercise of any or all of the powers attaching to the right of ownership. In the case of these various contemporary forms of slavery, the victim is not subject to the exercise of the more extreme rights of ownership associated with ‘ chattel slavery ’, but in all cases, as a result of the exercise of any or all of the powers attaching to the right of ownership, there is some destruction of the juridical personality; the destruction is greater in the case of ‘ chattel slavery ’ but the difference is one of degree ... ” 143. It concluded that: “119. ... the question whether a particular phenomenon is a form of enslavement will depend on the operation of the factors or indicia of enslavement [including] the ‘ control of someone ’ s movement, control of physical environment, psychological control, measures taken to prevent or deter escape, force, threat of force or coercion, duration, assertion of exclusivity, subjection to cruel treatment and abuse, control of sexuality and forced labour ’. Consequently, it is not possible exhaustively to enumerate all of the contemporary forms of slavery which are comprehended in the expansion of the original idea ... ” 3. The Rome Statute 144. The Statute of the International Criminal Court (“the Rome Statute”), which entered into force on 1 July 2002, provides that “enslavement” under Article 7(1)(c) of the Rome Statute: “means the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children .” 145. Cyprus signed the Rome Statute on 15 October 1998 and ratified it on 7 March 2002. Russia signed the Statute on 13 September 2000. It has not ratified the Statute. B. Trafficking 1. Early trafficking agreements 146. The first international instrument to address trafficking of persons, the International Agreement for the Suppression of White Slave Traffic, was adopted in 1904. It was followed in 1910 by the International Convention for the Suppression of White Slave Traffic. Subsequently, in 1921, the League of Nations adopted a Convention for the Suppression of Trafficking in Women and Children, affirmed in the later International Convention for the Suppression of Traffic in Women of Full Age of 1933. The 1949 Convention for the Suppression of Traffic in Persons and of the Exploitation of the Prostitution of Others brought the former instruments under the auspices of the United Nations. 2. The Convention on the Elimination of All Forms of Discrimination Against Women 147. The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) was adopted in 1979 by the UN General Assembly. Russia ratified CEDAW on 23 January 1981 and Cyprus acceded to it on 23 July 1985. 148. Article 6 CEDAW provides that: “States Parties shall take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women.” 3. The Palermo Protocol 149. The Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (“the Palermo Protocol”), supplementing the United Nations Convention against Transnational Organised Crime 2000 was signed by Cyprus on 12 December 2000 and by Russia on 16 December 2000. It was ratified by them on 26 May 2004 and 6 August 2003 respectively. Its preamble notes: “Declaring that effective action to prevent and combat trafficking in persons, especially women and children, requires a comprehensive international approach in the countries of origin, transit and destination that includes measures to prevent such trafficking, to punish the traffickers and to protect the victims of such trafficking, including by protecting their internationally recognized human rights.” 150. Article 3(a) defines “trafficking in persons” as : “ the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs .” 151. Article 3(b) provides that the consent of a victim of trafficking to the intended exploitation is irrelevant where any of the means set out in Article 3(a) have been used. 152. Article 5 obliges States to : “ adopt such legislative and other measures as may be necessary to establish as criminal offences the conduct set forth in article 3 of this Protocol, when committed intentionally .” 153. Assistance and protection for victims of trafficking is dealt with in Article 6, which provides, in so far as relevant : “ 2. Each State Party shall ensure that its domestic legal or administrative system contains measures that provide to victims of trafficking in persons, in appropriate cases: (a) Information on relevant court and administrative proceedings; (b) Assistance to enable their views and concerns to be presented and considered at appropriate stages of criminal proceedings against offenders, in a manner not prejudicial to the rights of the defence. 3. Each State Party shall consider implementing measures to provide for the physical, psychological and social recovery of victims of trafficking in persons ... ... 5. Each State Party shall endeavour to provide for the physical safety of victims of trafficking in persons while they are within its territory. ... ” 154. Article 9, on the prevention of trafficking in persons, provides that: “ 1. States Parties shall establish comprehensive policies, programmes and other measures: (a) To prevent and combat trafficking in persons; and (b) To protect victims of trafficking in persons, especially women and children, from revictimization. 2. States Parties shall endeavour to undertake measures such as research, information and mass media campaigns and social and economic initiatives to prevent and combat trafficking in persons. 3. Policies, programmes and other measures established in accordance with this article shall, as appropriate, include cooperation with non-governmental organizations, other relevant organizations and other elements of civil society. 4. States Parties shall take or strengthen measures, including through bilateral or multilateral cooperation, to alleviate the factors that make persons, especially women and children, vulnerable to trafficking, such as poverty, underdevelopment and lack of equal opportunity. 5. States Parties shall adopt or strengthen legislative or other measures, such as educational, social or cultural measures, including through bilateral and multilateral cooperation, to discourage the demand that fosters all forms of exploitation of persons, especially women and children, that leads to trafficking. ” 155. Article 10 emphasises the need for effective exchange of information between relevant authorities and training of law enforcement and immigration officials. It provides, in so far as relevant: “ 1. Law enforcement, immigration or other relevant authorities of States Parties shall, as appropriate, cooperate with one another by exchanging information, in accordance with their domestic law, to enable them to determine: ... (c) The means and methods used by organized criminal groups for the purpose of trafficking in persons, including the recruitment and transportation of victims, routes and links between and among individuals and groups engaged in such trafficking, and possible measures for detecting them. 2. States Parties shall provide or strengthen training for law enforcement, immigration and other relevant officials in the prevention of trafficking in persons. The training should focus on methods used in preventing such trafficking, prosecuting the traffickers and protecting the rights of the victims, including protecting the victims from the traffickers. The training should also take into account the need to consider human rights and child- and gender-sensitive issues and it should encourage cooperation with non-governmental organizations, other relevant organizations and other elements of civil society. ... ” 4. European Union action to combat trafficking 156. The Council of the European Union has adopted a Framework Decision on combating trafficking in human beings ( Framework Decision 2002/JHA/629 of 19 July 2002 ). It provides for measures aimed at ensuring approximation of the criminal law of the Member States as regards the definition of offences, penalties, jurisdiction and prosecution, protection and assistance to victims. 157. In 2005, the Council adopted an action plan on best practices, standards and procedures for combating and preventing trafficking in human beings (OJ C 311/1 of 9.12.2005). The action plan proposes steps to be taken by Member States, by the Commission and by other EU bodies involving coordination of EU action, scoping the problem, preventing trafficking, reducing demand, investigating and prosecuting trafficking, protecting and supporting victims of trafficking, returns and reintegration and external relations. 5. Council of Europe general action on trafficking 158. In recent years, the Committee of Ministers of the Council of Europe has adopted three legal texts addressing trafficking in human beings for sexual exploitation: Recommendation No. R (2000) 11 of the Committee of Ministers to member states on action against trafficking in human beings for the purpose of sexual exploitation; Recommendation Rec (2001) 16 of the Committee of Ministers to member states on the protection of children against sexual exploitation; and Recommendation Rec (2002) 5 of the Committee of Ministers to member states on the protection of women against violence. These texts propose, inter alia, a pan-European strategy encompassing definitions, general measures, a methodological and action framework, prevention, victim assistance and protection, criminal measures, judicial cooperation and arrangements for international cooperation and coordination. 159. The Parliamentary Assembly of the Council of Europe has also adopted a number of texts in this area, including: Recommendation 1325 (1997) on traffic in women and forced prostitution in Council of Europe member States; Recommendation 1450 (2000) on violence against women in Europe; Recommendation 1523 (2001) on domestic slavery; Recommendation 1526 (2001) on the campaign against trafficking in minors to put a stop to the east European route: the example of Moldova; Recommendation 1545 (2002) on the campaign against trafficking in women; Recommendation 1610 (2003) on migration connected with trafficking in women and prostitution; and Recommendation 1663 (2004) on domestic slavery: servitude, au pairs and “mail-order brides”. 6 The Council of Europe Convention on Action against Trafficking in Human Beings, CETS No. 197, 16 May 2005 160. The Council of Europe Convention on Action against Trafficking in Human Beings (“the Anti-Trafficking Convention ”) was signed by Cyprus on 16 May 2005 and ratified on 24 October 2007. It entered into force in respect of Cyprus on 1 February 2008. Russia has yet to sign the Convention. A total of 41 member States of the Council of Europe have signed the Anti-Trafficking Convention and 26 have also ratified it. 161. The explanatory report accompanying the Anti-Trafficking Convention emphasises that trafficking in human beings is a major problem in Europe today which threatens the human rights and fundamental values of democratic societies. The report continues as follows: “Trafficking in human beings, with the entrapment of its victims, is the modern form of the old worldwide slave trade. It treats human beings as a commodity to be bought and sold, and to be put to forced labour, usually in the sex industry but also, for example, in the agricultural sector, declared or undeclared sweatshops, for a pittance or nothing at all. Most identified victims of trafficking are women but men also are sometimes victims of trafficking in human beings. Furthermore, many of the victims are young, sometimes children. All are desperate to make a meagre living, only to have their lives ruined by exploitation and rapacity. To be effective, a strategy for combating trafficking in human beings must adopt a multi-disciplinary approach incorporating prevention, protection of human rights of victims and prosecution of traffickers, while at the same time seeking to harmonise relevant national laws and ensure that these laws are applied uniformly and effectively.” 162. In its preamble, the Anti-Trafficking Convention asserts, inter alia, that : “ Considering that trafficking in human beings constitutes a violation of human rights and an offence to the dignity and the integrity of the human being; Considering that trafficking in human beings may result in slavery for victims; Considering that respect for victims ’ rights, protection of victims and action to combat trafficking in human beings must be the paramount objectives; ...” 163. Article 1 provides that the purposes of the Anti-Trafficking Convention are to prevent and combat trafficking in human beings, to protect the human rights of the victims of trafficking, to design a comprehensive framework for the protection and assistance of victims and witnesses and to ensure effective investigation and prosecution of trafficking. 164. Article 4(a) adopts the Palermo Protocol definition of trafficking and Article 4(b) replicates the provision in the Palermo Protocol on the irrelevance of the consent of a victim of trafficking to the exploitation ( see paragraphs 15 0 to 151 above). 165. Article 5 requires States to take measures to prevent trafficking and provides, inter alia, as follows: “1. Each Party shall take measures to establish or strengthen national co-ordination between the various bodies responsible for preventing and combating trafficking in human beings. 2. Each Party shall establish and/or strengthen effective policies and programmes to prevent trafficking in human beings, by such means as: research, information, awareness raising and education campaigns, social and economic initiatives and training programmes, in particular for persons vulnerable to trafficking and for professionals concerned with trafficking in human beings. ... ” 166. Article 6 requires States to take measures to discourage the demand that fosters trafficking and provides, in so far as relevant, as follows: “ To discourage the demand that fosters all forms of exploitation of persons, especially women and children, that leads to trafficking, each Party shall adopt or strengthen legislative, administrative, educational, social, cultural or other measures including: a. research on best practices, methods and strategies; b. raising awareness of the responsibility and important role of media and civil society in identifying the demand as one of the root causes of trafficking in human beings; c. target information campaigns involving, as appropriate, inter alia, public authorities and policy makers; ... ” 167. Article 10 sets out measures regarding training and cooperation and provides that: “ 1. Each Party shall provide its competent authorities with persons who are trained and qualified in preventing and combating trafficking in human beings, in identifying and helping victims, including children, and shall ensure that the different authorities collaborate with each other as well as with relevant support organisations, so that victims can be identified in a procedure duly taking into account the special situation of women and child victims ... 2. Each Party shall adopt such legislative or other measures as may be necessary to identify victims as appropriate in collaboration with other Parties and relevant support organisations. Each Party shall ensure that, if the competent authorities have reasonable grounds to believe that a person has been victim of trafficking in human beings, that person shall not be removed from its territory until the identification process as victim of an offence provided for in Article 18 of this Convention has been completed by the competent authorities and shall likewise ensure that that person receives the assistance provided for in Article 12, paragraphs 1 and 2. ... ” 168. Article 12 provides that: 1. Each Party shall adopt such legislative or other measures as may be necessary to assist victims in their physical, psychological and social recovery .... 2. Each Party shall take due account of the victim ’ s safety and protection needs. ... ” 169. Articles 18 to 21 require States to criminalise specified types of conduct : “ 18. Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences the conduct contained in article 4 of this Convention, when committed intentionally. 19. Each Party shall consider adopting such legislative and other measures as may be necessary to establish as criminal offences under its internal law, the use of services which are the object of exploitation as referred to in Article 4 paragraph a of this Convention, with the knowledge that the person is a victim of trafficking in human beings. 20. Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences the following conducts, when committed intentionally and for the purpose of enabling the trafficking in human beings: a. forging a travel or identity document; b. procuring or providing such a document; c. retaining, removing, concealing, damaging or destroying a travel or identity document of another person. 21(1). Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences when committed intentionally, aiding or abetting the commission of any of the offences established in accordance with Articles 18 and 20 of the present Convention. (2). Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences when committed intentionally, an attempt to commit the offences established in accordance with Articles 18 and 20, paragraph a, of this Convention. ” 170. Article 23 requires States to adopt such legislative and other measures as may be necessary to ensure that the criminal offences established in accordance with Articles 18 to 21 are punishable by effective, proportionate and dissuasive sanctions. For criminal offences established in accordance with Article 18, such sanctions are to include penalties involving deprivation of liberty which can give rise to extradition. 171. Article 27 provides that States must ensure that investigations into and prosecution of offences under the Anti-Trafficking Convention are not dependent on a report or accusation made by a victim, at least when the offence was committed in whole or in part on its territory. States must further ensure that victims of an offence in the territory of a State other than their State of residence may make a complaint before the competent authorities of their State of residence. The latter State must transmit the complaint without delay to the competent authority of the State in the territory in which the offence was committed, where the complaint must be dealt with in accordance with the internal law of the State in which the offence was committed. 172. Article 31 (1) deals with jurisdiction, and requires States to adopt such legislative and other measures as may be necessary to establish jurisdiction over any offence established in accordance with the Anti-Trafficking Convention when the offence is committed: “a. in its territory; or ... d. by one of its nationals or by a stateless person who has his or her habitual residence in its territory, if the offence is punishable under criminal law where it was committed or if the offence is committed outside the territorial jurisdiction of any State; e. against one of its nationals.” 173. States may reserve the right not to apply, or to apply only in specific cases or conditions, the jurisdiction rules in Article 31(1) (d) and (e). 174. Article 32 requires States to co-operate with each other, in accordance with the provisions of the Convention, and through application of relevant applicable international and regional instruments, to the widest extent possible, for the purpose of: “– preventing and combating trafficking in human beings; – protecting and providing assistance to victims; – investigations or proceedings concerning criminal offences established in accordance with this Convention.” C. Mutual legal assistance 1. European Convention on Mutual Assistance in Criminal Matters, CETS No. 30, 20 May 1959 (“Mutual Assistance Convention”) 175. The Mutual Assistance Convention was signed by Cyprus on 27 March 1996. It was ratified on 24 February 2000 and entered into force on 24 May 2000. The Russian Federation signed the Convention on 7 November 1996 and ratified it on 10 December 1999. It entered into force in respect of Russia on 9 March 2000. 176. Article 1 establishes an obligation on contracting parties to : “ afford each other, in accordance with the provisions of this Convention, the widest measure of mutual assistance in proceedings in respect of offences the punishment of which, at the time of the request for assistance, falls within the jurisdiction of the judicial authorities of the requesting Party”. 177. Article 3 provides that: “1. The requested Party shall execute in the manner provided for by its law any letters rogatory relating to a criminal matter and addressed to it by the judicial authorities of the requesting Party for the purpose of procuring evidence or transmitting articles to be produced in evidence, records or documents. 2. If the requesting Party desires witnesses or experts to give evidence on oath, it shall expressly so request, and the requested Party shall comply with the request if the law of its country does not prohibit it .” 178. Article 26 allows States to enter into bilateral agreements on mutual legal assistance to supplement the provisions of the Mutual Assistance Convention. 2. Treaty between the USSR and the Republic of Cyprus on Legal Assistance in civil, family and criminal law matters of 19 January 1984 (“Legal Assistance Treaty”) 179. Article 2 of the Legal Assistance Treaty (ratified by Russia following the dissolution of the USSR ) establishes a general obligation for both parties to provide each other with legal assistance in civil and criminal matters in accordance with the provisions of the Treaty. 180. Article 3 sets out the extent of the legal assistance required under the Treaty and provides as follows: “ Legal assistance in civil and criminal matters shall include service and sending of documents, supply of information on the law in force and the judicial practice and performance of specific procedural acts provided by the law of the requested Contracting Party and in particular the taking of evidence from litigants, accused persons, defendants, witnesses and experts as well as recognition and enforcement of judgments in civil matters, institution of criminal prosecutions and extradition of offenders. ” 181. The procedure for making a request is detailed in Article 5(1), which provides, in so far as relevant, that: “ A request for legal assistance shall be in writing and shall contain the following:- (1) The designation of the requesting authority. (2) The designation of the requested authority. (3) The specification of the case in relation to which legal assistance is requested and the content of the request. (4) Names and surnames of the persons to whom the request relates, their citizenship, occupation and permanent or temporary residence. ... (6) If necessary, the facts to be elucidated as well as the list of the required documents and any other evidence. (7) In criminal matters, in addition to the above, particulars of the offence and its legal definition. 182. Article 6 sets out the procedure for executing a request: “ 1. The requested authority shall provide legal assistance in the manner provided by the procedural laws and rules of its own State. However, it may execute the request in a manner specified therein if not in conflict with the law of its own State. 2. If the requested authority is not competent to execute the request for legal assistance it shall forward the request to the competent authority and shall advise the requesting authority accordingly. 3. The requested authority shall, upon request, in due time notify the requesting authority of the place and time of the execution of the request. 4. The requested authority shall notify the requesting authority in writing of the execution of the request. If the request cannot be executed the requested authority shall forthwith notify in writing the requesting authority giving the reasons for failure to execute it and shall return the documents. ” 183. Under Article 18 Contracting Parties are obliged to ensure that citizens of one State are exempted in the territory of the other State from payment of fees and costs and are afforded facilities and free legal assistance under the same conditions and to the same extent as citizens of the other State. Article 20 provides that a person requesting free legal assistance may submit a relevant application to the competent authority of the State in the territory of which he has his permanent or temporary residence. This authority will then transmit the application to the other State. 184. Chapter VI of the Treaty contains special provisions on criminal matters concerning, in particular, the institution of criminal proceedings. Article 35 (1) provides that: “ Each Contracting Party shall institute, at the request of the other Contracting Party, in accordance with and subject to the provisions of its own law, criminal proceedings against its own citizens who are alleged to have committed an offence in the territory of the other Contracting Party. 185. Article 36 sets out the procedure for the making of a request to institute criminal proceedings: “1. A request for institution of criminal proceedings shall be made in writing and contain the following:- (1) The designation of the requesting authority. (2) The description of the acts constituting the offence in connection with which the institution of criminal proceedings is requested. (3) The time and place of the committed act as precisely as possible. (4) The text of the law of the requesting Contracting Party under which the act is defined as an offence. (5) The name and surname of the suspected person, particulars regarding his citizenship, permanent or temporary residence and other information concerning him as well as, if possible, the description of the person ’ s appearance, his photograph and fingerprints. (6) Complaints, if any, by the victim of the criminal offence including any claim for damages. (7) Available information on the extent of the material damage resulting from the offence.” THE LAW I. APPLICATION OF ARTICLE 37 § 1 OF THE CONVENTION 188. Article 37 § 1 of the Convention allows the Court to strike an application out of its list of cases and provides, in so far as relevant, as follows: “1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that ... (b) the matter has been resolved; or (c) for any other reason established by the Court, it is no longer justified to continue the examination of the application. However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires. .. .” A. Submissions to the Court 1. The Cypriot Government 189. The Cypriot Government submitted that where efforts with a view to securing a friendly settlement of the case had been unsuccessful, the Court could strike an application out of the list on the basis of a unilateral declaration on the ground that there existed “ ‘ any other reason ”, as referred to in Article 37 § 1 (c) of the Convention, justifying a decision by the Court to discontinue the examination of the application. On the basis of the contents of the unilateral declaration and the ongoing domestic investigation into the circumstances of Ms Rantseva ’ s death (see paragraph 187 above), the Cypriot Government considered that the requirements of Article 37 § 1 (c) were fully met. 2. The applicant 190. The applicant requested the Court to reject the request of the Cypriot Government to strike the application out of the list of cases on the basis of the unilateral declaration. He argued that the proposals contained in the declaration did not guarantee that the responsible persons would be punished; that the declaration did not contain any general measures to prevent similar violations from taking place in the future, even though trafficking for sexual exploitation was a recognised problem in Cyprus; and that if the Court declined to deliver a judgment in the present case, the Committee of Ministers would be unable to supervise the terms proposed by the Cypriot Government. 3. Third party submissions by the AIRE Centre 191. The AIRE Centre submitted that the extent of human trafficking in Council of Europe member States and the present inadequate response of States to the problem meant that respect for human rights as defined in the Convention required continued examination of cases that raised trafficking issues where they might otherwise be struck out of the list in accordance with Article 37 § 1. 192. In its submissions, the AIRE Centre referred to the factors taken into consideration by the Court when taking a decision under Article 37 § 1 as to whether a case merits continued examination, highlighting that one such factor was “whether the issues raised are comparable to issues already determined by the Court in previous cases”. The AIRE Centre highlighted the uncertainty surrounding the extent of member States ’ obligations to protect victims of trafficking, in particular as regards protection measures not directly related to the investigation and prosecution of criminal acts of trafficking and exploitation. B. The Court ’ s assessment 1. General principles 193. The Court observes at the outset that the unilateral declaration relates to the Republic of Cyprus only. No unilateral declaration has been submitted by the Russian Federation. Accordingly, the Court will consider whether it is justified to strike out the application in respect of complaints directed towards the Cypriot authorities only. 194. The Court recalls that it may be appropriate in certain circumstances to strike out an application, or part thereof, under Article 37 § 1 on the basis of a unilateral declaration by the respondent Government even where the applicant wishes the examination of the case to be continued. Whether this is appropriate in a particular case depends on whether the unilateral declaration offers a sufficient basis for finding that respect for human rights as defined in the Convention does not require the Court to continue its examination of the case (Article 37 § 1 in fine; see also, inter alia, Tahsin Acar v. Turkey (preliminary objection) [GC], no. 26307/95, § 75, ECHR 2003 ‑ VI; and Radoszewska-Zakościelna v. Poland, no. 858/08, § 50, 20 October 2009 ). 195. Relevant factors in this respect include the nature of the complaints made, whether the issues raised are comparable to issues already determined by the Court in previous cases, the nature and scope of any measures taken by the respondent Government in the context of the execution of judgments delivered by the Court in any such previous cases, and the impact of these measures on the case at issue. It may also be material whether the facts are in dispute between the parties, and, if so, to what extent, and what prima facie evidentiary value is to be attributed to the parties ’ submissions on the facts. Other relevant factors may include whether in their unilateral declaration the respondent Government have made any admissions in relation to the alleged violations of the Convention and, if so, the scope of such admissions and the manner in which the Government intend to provide redress to the applicant. As to the last-mentioned point, in cases in which it is possible to eliminate the effects of an alleged violation and the respondent Government declare their readiness to do so, the intended redress is more likely to be regarded as appropriate for the purposes of striking out the application, the Court, as always, retaining its power to restore the application to its list as provided in Article 37 § 2 of the Convention and Rule 44 § 5 of the Rules of Court (see Tahsin Acar, cited above, § 76). 196. The foregoing factors are not intended to constitute an exhaustive list of relevant factors. Depending on the particular facts of each case, it is conceivable that further considerations may come into play in the assessment of a unilateral declaration for the purposes of Article 37 § 1 of the Convention (see Tahsin Acar, cited above, § 77). 197. Finally, the Court reiterates that its judgments serve not only to decide those cases brought before it but, more generally, to elucidate, safeguard and develop the rules instituted by the Convention, thereby contributing to the observance by the States of the engagements undertaken by them as Contracting Parties (see Ireland v. the United Kingdom, 18 January 1978, § 154, Series A no. 25; Guzzardi v. Italy, 6 November 1980, § 86, Series A no. 39; and Karner v. Austria, no. 40016/98, § 26, ECHR 2003 ‑ IX ). Although the primary purpose of the Convention system is to provide individual relief, its mission is also to determine issues on public-policy grounds in the common interest, thereby raising the general standards of protection of human rights and extending human rights jurisprudence throughout the community of the Convention States (see Karner, cited above, § 26; and Capital Bank AD v. Bulgaria, no. 49429/99, § § 78 to 79, ECHR 2005 ‑ XII (extracts) ). 2. Application of the general principles to the present case 198. In considering whether it would be appropriate to strike out the present application in so far as it concerns complaints directed against the Republic of Cyprus on the basis of the Cypriot unilateral declaration, the Court makes the following observations. 199. First, the Court emphasises the serious nature of the allegations of trafficking in human beings made in the present case, which raise issues under Articles 2, 3, 4 and 5 of the Convention. In this regard, it is noted that awareness of the problem of trafficking of human beings and the need to take action to combat it has grown in recent years, as demonstrated by the adoption of measures at international level as well as the introduction of relevant domestic legislation in a number of States (see also paragraphs 264 and 269 below). The reports of the Council of Europe ’ s Commissioner for Human Rights and the report of the Cypriot Ombudsman highlight the acute nature of the problem in Cyprus, where it is widely acknowledged that trafficking and sexual exploitation of cabaret artistes is of particular concern (see paragraphs 83, 89, 91, 94, 100 to 101 and 103 above). 200. Second, the Court draws attention to the paucity of case-law on the interpretation and application of Article 4 of the Convention in the context of trafficking cases. It is particularly significant that the Court has yet to rule on whether, and if so to what extent, Article 4 requires member States to take positive steps to protect potential victims of trafficking outside the framework of criminal investigations and prosecutions. 201. The Cypriot Government have admitted that violations of the Convention occurred in the period leading up to and following Ms Rantseva ’ s death. They have taken additional recent steps to investigate the circumstances of Ms Rantseva ’ s death and have proposed a sum in respect of just satisfaction. However, in light of the Court ’ s duty to elucidate, safeguard and develop the rules instituted by the Convention, this is insufficient to allow the Court to conclude that it is no longer justified to continue the examination of the application. In view of the observations outlined above, there is a need for continued examination of cases which raise trafficking issues. 202. In conclusion, the Court finds that respect for human rights as defined in the Convention requires the continuation of the examination of the case. Accordingly, it rejects the Cypriot Government ’ s request to strike the application out under Article 37 § 1 of the Convention. II. THE ADMISSIBILITY OF THE COMPLAINTS UNDER ARTICLES 2, 3, 4 AND 5 OF THE CONVENTION A. The Russian Government ’ s objection ratione loci 1. The parties ’ submissions 203. The Russian Government argued that the events forming the basis of the application having taken place outside its territory, the application was inadmissible ratione loci in so far as it was directed against the Russian Federation. They submitted that they had no “actual authority” over the territory of the Republic of Cyprus and that the actions of the Russian Federation were limited by the sovereignty of the Republic of Cyprus. 204. The applicant rejected this submission. He argued that in accordance with the Court ’ s judgment in Drozd and Janousek v. France and Spain, 26 June 1992, Series A no. 240, the Russian Federation could be held responsible where acts and omissions of its authorities produced effects outside its own territory. 2. The Court ’ s assessment 205. Article 1 of the Convention provides that: “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention.” 206. As the Court has previously emphasised, from the standpoint of public international law, the jurisdictional competence of a State is primarily territorial. Accordingly, a State ’ s competence to exercise jurisdiction over its own nationals abroad is subordinate to the other State ’ s territorial competence and a State may not generally exercise jurisdiction on the territory of another State without the latter ’ s consent, invitation or acquiescence. Article 1 of the Convention must be considered to reflect this ordinary and essentially territorial notion of jurisdiction (see Banković and Others v. Belgium and 16 Other Contracting States (dec.) [GC], no. 52207/99, §§ 59-61, ECHR 2001 ‑ XII ). 207. The applicant ’ s complaints against Russia in the present case concern the latter ’ s alleged failure to take the necessary measures to protect Ms Rantseva from the risk of trafficking and exploitation and to conduct an investigation into the circumstances of her arrival in Cyprus, her employment there and her subsequent death. The Court observes that such complaints are not predicated on the assertion that Russia was responsible for acts committed in Cyprus or by the Cypriot authorities. In light of the fact that the alleged trafficking commenced in Russia and in view of the obligations undertaken by Russia to combat trafficking, it is not outside the Court ’ s competence to examine whether Russia complied with any obligation it may have had to take measures within the limits of its own jurisdiction and powers to protect Ms Rantseva from trafficking and to investigate the possibility that she had been trafficked. Similarly, the applicant ’ s Article 2 complaint against the Russian authorities concerns their failure to take investigative measures, including securing evidence from witnesses resident in Russia. It is for the Court to assess in its examination of the merits of the applicant ’ s Article 2 complaint the extent of any procedural obligation incumbent on the Russian authorities and whether any such obligation was discharged in the circumstances of the present case. 208. In conclusion, the Court is competent to examine the extent to which Russia could have taken steps within the limits of its own territorial sovereignty to protect the applicant ’ s daughter from trafficking, to investigate allegations of trafficking and to investigate the circumstances leading to her death. Whether the matters complained of give rise to State responsibility in the circumstances of the present case is a question which falls to be determined by the Court in its examination of the merits of the application below. B. The Russian Government ’ s objection ratione materiae 1. The parties ’ submissions 209. The Russian Government argued that the complaint under Article 4 of the Convention was inadmissible ratione materiae as there was no slavery, servitude or forced or compulsory labour in the present case. They pointed to the fact that Ms Rantseva had entered the Republic of Cyprus voluntarily, having voluntarily obtained a work permit to allow her to work in accordance with an employment contract which she had concluded. There was no evidence that Ms Rantseva had been in servitude and unable to change her condition or that she was forced to work. The Russian Government further highlighted that Ms Rantseva had left, unimpeded, the apartment where she was residing with the other cabaret artistes. They therefore contended that there were insufficient grounds to assert that the cabaret artistes were being kept in the apartment against their will. The Russian Government added that the fact that Ms Rantseva left the police station with M.A. was insufficient to support the conclusion that Ms Rantseva was in servitude and forced to work. Had she feared for her life or safety, she could have informed the police officers while she was at the police station. 210. The applicant insisted that the treatment to which Ms Rantseva had been subjected fell within the scope of Article 4. 2. The Court ’ s assessment 211. The Court finds that the question whether the treatment about which the applicant complains falls within the scope of Article 4 is inextricably linked to the merits of this complaint. Accordingly, the Court holds that the objection ratione materiae should be joined to the merits. C. Conclusion 212. The complaints under Articles 2, 3, 4 and 5 cannot be rejected as incompatible ratione loci or ratione materiae with the provisions of the Convention concerning Russia. The Court notes, in addition, that they are not manifestly ill-founded within the meaning of Article 35 § 3. It further notes they are not inadmissible on any other grounds. They must therefore be declared admissible. III. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 213. The applicant contended that there had been a violation of Article 2 of the Convention by both the Russian and Cypriot authorities on account of the failure of the Cypriot authorities to take steps to protect the life of his daughter and the failure of the authorities of both States to conduct an effective investigation into her death. Article 2 provides, inter alia, that: “1. Everyone ’ s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. ... .” A. Alleged failure to take measures to protect against a risk to life 1. Submissions of the parties a. The applicant 214. Relying on Osman v. the United Kingdom, 28 October 1998, Reports 1998 ‑ VIII, the applicant referred to the positive obligations arising under Article 2 which required States to take preventative operational measures to protect an individual whose life was at risk from the criminal acts of another private individual where the State knew or ought to have known of a real and immediate threat to life. The applicant argued that in failing to release Ms Rantseva and handing her over instead to M.A., the Cypriot authorities had failed to take reasonable measures within their powers to avoid a real and immediate threat to Ms Rantseva ’ s life. b. The Cypriot Government 215. The Cypriot Government did not dispute that Article 2 § 1 imposed a positive obligation on the relevant authorities to take preventative operational measures to protect an individual whose life was at risk from the criminal acts of another individual. However, for such an obligation to arise, it had to be established that the authorities knew, or ought to have known, of a real and immediate risk to the life of an identified individual and that they had failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk (citing Osman, above). 216. In their written submissions, the Cypriot Government argued that there was no failure to protect the life of the applicant ’ s daughter. On the information available to the police officers who had contact with Ms Rantseva on 28 March 2001, there was no reason to suspect a real or immediate risk to Ms Rantseva ’ s life. The testimony of the police officers revealed that Ms Rantseva was calmly applying her make-up and that the behaviour of M.A. towards her appeared normal (see paragraphs 20 and 49 above ). Although Ms Rantseva had left her employment at the cabaret, she had not submitted any complaint regarding her employer or the conditions of her work. She did not make a complaint to the police officers while at the station and she did not refuse to leave with M.A.. The decision not to release Ms Rantseva but to hand her over to M.A. did not violate any obligation incumbent on the Cypriot authorities to protect her life. 217. In their subsequent unilateral declaration, the Cypriot Government acknowledged that the decision of the police officers to hand Ms Rantseva over to M.A. was in violation of the positive obligation incumbent on Cyprus under Article 2 to take preventative measures to protect Ms Rantseva from the criminal acts of another individual (see paragraph 187 above). 2. The Court ’ s assessment a. General principles 218. It is clear that Article 2 enjoins the State not only to refrain from the intentional and unlawful taking of life but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see L.C.B. v. the United Kingdom, 9 June 1998, § 36, Reports 1998 ‑ III; and Paul and Audrey Edwards, cited above, § 54 ). In the first place, this obligation requires the State to secure the right to life by putting in place effective criminal law provisions to deter the commission of offences against the person backed up by law enforcement machinery for the prevention, suppression and punishment of breaches of such provisions. However, it also implies, in appropriate circumstances, a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual (see Osman, cited above, § 115; Medova v. Russia, no. 25385/04, § 95, 15 January 2009; Opuz v. Turkey, no. 33401/02, § 128, 9 June 2009 ). 219. The Court reiterates that the scope of any positive obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities, bearing in mind the difficulties in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources. Not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. For the Court to find a violation of the positive obligation to protect life, it must be established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk ( Osman, cited above, § 116; Paul and Audrey Edwards, cited above, § 55; and Medova, cited above, § 96 ). b. Application of the general principles to the present case 220. The Court must examine whether the Cypriot authorities could have foreseen that in releasing Ms Rantseva into the custody of M.A., her life would be at real and immediate risk. 221. The Court observes that in Opuz, the responsibility of the State was engaged because the person who subsequently went on to shoot and kill the applicant ’ s mother had previously made death threats and committed acts of violence against the applicant and her mother, of which the authorities were aware ( Opuz, cited above, §§ 133 to 1 36). Conversely, in Osman, the Court found that there was no violation of Article 2 as the applicant had failed to point to any stage in the sequence of events leading to the shooting of her husband where it could be said that the police knew or ought to have known that the lives of the Osman family were at real and immediate risk ( Osman, cited above, § 121). 222. Although it is undisputed that victims of trafficking and exploitation are often forced to live and work in cruel conditions and may suffer violence and ill-treatment at the hands of their employers (see paragraphs 85, 87 to 88 and 101 above), in the absence of any specific indications in a particular case, the general risk of ill-treatment and violence cannot constitute a real and immediate risk to life. In the present case, even if the police ought to have been aware that Ms Rantseva might have been a victim of trafficking (a matter to be examined in the context of the applicant ’ s Article 4 complaint, below), there were no indications during the time spent at the police station that Ms Rantseva ’ s life was at real and immediate risk. The Court considers that particular chain of events leading to Ms Rantseva ’ s death could not have been foreseeable to the police officers when they released her into M.A. ’ s custody. Accordingly, the Court concludes that no obligation to take operational measures to prevent a risk to life arose in the present case. 223. For the above reasons, the Court concludes that there has been no violation of the Cypriot authorities ’ positive obligation to protect Ms Rantseva ’ s right to life under Article 2 of the Convention. B. The procedural obligation to carry out an effective investigation 1. Submissions of the parties a. The applicant 224. The applicant claimed that Cyprus and Russia had violated their obligations under Article 2 of the Convention to conduct an effective investigation into the circumstances of Ms Rantseva ’ s death. He pointed to alleged contradictions between the autopsies of the Cypriot and Russian authorities (see paragraph 50 above) and his requests to Cyprus, via the relevant Russian authorities, for further investigation of apparent anomalies, requests which were not followed up by the Cypriot authorities (see paragraphs 52 and 62 above). He also complained about the limited number of witness statements taken by the police (see paragraphs 31 and 33 above), highlighting that five of the seven relevant statements were either from the police officers on duty at Limassol Police Station or those present in the apartment at the time of his daughter ’ s death, persons who, in his view, had an interest in presenting a particular version of events. The applicant further argued that any investigation should not depend on an official complaint or claim from the victim ’ s relatives. He contended that his daughter clearly died in strange circumstances requiring elaboration and that an Article 2-compliant investigation was accordingly required. The Cypriot investigation did not comply with Article 2 due to the inadequacies outlined above, as well as the fact that it was not accessible to him, as a relative of the victim. 225. Specifically, as regards the inquest, the applicant complained that he was not advised of the date of the final inquest hearing, which prevented his participation in it. He was not informed of the progress of the case or of other remedies available to him. He alleged that he only received the District Court ’ s conclusion in the inquest proceedings on 16 April 2003, some 15 months after the proceedings had ended. Furthermore, the Cypriot authorities failed to provide him with free legal assistance, when the cost of legal representation in Cyprus was prohibitive for him. 226. As regards the Russian Federation, the applicant argued that the fact that his daughter was a citizen of the Russian Federation meant that even though she was temporarily resident in Cyprus and her death occurred there, the Russian Federation also had an obligation under Article 2 to investigate the circumstances of her arrival in Cyprus, her employment there and her subsequent death. He submitted that the Russian authorities should have applied to the Cypriot authorities under the Legal Assistance Treaty to initiate criminal proceedings in accordance with Articles 5 and 36 (see paragraphs 181 and 207 above), as he had requested. Instead, the Russian authorities merely sought information concerning the circumstances of Ms Rantseva ’ s death. The applicant ’ s subsequent application to the relevant authorities in Russia to initiate criminal proceedings was refused by the Chelyabinsk Prosecutor ’ s Office as Ms Rantseva died outside Russia. His repeated requests that Russian authorities take statements from two Russian nationals resident in Russia were refused as the Russian authorities considered that they were unable to take the action requested without a legal assistance request from the Cypriot authorities. The applicant concluded that these failures meant that the Russian authorities had not conducted an effective investigation into the death of his daughter, as required by Article 2 of the Convention. b. The Cypriot Government 227. In their written submissions, the Cypriot Government conceded that an obligation to conduct an effective investigation arose under Article 2 where State agents were involved in events leading to an individual ’ s death, but contended that not every tragic death required that special steps by way of inquiry should be taken. In the present case, the Cypriot authorities did not have an obligation to conduct an investigation into the circumstances of Ms Rantseva ’ s death but nonetheless did so. Although the exact circumstances leading to Ms Rantseva ’ s death remained unclear, the Cypriot Government contested the allegation that there were failures in the investigation. The investigation was carried out by the police and was capable of leading to the identification and punishment of those responsible. Reasonable steps were taken to secure relevant evidence and an inquest was held. 228. As far as the inquest was concerned, the Cypriot Government submitted that the applicant was advised by the Cypriot authorities of the date of the inquest hearing. Moreover, the inquest was adjourned twice because the applicant was not present. The Cypriot Government pointed to the delay of the Russian authorities in advising the Cypriot authorities of the applicant ’ s request for adjournment: the request only arrived four months after the inquest had been concluded. Had the court been aware of the applicant ’ s request, it might have adjourned the hearing again. All other requests by the applicant had been addressed and relevant Cypriot authorities had sought to assist the applicant where possible. In respect of the applicant ’ s complaint regarding legal aid, the Cypriot Government pointed out that the applicant did not apply through the correct procedures. He should have applied under the Law on Legal Aid; the Legal Assistance Treaty, invoked by the applicant, did not provide for legal aid but for free legal assistance, which was quite different. 229. In their unilateral declaration (see paragraph 187 above), the Cypriot Government confirmed that three independent criminal investigators had recently been appointed to investigate the circumstances of Ms Rantseva ’ s death and the extent of any criminal responsibility of any person or authority for her death. c. The Russian Government 230. The Russian Government accepted that at the relevant time, Russian criminal law did not provide for the possibility of bringing criminal proceedings in Russia against non-Russian nationals in respect of a crime committed outside Russian territory against a Russian national, although the law had since been changed. In any event, the applicant did not request the Russian authorities to institute criminal proceedings themselves but merely requested assistance in establishing the circumstances leading to his daughter ’ s death in Cyprus. Accordingly, no preliminary investigation into Ms Rantseva ’ s death was conducted in Russia and no evidence was obtained. Although the applicant requested on a number of occasions that the Russian authorities take evidence from two young Russian women who had worked with Ms Rantseva, as he was advised, the Russian authorities were unable to take the action requested in the absence of a legal assistance request from the Cypriot authorities. The Russian authorities informed the Cypriot authorities that they were ready to execute any such request but no request was forthcoming. 231. The Russian Government contended that the Russian authorities took all possible measures to establish the circumstances of Ms Rantseva ’ s death, to render assistance to the Cypriot authorities in their investigations and to protect and reinstate the applicant ’ s rights. Accordingly, they argued, Russia had fulfilled any procedural obligations incumbent on it under Article 2 of the Convention. 2. The Court ’ s assessment a. General principles 232. As the Court has consistently held, the obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State ’ s general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, requires that there should be some form of effective official investigation when individuals have been killed as a result of the use of force (see McCann and Others v. the United Kingdom, 27 September 1995, § 161, Series A no. 324; Kaya v. Turkey, 19 February 1998, § 86, Reports 1998-I; Medova v. Russia, cited above, § 103 ). The obligation to conduct an effective official investigation also arises where death occurs in suspicious circumstances not imputable to State agents (see Menson v. the United Kingdom (dec.), no. 47916/99, ECHR 2003 ‑ V ). The essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility. The authorities must act of their own motion once the matter has come to their attention. They cannot leave it to the initiative of the next-of-kin either to lodge a formal complaint or to take responsibility for the conduct of any investigative procedures (see, for example, İlhan v. Turkey [GC], no. 22277/93, § 63, ECHR 2000-VII; Paul and Audrey Edwards, cited above, § 69 ). 233. For an investigation to be effective, the persons responsible for carrying it out must be independent from those implicated in the events. This requires not only hierarchical or institutional independence but also practical independence (see Hugh Jordan v. the United Kingdom, no. 24746/94, § 120, ECHR 2001 ‑ III (extracts); and Kelly and Others v. the United Kingdom, no. 30054/96, § 114, 4 May 2001 ). The investigation must be capable of leading to the identification and punishment of those responsible (see Paul and Audrey Edwards, cited above, § 71). A requirement of promptness and reasonable expedition is implicit in the context of an effective investigation within the meaning of Article 2 of the Convention (see Yaşa v. Turkey, 2 September 1998, §§ 102-104, Reports 1998-VI; Çakıcı v. Turkey [GC], no. 23657/94, §§ 80-87 and 106, ECHR 1999-IV; and Kelly and Others, cited above, § 97 ). In all cases, the next of kin of the victim must be involved in the procedure to the extent necessary to safeguard his legitimate interests (see, for example, Güleç v. Turkey, 27 July 1998, § 82, Reports of Judgments and Decisions 1998 ‑ IV; and Kelly and Others, cited above, § 98). b. Application of the general principles to the present case i. Cyprus 234. The Court acknowledges at the outset that there is no evidence that Ms Rantseva died as a direct result of the use of force. However, as noted above (see paragraph 232 above ), this does not preclude the existence of an obligation to investigate her death under Article 2 (see also Calvelli and Ciglio v. Italy [GC], no. 32967/96, § § 48 to 50, ECHR 2002 ‑ I; and Öneryıldız v. Turkey [GC], no. 48939/99, § § 70 to 74, ECHR 2004 ‑ XII ). In light of the ambiguous and unexplained circumstances surrounding Ms Rantseva ’ s death and the allegations of trafficking, ill-treatment and unlawful detention in the period leading up to her death, the Court considers that a procedural obligation did arise in respect of the Cypriot authorities to investigate the circumstances of Ms Rantseva ’ s death. By necessity, the investigation was required to consider not only the immediate context of Ms Rantseva ’ s fall from the balcony but also the broader context of Ms Rantseva ’ s arrival and stay in Cyprus, in order to assess whether there was a link between the allegations of trafficking and Ms Rantseva ’ s subsequent death. 235. As to the adequacy of the investigation, the Court notes that the police arrived quickly and sealed off the scene within minutes. Photographs were taken and a forensic examination was carried out (see paragraph 32 above). That same morning, the police took statements from those present in the apartment when Ms Rantseva died and from the neighbour who had witnessed the fall. The police officers on duty at Limassol Police Station also made statements (see paragraph 33 above). An autopsy was carried out and an inquest was held (see paragraphs 35 to 41 above). However, there are a number of elements of the investigation which were unsatisfactory. 236. First, there was conflicting testimony from those present in the apartment which the Cypriot investigating authorities appear to have taken no steps to resolve (see paragraphs 22 to 24 and 26 to 28 above). Similarly, inconsistencies emerge from the evidence taken as to Ms Rantseva ’ s physical condition, and in particular as to the extent of the effects of alcohol on her conduct (see paragraphs 18, 20 to 21 and 24 above). There are other apparent anomalies, such as the alleged inconsistencies between the forensic reports of the Cypriot and Russian authorities and the fact that Ms Rantseva made no noise as she fell from the balcony, for which no satisfactory explanation has been provided (see paragraphs 29, 50 to 52 and 67 above). 237. Second, the verdict at the inquest recorded that Ms Rantseva had died in “strange circumstances ” in an attempt to escape from the apartment in which she was a “ guest ” (see paragraph 41 above). Despite the lack of clarity surrounding the circumstances of her death, no effort was made by the Cypriot police to question those who lived with Ms Rantseva or worked with her in the cabaret. Further, notwithstanding the striking conclusion of the inquest that Ms Rantseva was trying to escape from the apartment, no attempt was made to establish why she was trying to escape or to clarify whether she had been detained in the apartment against her will. 238. Third, aside from the initial statements of the two police officers and passport officer on duty made on 28 and 29 March 2001, there was apparently no investigation into what had occurred at the police station, and in particular why the police had handed Ms Rantseva into the custody of M.A.. It is clear from the witness statements that the AIS considered M.A. to be responsible for Ms Rantseva but the reasons for, and the appropriateness of, this conclusion have never been fully investigated. Further, the statements of the police officers do not refer to any statement being taken from Ms Rantseva and there is nothing in the investigation file to explain why this was not done; a statement was made by M.A. (see paragraph 19 above). The Court recalls that the Council of Europe Commissioner reported in 2008 that he was assured that allegations of trafficking-related corruption within the police force were isolated cases (see paragraph 102 above). However, in light of the facts of the present case, the Court considers that the authorities were under an obligation to investigate whether there was any indication of corruption within the police force in respect of the events leading to Ms Rantseva ’ s death. 239. Fourth, despite his clear request to the Cypriot authorities, the applicant was not personally advised of the date of the inquest and as a consequence was not present when the verdict was handed down. The Cypriot Government do not dispute the applicant ’ s claim that he was only advised of the inquest finding 15 months after the hearing had taken place. Accordingly, the Cypriot authorities failed to ensure that the applicant was able to participate effectively in the proceedings, despite his strenuous efforts to remain involved. 240. Fifth, the applicant ’ s continued requests for investigation, via the Russian authorities, appear to have gone unheeded by the Cypriot authorities. In particular, his requests for information as to further remedies open to him within the Cypriot legal order, as well as requests for free legal assistance from the Cypriot authorities, were ignored. The Cypriot Government ’ s response in their written observations before the Court that the request for legal assistance had been made under the wrong instrument is unsatisfactory. Given the applicant ’ s repeated requests and the gravity of the case in question, the Cypriot Government ought, at the very least, to have advised the applicant of the appropriate procedure for making a request for free legal assistance. 241. Finally, for an investigation into a death to be effective, member States must take such steps as are necessary and available in order to secure relevant evidence, whether or not it is located in the territory of the investigating State. The Court observes that both Cyprus and Russia are parties to the Mutual Assistance Convention and have, in addition, concluded the bilateral Legal Assistance Treaty (see paragraphs 175 to 185 above). These instruments set out a clear procedure by which the Cypriot authorities could have sought assistance from Russia in investigating the circumstances of Ms Rantseva ’ s stay in Cyprus and her subsequent death. The Prosecutor General of the Russian Federation provided an unsolicited undertaking that Russia would assist in any request for legal assistance by Cyprus aimed at the collection of further evidence (see paragraph 70 above). However, there is no evidence that the Cypriot authorities sought any legal assistance from Russia in the context of their investigation. In the circumstances, the Court finds the Cypriot authorities ’ refusal to make a legal assistance request to obtain the testimony of the two Russian women who worked with Ms Rantseva at the cabaret particularly unfortunate given the value of such testimony in helping to clarify matters which were central to the investigation. Although Ms Rantseva died in 2001, the applicant is still waiting for a satisfactory explanation of the circumstances leading to her death. 242. The Court accordingly finds that there has been a procedural violation of Article 2 of the Convention as regards the failure of the Cypriot authorities to conduct an effective investigation into Ms Rantseva ’ s death. ii. Russia 243. The Court recalls that Ms Rantseva ’ s death took place in Cyprus. Accordingly, unless it can be shown that there are special features in the present case which require a departure from the general approach, the obligation to ensure an effective official investigation applies to Cyprus alone (see, mutatis mutandis, Al-Adsani v. the United Kingdom [GC], no. 35763/97, § 38, ECHR 2001 ‑ XI ). 244. As to the existence of special features, the applicant relies on the fact that Ms Rantseva was a Russian national. However, the Court does not consider that Article 2 requires member States ’ criminal laws to provide for universal jurisdiction in cases involving the death of one of their nationals. There are no other special features which would support the imposition of a duty on Russia to conduct its own investigation. Accordingly, the Court concludes that there was no free-standing obligation incumbent on the Russian authorities under Article 2 of the Convention to investigate Ms Rantseva ’ s death. 245. However, the corollary of the obligation on an investigating State to secure evidence located in other jurisdictions is a duty on the State where evidence is located to render any assistance within its competence and means sought under a legal assistance request. In the present case, as noted above, the Prosecutor General of the Russian Federation, referring to the evidence of the two Russian women, expressed willingness to comply with any mutual legal assistance request forwarded to the Russian authorities and to organise the taking of the witness testimony, but no such request was forthcoming (see paragraph 241 above). The applicant argued that the Russian authorities should have proceeded to interview the two women notwithstanding the absence of any request from the Cypriot authorities. However, the Court recalls that the responsibility for investigating Ms Rantseva ’ s death lay with Cyprus. In the absence of a legal assistance request, the Russian authorities were not required under Article 2 to secure the evidence themselves. 246. As to the applicant ’ s complaint that the Russian authorities failed to request the initiation of criminal proceedings, the Court observes that the Russian authorities made extensive use of the opportunities presented by mutual legal assistance agreements to press for action by the Cypriot authorities (see, for example, paragraphs 48, 52, 55, 57 and 61 to 62 above). In particular, by letter dated 11 December 2001, they requested that further investigation be conducted into Ms Rantseva ’ s death, that relevant witnesses be interviewed and that the Cypriot authorities bring charges of murder, kidnapping or unlawful deprivation of freedom in respect of Ms Rantseva ’ s death (see paragraph 52 above). By letter dated 27 December 2001, a specific request was made to institute criminal proceedings (see paragraph 53 above). The request was reiterated on several occasions. 247. In conclusion, the Court finds that there has been no procedural violation of Article 2 by the Russian Federation. IV. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 248. The applicant alleged a violation of Article 3 of the Convention by the Cypriot authorities in respect of their failure to take steps to protect Ms Rantseva from ill-treatment and to investigate whether Ms Rantseva was subject to inhuman or degrading treatment in the period leading up to her death. Article 3 provides that: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. The parties ’ submissions 1. The applicant 249. The applicant argued that a positive obligation arose in the present case to protect Ms Rantseva from ill-treatment from private individuals. He contended that the two forensic reports conducted following Ms Rantseva ’ s death revealed that the explanation of her death did not accord with the injuries recorded. He argued that the witness testimony gathered did not provide a satisfactory response to the question whether there were injuries present on Ms Rantseva ’ s body prior to her death. Despite this, no investigation was conducted by the Cypriot authorities into whether Ms Rantseva had been subjected to inhuman or degrading treatment. Further, no steps were taken to avoid the risk of ill treatment to Ms Rantseva in circumstances where the authorities knew or ought to have known of a real and immediate risk. Accordingly, in the applicant ’ s submission, there was a breach of Article 3 of the Convention. 2. The Cypriot Government 250. In their written submissions, the Cypriot Government denied that any violation of Article 3 had occurred. They pointed out that nothing in the investigation file suggested that Ms Rantseva had been subjected to inhuman or degrading treatment prior to her death. In any event, a thorough investigation, capable of leading to the identification and punishment of those responsible, was conducted into the circumstances of Ms Rantseva ’ s death. The investigation therefore complied with Article 3. 251. In their subsequent unilateral declaration (see paragraph 187 above), the Cypriot Government acknowledged that there had been a breach of the procedural obligation arising under Article 3 of the Convention in so far as the police investigation into whether Ms Rantseva was subjected to inhuman or degrading treatment prior to her death was ineffective. They also confirmed that three independent investigators had been appointed to investigate the circumstances of Ms Rantseva ’ s employment and stay in Cyprus and whether she had been subjected to inhuman or degrading treatment. B. The Court ’ s assessment 252. The Court notes that there is no evidence that Ms Rantseva was subjected to ill-treatment prior to her death. However, it is clear that the use of violence and the ill-treatment of victims are common features of trafficking (see paragraphs 85, 87 to 88 and 101 above). The Court therefore considers that, in the absence of any specific allegations of ill-treatment, any inhuman or degrading treatment suffered by Ms Rantseva prior to her death was inherently linked to the alleged trafficking and exploitation. Accordingly, the Court concludes that it is not necessary to consider separately the applicant ’ s Article 3 complaint and will deal with the general issues raised in the context of its examination of the applicant ’ s complaint under Article 4 of the Convention. V. ALLEGED VIOLATION OF ARTICLE 4 OF THE CONVENTION 253. The applicant alleged a violation of Article 4 of the Convention by both the Russian and Cypriot authorities in light of their failure to protect his daughter from being trafficked and their failure to conduct an effective investigation into the circumstances of her arrival in Cyprus and the nature of her employment there. Article 4 provides, in so far as relevant, that: “1. No one shall be held in slavery or servitude. 2. No one shall be required to perform forced or compulsory labour. ... ” A. Submissions of the parties 1. The applicant 254. Referring to Siliadin v. France, no. 73316/01, ECHR 2005 ‑ VII, and the Anti-Trafficking Convention (see paragraphs 162 to 174, above), the applicant contended that the Cypriot authorities were under an obligation to adopt laws to combat trafficking and to establish and strengthen policies and programmes to combat trafficking. He pointed to the reports of the Council of Europe ’ s Commissioner on Human Rights (see paragraphs 91 to 104 above), which he said demonstrated that there had been a deterioration in the situation of young foreign women moving to Cyprus to work as cabaret artistes. He concluded that the obligations incumbent on Cyprus to combat trafficking had not been met. In particular, the applicant pointed out that the Cypriot authorities were unable to explain why they had handed Ms Rantseva over to her former employer at the police station instead of releasing her (see paragraph 82 above). He contended that in so doing, the Cypriot authorities had failed to take measures to protect his daughter from trafficking. They had also failed to conduct any investigation into whether his daughter had been a victim of trafficking or had been subjected to sexual or other exploitation. Although Ms Rantseva had entered Cyprus voluntarily to work in the cabaret, the Court had established that prior consent, without more, does not negate a finding of compulsory labour (referring to Van der Mussele v. Belgium, 23 November 1983, § 36, Series A no. 70 ). 255. In respect of Russia, the applicant pointed out that at the relevant time, the Russian Criminal Code did not contain provisions which expressly addressed trafficking in human beings. He argued that the Russian authorities were aware of the particular problem of young women being trafficked to Cyprus to work in the sex industry. Accordingly, the Russian Federation was under an obligation to adopt measures to prevent the trafficking and exploitation of Russian women but had failed to do so. In the present case, it was under a specific obligation to investigate the circumstances of Ms Rantseva ’ s arrival in Cyprus and the nature of her employment there, but no such investigation had been carried out. 2. The Cypriot Government 256. In their written observations, the Cypriot Government confirmed that no measures were taken in the period prior to or following Ms Rantseva ’ s death to ascertain whether she had been a victim of trafficking in human beings or whether she had been subjected to sexual or other forms of exploitation. However they denied that there had been a violation of Article 4 of the Convention. They conceded that there were positive obligations on the State which required the penalisation and effective prosecution of any act aimed at maintaining a person in a situation of slavery, servitude or forced or compulsory labour. However, they argued by analogy with Articles 2 and 3 that positive obligations only arose where the authorities knew or ought to have known of a real and immediate risk that an identified individual was being held in such a situation. These positive obligations would only be violated where the authorities subsequently failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. 257. In the present case, there was nothing in the investigation file, nor was there any other evidence, to indicate that Ms Rantseva was held in slavery or servitude or was required to perform forced or compulsory labour. The Cypriot Government further pointed to the fact that no complaint had been lodged with the domestic authorities by the applicant that his daughter had been a victim of trafficking or exploitation and that none of the correspondence from the Russian authorities made any reference to such a complaint. Ms Rantseva herself had made no allegations of that nature prior to her death and the note she left in her apartment saying she was tired and was going back to Russia (see paragraph 17 above) was inadequate to support any such allegations. The Government claimed that the first time that any complaint of this nature was made to the authorities was on 13 April 2006, by a Russian Orthodox priest in Limassol. They argued that the Russian authorities had failed to cooperate with the Cypriot authorities and take witness statements from two Russian women who had worked with Ms Rantseva at the cabaret. 258. In their subsequent unilateral declaration (see paragraph 187 above), the Cypriot Government accepted that they had violated their positive obligations under Article 4 in failing to take any measures to ascertain whether Ms Rantseva had been a victim of trafficking in human beings or had been subjected to sexual or any other kind of exploitation. They also confirmed that three independent investigators had been appointed to investigate the circumstances of Ms Rantseva ’ s employment and stay in Cyprus and whether there was any evidence that she was a victim of trafficking or exploitation. 3. The Russian Government 259. As noted above, the Russian Government contested that Ms Rantseva ’ s treatment in the present case fell within the scope of Article 4 (see paragraph 209 above). 260. On the merits, the Russian Government agreed that the positive obligations arising under Article 4 required member States to ensure that residents were not being kept in slavery or servitude or being forced to work. Where such a case did occur, member States were required to put in place an effective framework for the protection and reinstatement of victims ’ rights and for the prosecution of guilty persons. However, in so far as the applicant ’ s complaint was directed against Russia, his argument was that the Russian authorities ought to have put in place a system of preventative measures to protect citizens going abroad. The Russian Government pointed out that any such measures would have had to strike a balance between Article 4 and the right to free movement guaranteed by Article 2 of Protocol No. 4 of the Convention, which provides that “[e]veryone shall be free to leave any country, including his own”. They also argued that the scope of any such measures was significantly restricted by the need to respect the sovereignty of the State to which the citizen wished to travel. 261. According to the Russian Government, there was a wealth of measures set out in Russian criminal law to prevent violations of Article 4, to protect victims and to prosecute perpetrators. Although at the relevant time Russian criminal law did not contain provisions on human trafficking and slave labour, such conduct would nonetheless have fallen within the definitions of other crimes such as threats to kill or cause grave harm to health, abduction, unlawful deprivation of liberty and sexual crimes (see paragraphs 133 to 135 ). The Russian Government also pointed to various international treaties ratified by the Russian Federation, including the Slavery Convention 1926 (see paragraphs 137 to 141 above) and the Palermo Protocol 2000 (see paragraphs 149 to 155 above), and highlighted that Russia had signed up to a number of mutual legal assistance agreements (see paragraphs 175 to 185 above). In the present case, they had taken active measures to press for the identification and punishment of guilty persons within the framework of mutual legal assistance treaties. They further explained that on 27 July 2006, the application of the Criminal Code was extended to allow the prosecution of non-nationals who had committed crimes against Russian nationals outside Russian territory. However, the exercise of this power depended on the consent of the State in whose territory the offence was committed. 262. As regards the departure of Ms Rantseva for Cyprus, the Russian authorities pointed out that they only became aware of a citizen leaving Russia at the point at which an individual crossed the border. Where entry requirements of the State of destination were complied with, and in the absence of any circumstances preventing the exit, the Russian authorities were not permitted to prohibit a person from exercising his right of free movement. Accordingly, the Russian authorities could only make recommendations and warn its citizens against possible dangers. They did provide warnings, via the media, as well as more detailed information regarding the risk factors. 263. The Russian Government also requested the Court to consider that there had been no previous findings of a violation of Article 4 against Cyprus. They submitted that they were entitled to take this into consideration in the development of their relations with Cyprus. 4. Third party submissions a. Interights 264. Interights highlighted the growing awareness of human trafficking and the adoption of a number of international and regional instruments seeking to combat it. However, they considered national policies and measures in the field to be at times inadequate and ineffective. They argued that the paramount requirement for any legal system effectively to address human trafficking was recognition of the need for a multidisciplinary approach; cooperation among States; and a legal framework with an integrated human rights approach. 265. Interights emphasised that a distinctive element of human trafficking was the irrelevance of the victim ’ s consent to the intended exploitation where any of the means of coercion listed in the Palermo Protocol had been used (see paragraph 151 above). Accordingly, a person who was aware that she was to work in the sex industry was not excluded by virtue of that awareness from being a victim of trafficking. Of further importance was the distinction between smuggling, which concerned primarily the protection of the State against illegal migration, and trafficking, which was a crime against individuals and did not necessarily involve a cross-border element. 266. Asserting that human trafficking was a form of modern-day slavery, Interights highlighted the conclusions of the International Criminal Tribunal for the Former Yugoslavia in the case of Prosecutor v Kunarac et al (see paragraphs 142 to 143 above) and argued that the necessary consequence of that judgment was that the definition of slavery did not require a right of ownership over a person to exist but merely that one or more of the powers attached to such a right be present. Thus the modern-day understanding of the term “slavery” could include situations where the victim was subject to violence and coercion thereby giving the perpetrator total control over the victim. 267. Interights addressed the positive obligations of member States under the Convention in the context of trafficking in human beings. In particular, there was, Interights contended, an obligation to enact appropriate legislation on trafficking in human beings, as set out in the Anti-Trafficking Convention (see paragraphs 160 to 174 above) and supported by the case-law of the Court. Such legislation was required to criminalise trafficking in human beings, establishing liability of legal as well as natural persons; to introduce review procedures in respect of the licensing and operation of businesses often used as a cover for human trafficking; and to establish appropriate penalties. Other positive obligations included obligations to discourage demand for human trafficking, to ensure an adequate law enforcement response to identify and eradicate any involvement of law enforcement officials in human trafficking offences and build victims ’ confidence in the police and judicial systems and to ensure that the identification of victims of trafficking took place efficiently and effectively by introducing relevant training. Research on best practices, methods and strategies, raising awareness in the media and civil society, information campaigns involving public authorities and policy makers, educational programmes and targeting sex tourism were also areas of possible State action identified by Interights. 268. Finally, Interights argued that there was an implied positive obligation on States to carry out an effective and diligent investigation into allegations of trafficking. Such investigation should comply with the conditions of investigations required under Article 2 of the Convention. b. The AIRE Centre 269. The AIRE Centre highlighted the increasing number of people, the majority of whom were women and children, who fell victim to trafficking for the purposes of sexual or other exploitation each year. They pointed to the severe physical and psychological consequences for victims, which frequently rendered them too traumatised to present themselves as victims of trafficking to the relevant authorities. They referred in particular to the conclusions of a report by the U.S. State Department in 2008, Trafficking in Persons Report, which found that Cyprus had failed to provide evidence that it had increased its efforts to combat severe forms of trafficking in persons from the previous year (see paragraph 106 above). 270. More generally, the AIRE Centre highlighted their concern that the rights of victims of human trafficking were often subordinated to other goals in the fight against trafficking. International and regional instruments on human trafficking often lacked practical and effective rights for the protection of victims. Apart from requirements regarding the investigation and prosecution of trafficking offences, the provisions of the Palermo Protocol on protection of victims were, the AIRE Centre argued, “generally either hortatory or aspirational”, obliging States to “consider” or “endeavour to” introduce certain measures. 271. Finally, the AIRE Centre noted that the jurisprudence of supervisory bodies for international instruments against trafficking had yet to address fully the extent and content of positive obligations owed by States in the circumstances arising in the present application. As regards the jurisprudence of this Court, the AIRE Centre noted that although the Court had already been called upon to consider the extent of the application of Article 4 in a trafficking case ( Siliadin, cited above ), that case had dealt exclusively with the failure of the State to put in place adequate criminal law provisions to prevent and punish the perpetrators. Referring to the case-law developed in the context of Articles 2, 3 and 8 of the Convention, the AIRE Centre argued that States had a positive obligation to provide protection where they knew or ought to have known that an individual was, or was at risk of being, a victim of human trafficking. The particular measures required would depend on the circumstances but States were not permitted to leave such an individual unprotected or to return her to a situation of trafficking and exploitation. B. The Court ’ s assessment 1. Application of Article 4 of the Convention 272. The first question which arises is whether the present case falls within the ambit of Article 4. The Court recalls that Article 4 makes no mention of trafficking, proscribing “slavery”, “servitude” and “forced and compulsory labour”. 273. The Court has never considered the provisions of the Convention as the sole framework of reference for the interpretation of the rights and freedoms enshrined therein ( Demir and Baykara v. Turkey [GC], no. 34503/97, § 67, 12 November 2008 ). It has long stated that one of the main principles of the application of the Convention provisions is that it does not apply them in a vacuum (see Loizidou v. Turkey, 18 December 1996, Reports of Judgments and Decisions 1996-VI; and Öcalan v. Turkey [GC], no. 46221/99, § 163, ECHR 2005 ‑ IV ). As an international treaty, the Convention must be interpreted in the light of the rules of interpretation set out in the Vienna Convention of 23 May 1969 on the Law of Treaties. 274. Under that Convention, the Court is required to ascertain the ordinary meaning to be given to the words in their context and in the light of the object and purpose of the provision from which they are drawn (see Golder v. the United Kingdom, 21 February 1975, § 29, Series A no. 18; Loizidou, cited above, § 43; and Article 31 § 1 of the Vienna Convention). The Court must have regard to the fact that the context of the provision is a treaty for the effective protection of individual human rights and that the Convention must be read as a whole, and interpreted in such a way as to promote internal consistency and harmony between its various provisions ( Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, § 48, ECHR 2005-X). Account must also be taken of any relevant rules and principles of international law applicable in relations between the Contracting Parties and the Convention should so far as possible be interpreted in harmony with other rules of international law of which it forms part (see Al-Adsani v. the United Kingdom [GC], no. 35763/97, § 55, ECHR 2001 ‑ XI; Demir and Baykara, cited above, § 67; Saadi v. the United Kingdom [GC], no. 13229/03, § 62, ECHR 2008 ‑ ...; and Article 31 para. 3 (c) of the Vienna Convention). 275. Finally, the Court emphasises that the object and purpose of the Convention, as an instrument for the protection of individual human beings, requires that its provisions be interpreted and applied so as to make its safeguards practical and effective (see, inter alia, Soering v. the United Kingdom, 7 July 1989, § 87, Series A no. 161; and Artico v. Italy, 13 May 1980, § 33, Series A no. 37). 276. In Siliadin, considering the scope of “slavery” under Article 4, the Court referred to the classic definition of slavery contained in the 1926 Slavery Convention, which required the exercise of a genuine right of ownership and reduction of the status of the individual concerned to an “object” ( Siliadin, cited above, § 122). With regard to the concept of “servitude”, the Court has held that what is prohibited is a “particularly serious form of denial of freedom” (see Van Droogenbroeck v. Belgium, Commission ’ s report of 9 July 1980, §§ 78-80, Series B no. 44). The concept of “servitude” entails an obligation, under coercion, to provide one ’ s services, and is linked with the concept of “slavery” (see Seguin v. France (dec.), no. 42400/98, 7 March 2000; and Siliadin, cited above, § 124 ). For “forced or compulsory labour” to arise, the Court has held that there must be some physical or mental constraint, as well as some overriding of the person ’ s will ( Van der Mussele v. Belgium, 23 November 1983, § 34, Series A no. 70; Siliadin, cited above, § 117). 277. The absence of an express reference to trafficking in the Convention is unsurprising. The Convention was inspired by the Universal Declaration of Human Rights, proclaimed by the General Assembly of the United Nations in 1948, which itself made no express mention of trafficking. In its Article 4, the Declaration prohibited “ slavery and the slave trade in all their forms”. However, in assessing the scope of Article 4 of the Convention, sight should not be lost of the Convention ’ s special features or of the fact that it is a living instrument which must be interpreted in the light of present-day conditions. The increasingly high standards required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably require greater firmness in assessing breaches of the fundamental values of democratic societies (see, among many other authorities, Selmouni v. France [GC], no. 25803/94, § 101, ECHR 1999 ‑ V; Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 71, ECHR 2002 ‑ VI; and Siliadin, cited above, § 121). 278. The Court notes that trafficking in human beings as a global phenomenon has increased significantly in recent years (see paragraphs 89, 100, 103 and 269 above). In Europe, its growth has been facilitated in part by the collapse of former Communist blocs. The conclusion of the Palermo Protocol in 2000 and the Anti-Trafficking Convention in 2005 demonstrate the increasing recognition at international level of the prevalence of trafficking and the need for measures to combat it. 279. The Court is not regularly called upon to consider the application of Article 4 and, in particular, has had only one occasion to date to consider the extent to which treatment associated with trafficking fell within the scope of that Article ( Siliadin, cited above). In that case, the Court concluded that the treatment suffered by the applicant amounted to servitude and forced and compulsory labour, although it fell short of slavery. In light of the proliferation of both trafficking itself and of measures taken to combat it, the Court considers it appropriate in the present case to examine the extent to which trafficking itself may be considered to run counter to the spirit and purpose of Article 4 of the Convention such as to fall within the scope of the guarantees offered by that Article without the need to assess which of the three types of proscribed conduct are engaged by the particular treatment in the case in question. 280. The Court observes that the International Criminal Tribunal for the Former Yugoslavia concluded that the traditional concept of “slavery” has evolved to encompass various contemporary forms of slavery based on the exercise of any or all of the powers attaching to the right of ownership (see paragraph 142 above). In assessing whether a situation amounts to a contemporary form of slavery, the Tribunal held that relevant factors included whether there was control of a person ’ s movement or physical environment, whether there was an element of psychological control, whether measures were taken to prevent or deter escape and whether there was control of sexuality and forced labour (see paragraph 143 above). 281. The Court considers that trafficking in human beings, by its very nature and aim of exploitation, is based on the exercise of powers attaching to the right of ownership. It treats human beings as commodities to be bought and sold and put to forced labour, often for little or no payment, usually in the sex industry but also elsewhere (see paragraphs 101 and 161 above). It implies close surveillance of the activities of victims, whose movements are often circumscribed (see paragraphs 85 and 101 above). It involves the use of violence and threats against victims, who live and work under poor conditions (see paragraphs 85, 87 to 88 and 101 above). It is described by Interights and in the explanatory report accompanying the Anti-Trafficking Convention as the modern form of the old worldwide slave trade (see paragraphs 161 and 266 above). The Cypriot Ombudsman referred to sexual exploitation and trafficking taking place “under a regime of modern slavery” (see paragraph 84 above). 282. There can be no doubt that trafficking threatens the human dignity and fundamental freedoms of its victims and cannot be considered compatible with a democratic society and the values expounded in the Convention. In view of its obligation to interpret the Convention in light of present-day conditions, the Court considers it unnecessary to identify whether the treatment about which the applicant complains constitutes “slavery”, “servitude” or “forced and compulsory labour”. Instead, the Court concludes that trafficking itself, within the meaning of Article 3(a) of the Palermo Protocol and Article 4(a) of the Anti-Trafficking Convention, falls within the scope of Article 4 of the Convention. The Russian Government ’ s objection of incompatibility ratione materiae is accordingly dismissed. 2. General principles of Article 4 283. The Court reiterates that, together with Articles 2 and 3, Article 4 enshrines one of the basic values of the democratic societies making up the Council of Europe ( Siliadin, cited above, § 82). Unlike most of the substantive clauses of the Convention, Article 4 makes no provision for exceptions and no derogation from it is permissible under Article 15 § 2 even in the event of a public emergency threatening the life of the nation. 284. In assessing whether there has been a violation of Article 4, the relevant legal or regulatory framework in place must be taken into account (see, mutatis mutandis, Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 93, ECHR 2005 ‑ VII ). The Court considers that the spectrum of safeguards set out in national legislation must be adequate to ensure the practical and effective protection of the rights of victims or potential victims of trafficking. Accordingly, in addition to criminal law measures to punish traffickers, Article 4 requires member States to put in place adequate measures regulating businesses often used as a cover for human trafficking. Furthermore, a State ’ s immigration rules must address relevant concerns relating to encouragement, facilitation or tolerance of trafficking (see, mutatis mutandis, Guerra and Others v. Italy, 19 February 1998, § § 58 to 60, Reports of Judgments and Decisions 1998 ‑ I; Z and Others v. the United Kingdom [GC], no. 29392/95, § § 73 to 74, ECHR 2001 ‑ V; and Nachova and Others, cited above, §§ 96 to 97 and 99-102 ). 285. In its Siliadin judgment, the Court confirmed that Article 4 entailed a specific positive obligation on member States to penalise and prosecute effectively any act aimed at maintaining a person in a situation of slavery, servitude or forced or compulsory labour (cited above, §§ 89 and 112). In order to comply with this obligation, member States are required to put in place a legislative and administrative framework to prohibit and punish trafficking. The Court observes that the Palermo Protocol and the Anti-Trafficking Convention refer to the need for a comprehensive approach to combat trafficking which includes measures to prevent trafficking and to protect victims, in addition to measures to punish traffickers (see paragraphs 149 and 163 above). It is clear from the provisions of these two instruments that the Contracting States, including almost all of the member States of the Council of Europe, have formed the view that only a combination of measures addressing all three aspects can be effective in the fight against trafficking (see also the submissions of Interights and the AIRE Centre at paragraphs 267 and 271 above). Accordingly, the duty to penalise and prosecute trafficking is only one aspect of member States ’ general undertaking to combat trafficking. The extent of the positive obligations arising under Article 4 must be considered within this broader context. 286. As with Articles 2 and 3 of the Convention, Article 4 may, in certain circumstances, require a State to take operational measures to protect victims, or potential victims, of trafficking (see, mutatis mutandis, Osman, cited above, § 115; and Mahmut Kaya v. Turkey, no. 22535/93, § 115, ECHR 2000 ‑ III ). In order for a positive obligation to take operational measures to arise in the circumstances of a particular case, it must be demonstrated that the State authorities were aware, or ought to have been aware, of circumstances giving rise to a credible suspicion that an identified individual had been, or was at real and immediate risk of being, trafficked or exploited within the meaning of Article 3(a) of the Palermo Protocol and Article 4(a) of the Anti-Trafficking Convention. In the case of an answer in the affirmative, there will be a violation of Article 4 of the Convention where the authorities fail to take appropriate measures within the scope of their powers to remove the individual from that situation or risk (see, mutatis mutandis, Osman, cited above, §§116 to 117; and Mahmut Kaya, cited above, §§ 115 to 116 ). 287. Bearing in mind the difficulties involved in policing modern societies and the operational choices which must be made in terms of priorities and resources, the obligation to take operational measures must, however, be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities (see, mutatis mutandis, Osman, cited above, § 116). It is relevant to the consideration of the proportionality of any positive obligation arising in the present case that the Palermo Protocol, signed by both Cyprus and the Russian Federation in 2000, requires States to endeavour to provide for the physical safety of victims of trafficking while in their territories and to establish comprehensive policies and programmes to prevent and combat trafficking (see paragraphs 153 to 154 above). States are also required to provide relevant training for law enforcement and immigration officials (see paragraph 155 above). 288. Like Articles 2 and 3, Article 4 also entails a procedural obligation to investigate situations of potential trafficking. The requirement to investigate does not depend on a complaint from the victim or next-of-kin: once the matter has come to the attention of the authorities they must act of their own motion (see, mutatis mutandis, Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 69, ECHR 2002 ‑ II ). For an investigation to be effective, it must be independent from those implicated in the events. It must also be capable of leading to the identification and punishment of individuals responsible, an obligation not of result but of means. A requirement of promptness and reasonable expedition is implicit in all cases but where the possibility of removing the individual from the harmful situation is available, the investigation must be undertaken as a matter of urgency. The victim or the next-of-kin must be involved in the procedure to the extent necessary to safeguard their legitimate interests (see, mutatis mutandis, Paul and Audrey Edwards, cited above, §§ 70 to 73 ). 289. Finally, the Court reiterates that trafficking is a problem which is often not confined to the domestic arena. When a person is trafficked from one State to another, trafficking offences may occur in the State of origin, any State of transit and the State of destination. Relevant evidence and witnesses may be located in all States. Although the Palermo Protocol is silent on the question of jurisdiction, the Anti-Trafficking Convention explicitly requires each member State to establish jurisdiction over any trafficking offence committed in its territory (see paragraph 172 above). Such an approach is, in the Court ’ s view, only logical in light of the general obligation, outlined above, incumbent on all States under Article 4 of the Convention to investigate alleged trafficking offences. In addition to the obligation to conduct a domestic investigation into events occurring on their own territories, member States are also subject to a duty in cross-border trafficking cases to cooperate effectively with the relevant authorities of other States concerned in the investigation of events which occurred outside their territories. Such a duty is in keeping with the objectives of the member States, as expressed in the preamble to the Palermo Protocol, to adopt a comprehensive international approach to trafficking in the countries of origin, transit and destination (see paragraph 149 above). It is also consistent with international agreements on mutual legal assistance in which the respondent States participate in the present case (see paragraphs 175 to 185 above). 3. Application of the general principles to the present case Cyprus i. Positive obligation to put in place an appropriate legislative and administrative framework 290. The Court observes that in Cyprus legislation prohibiting trafficking and sexual exploitation was adopted in 2000 (see paragraphs 127 to 131 above). The law reflects the provisions of the Palermo Protocol and prohibits trafficking and sexual exploitation, with consent providing no defence to the offence. Severe penalties are set out in the legislation. The law also provides for a duty to protect victims, inter alia through the appointment of a guardian of victims. Although the Ombudsman criticised the failure of the authorities to adopt practical implementing measures, she considered the law itself to be satisfactory (see paragraph 90 above). The Council of Europe Commissioner also found the legal framework established by Law 3(1) 2000 to be “suitable” (see paragraph 92 above). Notwithstanding the applicant ’ s complaint as to the inadequacy of Cypriot trafficking legislation, the Court does not consider that the circumstances of the present case give rise to any concern in this regard. 291. However, as regards the general legal and administrative framework and the adequacy of Cypriot immigration policy, a number of weaknesses can be identified. The Council of Europe Commissioner for Human Rights noted in his 2003 report that the absence of an immigration policy and legislative shortcomings in this respect have encouraged the trafficking of women to Cyprus (see paragraph 91 above). He called for preventive control measures to be adopted to stem the flow of young women entering Cyprus to work as cabaret artistes (see paragraph 94 above). In subsequent reports, the Commissioner reiterated his concerns regarding the legislative framework, and in particular criticised the system whereby cabaret managers were required to make the application for an entry permit for the artiste as rendering the artiste dependent on her employer or agent and increasing her risk of falling into the hands of traffickers (see paragraph 100 above). In his 2008 report, the Commissioner criticised the artiste visa regime as making it very difficult for law enforcement authorities to take the necessary steps to combat trafficking, noting that the artiste permit could be perceived as contradicting the measures taken against trafficking or at least as rendering them ineffective (see also the report of the U.S. State Department at paragraphs 105 and 107 above). The Commissioner expressed regret that, despite concerns raised in previous reports and the Government ’ s commitment to abolish it, the artiste work permit was still in place (see paragraph 103 above). Similarly, the Ombudsman, in her 2003 report, blamed the artiste visa regime for the entry of thousands of young foreign women into Cyprus, where they were exploited by their employers under cruel living and working conditions (see paragraph 89 above). 292. Further, the Court emphasises that while an obligation on employers to notify the authorities when an artiste leaves her employment (see paragraph 117 above) is a legitimate measure to allow the authorities to monitor the compliance of immigrants with their immigration obligations, responsibility for ensuring compliance and for taking steps in cases of non-compliance must remain with the authorities themselves. Measures which encourage cabaret owners and managers to track down missing artistes or in some other way to take personal responsibility for the conduct of artistes are unacceptable in the broader context of trafficking concerns regarding artistes in Cyprus. Against this backdrop, the Court considers that the practice of requiring cabaret owners and managers to lodge a bank guarantee to cover potential future costs associated with artistes which they have employed (see paragraph 115 above) particularly troubling. The separate bond signed in Ms Rantseva ’ s case is of equal concern (see paragraph 15 above), as is the unexplained conclusion of the AIS that M.A. was responsible for Ms Rantseva and was therefore required to come and collect her from the police station (see paragraph 20 above). 293. In the circumstances, the Court concludes that the regime of artiste visas in Cyprus did not afford to Ms Rantseva practical and effective protection against trafficking and exploitation. There has accordingly been a violation of Article 4 in this regard. ii. Positive obligation to take protective measures 294. In assessing whether a positive obligation to take measures to protect Ms Rantseva arose in the present case, the Court considers the following to be significant. First, it is clear from the Ombudsman ’ s 2003 report that here has been a serious problem in Cyprus since the 1970s involving young foreign women being forced to work in the sex industry (see paragraph 83 above). The report further noted the significant increase in artistes coming from former Soviet countries following the collapse of the USSR (see paragraph 84 above). In her conclusions, the Ombudsman highlighted that trafficking was able to flourish in Cyprus due to the tolerance of the immigration authorities (see paragraph 89 above). In his 2006 report, the Council of Europe ’ s Commissioner for Human Rights also noted that the authorities were aware that many of the women who entered Cyprus on artiste ’ s visas would work in prostitution (see paragraph 96 above). There can therefore be no doubt that the Cypriot authorities were aware that a substantial number of foreign women, particularly from the ex-USSR, were being trafficked to Cyprus on artistes visas and, upon arrival, were being sexually exploited by cabaret owners and managers. 295. Second, the Court emphasises that Ms Rantseva was taken by her employer to Limassol police station. Upon arrival at the police station, M.A. told the police that Ms Rantseva was a Russian national and was employed as a cabaret artiste. Further, he explained that she had only recently arrived in Cyprus, had left her employment without warning and had also moved out of the accommodation provided to her (see paragraph 19 above). He handed to them her passport and other documents (see paragraph 21 above). 296. The Court recalls the obligations undertaken by the Cypriot authorities in the context of the Palermo Protocol and, subsequently, the Anti-Trafficking Convention to ensure adequate training to those working in relevant fields to enable them to identify potential trafficking victims (see paragraphs 155 and 167 above). In particular, under Article 10 of the Palermo Protocol, States undertake to provide or strengthen training for law enforcement, immigration and other relevant officials in the prevention of trafficking in persons. In the Court ’ s opinion, there were sufficient indicators available to the police authorities, against the general backdrop of trafficking issues in Cyprus, for them to have been aware of circumstances giving rise to a credible suspicion that Ms Rantseva was, or was at real and immediate risk of being, a victim of trafficking or exploitation. Accordingly, a positive obligation arose to investigate without delay and to take any necessary operational measures to protect Ms Rantseva. 297. However, in the present case, it appears that the police did not even question Ms Rantseva when she arrived at the police station. No statement was taken from her. The police made no further inquiries into the background facts. They simply checked whether Ms Rantseva ’ s name was on a list of persons wanted by the police and, on finding that it was not, called her employer and asked him to return and collect her. When he refused and insisted that she be detained, the police officer dealing with the case put M.A. in contact with his superior (see paragraph 20 above). The details of what was said during M.A. ’ s conversation with the officer ’ s superior are unknown, but the result of the conversation was that M.A. agreed to come and collect Ms Rantseva and subsequently did so. 298. In the present case, the failures of the police authorities were multiple. First, they failed to make immediate further inquiries into whether Ms Rantseva had been trafficked. Second, they did not release her but decided to confide her to the custody of M.A.. Third, no attempt was made to comply with the provisions of Law 3(1) of 2000 and to take any of the measures in section 7 of that law (see paragraph 130 above) to protect her. The Court accordingly concludes that these deficiencies, in circumstances which gave rise to a credible suspicion that Ms Rantseva might have been trafficked or exploited, resulted in a failure by the Cypriot authorities to take measures to protect Ms Rantseva. There has accordingly been a violation of Article 4 in this respect also. iii. Procedural obligation to investigate trafficking 299. A further question arises as to whether there has been a procedural breach as a result of the continuing failure of the Cypriot authorities to conduct any effective investigation into the applicant ’ s allegations that his daughter was trafficked. 300. In light of the circumstances of Ms Rantseva ’ s subsequent death, the Court considers that the requirement incumbent on the Cypriot authorities to conduct an effective investigation into the trafficking allegations is subsumed by the general obligation arising under Article 2 in the present case to conduct an effective investigation into Ms Rantseva ’ s death (see paragraph 234 above ). The question of the effectiveness of the investigation into her death has been considered above in the context of the Court ’ s examination of the applicant ’ s complaint under Article 2 and a violation has been found. There is therefore no need to examine separately the procedural complaint against Cyprus under Article 4. b. Russia i. Positive obligation to put in place an appropriate legislative and administrative framework 301. The Court recalls that the responsibility of Russia in the present case is limited to the acts which fell within its jurisdiction (see paragraphs 207 to 208 above). Although the criminal law did not specifically provide for the offence of trafficking at the material time, the Russian Government argued that the conduct about which the applicant complained fell within the definitions of other offences. 302. The Court observes that the applicant does not point to any particular failing in the Russian criminal law provisions. Further, as regards the wider administrative and legal framework, the Court emphasises the efforts of the Russian authorities to publicise the risks of trafficking through an information campaign conducted through the media (see paragraph 262 above). 303. On the basis of the evidence before it, the Court does not consider that the legal and administrative framework in place in Russia at the material time failed to ensure Ms Rantseva ’ s practical and effective protection in the circumstances of the present case. ii. Positive obligation to take protective measures 304. The Court recalls that any positive obligation incumbent on Russia to take operational measures can only arise in respect of acts which occurred on Russian territory (see, mutatis mutandis, Al - Adsani, cited above, § § 38 to 39 ). 305. The Court notes that although the Russian authorities appear to have been aware of the general problem of young women being trafficked to work in the sex industry in foreign States, there is no evidence that they were aware of circumstances giving rise to a credible suspicion of a real and immediate risk to Ms Rantseva herself prior to her departure for Cyprus. It is insufficient, in order for an obligation to take urgent operational measures to arise, merely to show that there was a general risk in respect of young women travelling to Cyprus on artistes ’ visas. Insofar as this general risk was concerned, the Court recalls that the Russian authorities took steps to warn citizens of trafficking risks (see paragraph 262 above). 306. In conclusion, the Court does not consider that the circumstances of the case were such as to give rise to a positive obligation on the part of the Russian authorities to take operational measures to protect Ms Rantseva. There has accordingly been no violation of Article 4 by the Russian authorities in this regard. iii. Procedural obligation to investigate potential trafficking 307. The Court recalls that, in cases involving cross-border trafficking, trafficking offences may take place in the country of origin as well as in the country of destination ( see paragraph 289 above). In the case of Cyprus, as the Ombudsman pointed out in her report (see paragraph 86 above), the recruitment of victims is usually undertaken by artistic agents in Cyprus working with agents in other countries. The failure to investigate the recruitment aspect of alleged trafficking would allow an important part of the trafficking chain to act with impunity. In this regard, the Court highlights that the definition of trafficking adopted in both the Palermo Protocol and the Anti-Trafficking Convention expressly includes the recruitment of victims (see paragraphs 150 and 164 above). The need for a full and effective investigation covering all aspects of trafficking allegations from recruitment to exploitation is indisputable. The Russian authorities therefore had an obligation to investigate the possibility that individual agents or networks operating in Russia were involved in trafficking Ms Rantseva to Cyprus. 308. However, the Court observes that the Russian authorities undertook no investigation into how and where Ms Rantseva was recruited. In particular, the authorities took no steps to identify those involved in Ms Rantseva ’ s recruitment or the methods of recruitment used. The recruitment having occurred on Russian territory, the Russian authorities were best placed to conduct an effective investigation into Ms Rantseva ’ s recruitment. The failure to do so in the present case was all the more serious in light of Ms Rantseva ’ s subsequent death and the resulting mystery surrounding the circumstances of her departure from Russia. 309. There has accordingly been a violation by the Russian authorities of their procedural obligation under Article 4 to investigate alleged trafficking. VI. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION 310. The applicant complained that there was a violation of Article 5 § 1 of the Convention by the Cypriot authorities in so far as his daughter was detained at the police station, released into the custody of M.A. and subsequently detained in the apartment of M.A. ’ s employee. Article 5 § 1 provides, inter alia, that: “ Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court; (b) the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; (d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority; (e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.” A. The parties ’ submissions 1. The applicant 311. The applicant submitted that his daughter ’ s treatment at the police station and subsequent confinement to the apartment of M.A. ’ s employee violated Article 5 § 1 of the Convention. He emphasised the importance of Article 5 in protecting individuals from arbitrary detention and abuse of power. Ms Rantseva was legally on the territory of the Republic of Cyprus and was, the applicant contended, unreasonably and unlawfully detained by M.A., escorted to the police station, released into M.A. ’ s custody and detained in the apartment of M.A. ’ s employee. He further observed that no document had been produced by the Cypriot authorities setting out the grounds on which Ms Rantseva had been detained and subsequently handed over to M.A.. 2. The Cypriot Government 312. In their written submissions, the Cypriot Government denied that there had been a violation of Article 5 in the present case. They argued that it was not clear from the established facts of the case whether the police had exercised any power over Ms Rantseva. Nor was it clear what would have happened had Ms Rantseva refused to leave with M.A.. 313. In their unilateral declaration (see paragraph 187 above), the Government accepted that Ms Rantseva ’ s treatment at the police station and the decision not to release her but to hand her over to M.A., even though there was no legal basis for her deprivation of liberty, was not consistent with the requirements of Article 5. B. The Court ’ s assessment 1. The existence of a deprivation of liberty in the present case 314. The Court reiterates that in proclaiming the “right to liberty”, Article 5 § 1 aims to ensure that no -one should be dispossessed of his physical liberty in an arbitrary fashion. The difference between restrictions on movement serious enough to fall within the ambit of a deprivation of liberty under Article 5 § 1 and mere restrictions of liberty which are subject only to Article 2 of Protocol No. 4 is one of degree or intensity, and not one of nature or substance ( Guzzardi v. Italy, 6 November 1980, § 93, Series A no. 39 ). In order to determine whether someone has been “deprived of his liberty” within the meaning of Article 5, the starting point must be her concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question (see Engel and Others v. the Netherlands, 8 June 1976, § § 58-59, Series A no. 22; Guzzardi, cited above, § 92; and Riera Blume and Others v. Spain, no. 37680/97, § 28, ECHR 1999 ‑ VII ). 315. In the present case, the Court observes that the applicant was taken by M.A. to the police station where she was detained for about an hour. There is no evidence that Ms Rantseva was informed of the reason for her detention; indeed, as the Court has noted above (see paragraph 297 ) there is no record that she was interviewed by the police at all during her time at the police station. Despite the fact that the police concluded that Ms Rantseva ’ s immigration status was not irregular and that there were no grounds for her continued detention, she was not immediately released. Instead, at the request of the person in charge of the Aliens and Immigration Service ( “ AIS ” ), the police telephoned M.A. and requested that he collect her and take her to the AIS office at 7 a.m. for further investigation. M.A. was advised that if he did not collect her, she would be allowed to leave. Ms Rantseva was detained at the police station until M.A. ’ s arrival, when she was released into his custody (see paragraph 20 above). 316. The facts surrounding Ms Rantseva ’ s subsequent stay in M.P. ’ s apartment are unclear. In his witness statement to the police, M.A. denied that Ms Rantseva was held in the apartment against her will and insists that she was free to leave (see paragraph 21 above). The applicant alleges that Ms Rantseva was locked in the bedroom and was thus forced to attempt an escape via the balcony. The Court notes that Ms Rantseva died after falling from the balcony of the apartment in an apparent attempt to escape (see paragraph 41 above). It is reasonable to assume that had she been a guest in the apartment and was free to leave at any time, she would simply have left via the front door (see Storck v. Germany, no. 61603/00, § § 76-78, ECHR 2005 ‑ V ). Accordingly, the Court considers that Ms Rantseva did not remain in the apartment of her own free will. 317. In all, the alleged detention lasted about two hours. Although of short duration, the Court emphasises the serious nature and consequences of the detention and recalls that where the facts indicate a deprivation of liberty within the meaning of Article 5 § 1, the relatively short duration of the detention does not affect this conclusion (see Järvinen v. Finland, no. 30408/96, Commission decision of 15 January 1998; and Novotka v. Slovakia (dec.), no. 47244/99, 4 November 2003, where the transportation to the police station, search and temporary confinement in a cell lasting around one hour was considered to constitute a deprivation of liberty for the purposes of Article 5 ). 318. Accordingly, the Court finds that the detention of Ms Rantseva at the police station and her subsequent transfer and confinement to the apartment amounted to a deprivation of liberty within the meaning of Article 5 of the Convention. 2. Responsibility of Cyprus for the deprivation of liberty 319. In so far as Ms Rantseva was detained by private individuals, the Court must examine the part played by the police officers and determine whether the deprivation of liberty in the apartment engaged the responsibility of the Cypriot authorities, in particular in light of their positive obligation to protect individuals from arbitrary detention (see Riera Blume, cited above, §§ 32-35). 320. The Court has already expressed concern that the police chose to hand Ms Rantseva into M.A. ’ s custody rather than simply allowing her to leave (see paragraph 298 above). Ms Rantseva was not a minor. According to the evidence of the police officers on duty, she displayed no signs of drunkenness (see paragraph 20 above). It is insufficient for the Cypriot authorities to argue that there is no evidence that Ms Rantseva did not consent to leaving with M.A.: as the AIRE Centre pointed out (see paragraph 269 above), victims of trafficking often suffer severe physical and psychological consequences which render them too traumatised to present themselves as victims. Similarly, in her 2003 report the Ombudsman noted that fear of repercussions and inadequate protection measures resulted in a limited number of complaints being made by victims to the Cypriot police (see paragraphs 87 to 88 above). 321. Taken in the context of the general living and working conditions of cabaret artistes in Cyprus, as well as in light of the particular circumstances of Ms Rantseva ’ s case, the Court considers that it is not open to the police to claim that they were acting in good faith and that they bore no responsibility for Ms Rantseva ’ s subsequent deprivation of liberty in M.P. ’ s apartment. It is clear that without the active cooperation of the Cypriot police in the present case, the deprivation of liberty could not have occurred. The Court therefore considers that the national authorities acquiesced in Ms Rantseva ’ s loss of liberty. 3. Compatibility of the deprivation of liberty with Article 5 § 1 322. It remains to be determined whether the deprivation of liberty fell within one of the categories of permitted detention exhaustively listed in Article 5 § 1. The Court reiterates that Article 5 § 1 refers essentially to national law and lays down an obligation to comply with its substantive and procedural rules. It also requires, however, that any measure depriving the individual of his liberty must be compatible with the purpose of Article 5, namely to protect the individual from arbitrariness (see Riera Blume, cited above, § 31 ). 323. By laying down that any deprivation of liberty should be “in accordance with a procedure prescribed by law”, Article 5 § 1 requires, first, that any arrest or detention should have a legal basis in domestic law. The Cypriot Government did not point to any legal basis for the deprivation of liberty but it can be inferred that Ms Rantseva ’ s initial detention at the police station was effected in order to investigate whether she had failed to comply with immigration requirements. However, having ascertained that Ms Rantseva ’ s name was not included on the relevant list, no explanation has been provided by the Cypriot authorities as to the reasons and legal basis for the decision not to allow Ms Rantseva to leave the police station but to release her into the custody of M.A.. As noted above, the police found that Ms Rantseva did not exhibit signs of drunkenness and did not pose any threat to herself or others (see paragraphs 20 and 320 above). There is no indication, and it has not been suggested, that Ms Rantseva requested that M.A. come to collect her. The decision of the police authorities to detain Ms Rantseva until M.A. ’ s arrival and, subsequently, to consign her to his custody had no basis in domestic law. 324. It has not been argued that Ms Rantseva ’ s detention in the apartment was lawful. The Court finds that this deprivation of liberty was both arbitrary and unlawful. 325. The Court therefore concludes that there has been a violation of Article 5 § 1 on account of Ms Rantseva ’ s unlawful and arbitrary detention. VII. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 326. The applicant contended that the Cypriot authorities violated his right of access to court under Article 6 of the Convention by failing to ensure his participation in the inquest proceedings, by failing to grant him free legal aid and by failing to provide him with information on available legal remedies in Cyprus. Article 6 provides, in so far as relevant, as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” A. The parties ’ submissions 1. The applicant 327. The applicant highlighted the importance of the right of access to court in a democratic society. Such a right entailed an opportunity for an individual to have a clear, practical opportunity to challenge an act which interfered with his rights. The applicant pointed out that there had been no trial in respect of his daughter ’ s death. He further complained about the failure of the Cypriot authorities to ensure his effective participation in the inquest proceedings and to provide free legal assistance. Accordingly, he submitted, the Cypriot authorities had violated his right of access to court guaranteed under Article 6 of the Convention. 2. The Cypriot Government 328. In their written observations, the Cypriot Government submitted that Article 6 did not apply to inquest proceedings as they were not proceedings that determined civil rights and obligations. Accordingly, the applicant could not claim a right of access to the proceedings in respect of his daughter ’ s death. 329. If, on the other hand, inquest proceedings did engage Article 6, the Cypriot Government contended that the applicant ’ s right of access to court was ensured in the present case. 330. In their subsequent unilateral declaration (see paragraph 187 above), the Cypriot Government acknowledged a violation of the applicant ’ s right to an effective access to court by the failure of the Cypriot authorities to establish any real and effective communication between them and the applicant as regards the inquest and any other possible legal remedies available to the applicant. B. Admissibility 331. The Court observes at the outset that Article 6 does not give rise to a right to have criminal proceedings instituted in a particular case or to have third parties prosecuted or sentenced for a criminal offence (see, for example, Rampogna and Murgia v. Italy (dec.), no. 40753/98, 11 May 1999; Perez v. France [GC], no. 47287/99, § 70, ECHR 2004 ‑ I; and Dinchev v. Bulgaria, no. 23057/03, § 39, 22 January 2009 ). To the extent that the applicant complains under Article 6 § 1 about the failure of the Cypriot authorities to bring criminal proceedings in respect of his daughter ’ s death, his complaint is therefore inadmissible ratione materiae and must be rejected under Article 35 §§ 3 and 4 of the Convention. 332. As regards the complaint regarding participation in the inquest proceedings, the Court observes that procedural guarantees in inquest proceedings are inherent in Article 2 of the Convention and the applicant ’ s complaints have already been examined in that context (see paragraph 239 above). As to the applicability of Article 6 to inquest proceedings, the Court considers there is no criminal charge or civil right at stake for the applicant in the context of such proceedings. Accordingly, this part of the complaint is also inadmissible ratione materiae and must be rejected under Article 35 §§ 3 and 4 of the Convention. 333. Finally, as regards the applicant ’ s complaints that he was not informed of other remedies available to him and was not provided with free legal assistance, when the cost of legal representation in Cyprus was prohibitive, the Court considers that these complaints are inherently linked to the applicant ’ s complaint under Article 2 of the Convention and recalls that they have been addressed in that context (see paragraph 240 above). It is therefore not necessary to consider the extent to which any separate issue may arise under Article 6 in such circumstances. 334. Accordingly, the complaints under Article 6 § 1 must be declared inadmissible and rejected in accordance with Article 35 §§ 3 and 4 of the Convention. VIII. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 335. The applicant also invoked Article 8 of the Convention, which provides as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 336. The applicant has provided no further details of the nature of his complaint under this Article. In the light of all the material in its possession, and in so far as the matters complained of were within its competence, the Court finds no appearance of a violation of the rights and freedoms set out in the Convention or its Protocols arising from this complaint. The complaint must therefore be declared inadmissible pursuant to Article 35 §§ 3 and 4 of the Convention. IX. APPLICATION OF ARTICLE 41 OF THE CONVENTION 337. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” Damage 1. The parties ’ submissions 338. The applicant sought EUR 100,000 in respect of non-pecuniary damage resulting from the death of his daughter. He pointed to the serious nature of the alleged violations in the present case and the fact that his daughter was the sole provider for the family. He also highlighted the emotional anguish occasioned by his daughter ’ s death and his subsequent efforts to bring those responsible to justice. 339. The Cypriot Government argued that the sum claimed was excessive, having regard to the Court ’ s case-law. They further pointed out that the applicant had provided no evidence that he was financially dependent upon his daughter. In their unilateral declaration (see paragraph 187 above), they offered to pay the applicant EUR 37,300 in respect of pecuniary and non-pecuniary damage and costs and expenses, or such other sum as suggested by the Court. 340. The Russian Government submitted that any non-pecuniary damages should be paid by the State which failed to ensure the safety of the applicant ’ s daughter and failed to perform an effective investigation into her death. They noted that they were not the respondent State as far as the applicant ’ s substantive Article 2 complaint was concerned. 2. The Court ’ s assessment 341. The Court notes that a claim for loss of economic support is more appropriately considered as a claim for pecuniary loss. In this respect, the Court reiterates that there must be a clear causal connection between the damage claimed by the applicant and the violation of the Convention and that this may, in the appropriate case, include compensation in respect of loss of earnings (see, inter alia, Aktaş v. Turkey, no. 24351/94, § 352, ECHR 2003 ‑ V (extracts) ). In the present case the Court has not found Cyprus responsible for Mr Rantseva ’ s death, holding that there was a procedural, and not a substantive, violation of Article 2 in the present case. Accordingly, the Court does not consider it appropriate to make any award to the applicant in respect of pecuniary damage arising from Ms Rantseva ’ s death. 342. As regards non-pecuniary damage, the Court has found that the Cypriot authorities failed to take steps to protect Ms Rantseva from trafficking and to investigate whether she had been trafficked. It has further found that the Cypriot authorities failed to conduct an effective investigation into Ms Rantseva ’ s death. Accordingly, the Court is satisfied that the applicant must be regarded as having suffered anguish and distress as a result of the unexplained circumstances of Ms Rantseva ’ s death and the failure of the Cypriot authorities to take steps to protect her from trafficking and exploitation and to investigate effectively the circumstances of her arrival and stay in Cyprus. Ruling on an equitable basis, the Court awards the sum of EUR 40,000 in respect of the damage sustained by the applicant as a result of the conduct of the Cypriot authorities, plus any tax that may be chargable on that amount. 343. The Court recalls that it has found a procedural violation of Article 4 in respect of Russia. Ruling on an equitable basis, it awards the applicant EUR 2,000 in non-pecuniary damage in respect of the damage sustained by him by the conduct of the Russian authorities, plus any tax that may be chargable on that amount. Costs and expenses 1. The parties ’ submissions 344. The applicant requested reimbursement of costs and expenses incurred in the sum of around 485,480 Russian roubles (RUB) (approximately EUR 11,240), including travel, photocopying, translation and services of a notary. The sum also included the sum of RUB 233,600 in respect of the sale of his home in Russia, which he claimed was necessary in order to obtain necessary funds; funeral costs in the sum of about RUB 46,310; and RUB 26,661 spent on attending a conference on trafficking in Cyprus in 2008. Relevant receipts were provided. 345. The Cypriot Government argued that the applicant could only claim for costs which were necessarily incurred to prevent or redress a breach of the Convention, reasonable as to quantum and causally linked to the violation in question. As such, they contested the applicant ’ s claim of RUB 2 3 3,600 in respect of the sale of his flat, the sums expended on attending the 2008 conference and any costs and expenses not substantiated by receipts or not reasonable as to quantum. 346. The Russian Government contended that the applicant had failed to substantiate his allegation that he was required to sell his flat and travel to Cyprus. In particular, they submitted that the applicant could have applied to relevant law enforcement authorities in Russia to request necessary documents and evidence from the Cypriot authorities and could have instructed a lawyer in Cyprus. The Russian Government also contested the applicant ’ s claim for the costs of the 2008 conference on the ground that it was not directly linked to the investigation of Ms Rantseva ’ s death. 2. The Court ’ s assessment 347. The Court recalls that the applicant is entitled to the reimbursement of costs and expenses in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, the applicant is not entitled to claim the proceeds of the sale of his house or for the expenses of travelling to the conference in Cyprus in 2008, such conference not being directly linked to the investigation of Ms Rantseva ’ s death. Further, the Court recalls that it found only a procedural breach of Article 2. Accordingly, the applicant is not entitled to reimbursement of funeral expenses. 348. Having regard to the above, the Court considers it reasonable to award the sum of EUR 4,000 in respect of costs and expenses plus any tax that may be chargeable to the applicant on that amount, less EUR 850 received by way of legal aid from the Council of Europe. In the circumstances of this case the Court considers it appropriate that the costs and expenses are awarded against Cyprus. C. Default interest 349. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The European Court of Human Rights noted that, like slavery, trafficking in human beings, by its very nature and aim of exploitation, was based on the exercise of powers attaching to the right of ownership; it treated human beings as commodities to be bought and sold and put to forced labour; it implied close surveillance of the activities of victims, whose movements were often circumscribed; and it involved the use of violence and threats against victims. Accordingly the Court held that trafficking itself was prohibited by Article 4 (prohibition of slavery and forced labour) of the European Convention on Human Rights. It concluded that there had been a violation by Cyprus of its positive obligations arising under Article 4 of the Convention on two counts: first, its failure to put in place an appropriate legal and administrative framework to combat trafficking as a result of the existing regime of artiste visas, and, second, the failure of the police to take operational measures to protect the applicant’s daughter from trafficking, despite circumstances which had given rise to a credible suspicion that she might have been a victim of trafficking. The Court held that there had also been a violation of Article 4 of the Convention by Russia on account of its failure to investigate how and where the applicant’s daughter had been recruited and, in particular, to take steps to identify those involved in her recruitment or the methods of recruitment used. The Court further held that there had been a violation by Cyprus of Article 2 (right to life) of the Convention, as a result of the failure of the Cypriot authorities to investigate effectively the applicant’s daughter’s death. |
454 | Treatment of prisoners with drug addiction | II. RELEVANT DOMESTIC LAW 40. A person who suffers injury, physical or psychiatric, in consequence of the negligence of another may bring an action for damages for that injury. An exacerbation of an existing condition constitutes such injury. Upset and injury to feelings resulting from negligence in the absence of physical or psychiatric damage or exacerbation, do not entitle a plaintiff to damages. Any personal injury action maintainable by a living person survives for the benefit of his estate and may be pursued after his death. 41. Claims arising from the death of an individual caused by negligence are brought under the Fatal Accidents Act 1976 or the Law Reform (Miscellaneous Provisions) Act 1934. The former enables those who were financially dependent upon the deceased to recover damages for the loss of dependency. The scheme of the 1976 Act is compensatory and save for the sum of 7,500 pounds sterling for bereavement to the spouse of a deceased or parent of a deceased child under 18 at the time of death, damages are awarded to reflect the loss of support. The latter enables damages to be recovered on behalf of the deceased’s estate and may include any right of action vested in the deceased at the time of his death together with funeral expenses. THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 42. Article 3 of the Convention provides: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. The parties’ submissions 43. The applicants complained that the prison authorities inflicted inhuman and degrading treatment on Judith McGlinchey during her detention in prison. They submitted that the prison authorities failed to administer her medication for her asthma and that they did not give her medication for her heroin withdrawal. On one occasion, the prison authorities deliberately omitted giving her an injection as a punishment for her difficult behaviour. The prison authorities also permitted her to dehydrate and vomit unnecessarily and delayed unjustifiably in transferring her to a civilian hospital where she could be expertly treated. She was forced to clean up the vomit in her cell and was left lying in her own vomit. They drew attention to Judith McGlinchey’s vulnerability, the period of time over which she suffered serious symptoms and the fact that she was not a high-security risk prisoner. 44. The Government submitted that Judith McGlinchey received appropriate medication for her withdrawal symptoms and was transferred to hospital as soon as it became clear that her situation required more intensive medical treatment than the prison could provide. In particular, she was provided with anti-emetic medication, which was, pursuant to the prison doctor’s instructions, injected on a number of occasions. When it was not administered on 8 December 1998, this was on the instructions of the doctor due to a drop in Judith McGlinchey’s blood pressure. There was no evidence that she was left to clean up her own vomit, the practice being for nursing staff to take care of any such necessities. While it was noted that she was soiled with vomit on arrival at the hospital, this was explained by the speed with which she had been rushed to hospital when she collapsed, not by a deliberate refusal to clean her. B. The Court’s assessment 1. General principles 45. The Court reiterates that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and/or mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Tekin v. Turkey, judgment of 9 June 1998, Reports of Judgments and Decisions 1998-IV, p. 1517, § 52). 46. Under this provision the State must ensure that a person is detained in conditions which are compatible with respect for her human dignity, that the manner and method of the execution of the measure do not subject her to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, her health and well-being are adequately secured by, among other things, providing her with the requisite medical assistance (see, mutatis mutandis, Aerts v. Belgium, judgment of 30 July 1998, Reports 1998-V, p. 1966, §§ 64 et seq., and Kudła v. Poland [GC], no. 30210/96, § 94, ECHR 2000-XI). 2. Application in the present case 47. The Court observes that the applicants have raised a number of complaints that the prison authorities inflicted inhuman and degrading treatment on Judith McGlinchey, while the Government have maintained that she received appropriate medication for her withdrawal symptoms and was transferred to hospital as soon as it became clear that her situation required more intensive medical treatment than the prison could provide. 48. As regards the allegation that the prison authorities failed to provide Judith McGlinchey with medication for her heroin withdrawal as punishment, the Court notes that it appears from the medical records that the prescribed drug Lofexidine was not administered at 12 noon on 8 December 1998. Although the applicants complained that this was withheld for misbehaviour, the Government submitted that it was in fact omitted on the instructions of the doctor due to a drop in Judith McGlinchey’s blood pressure. This is supported by the medication notes which indicated that blood pressure had to be monitored with this drug and a drop in Judith McGlinchey’s blood pressure had been recorded at this time. The notes also showed that she had been seen by the medical officer that morning and the drug record was signed by the doctor. 49. While there is a reference in the nursing notes, after the entry about omitting the medication, to Judith McGlinchey throwing a cup of tea across the room and then being “locked in for education”, it was explained at the inquest that it was normal procedure for prisoners who were not going to classes to be detained in their rooms during that period. The Court finds therefore that it is not substantiated that relief for her withdrawal symptoms was denied to Judith McGlinchey as a punishment. 50. As regards the allegation that Judith McGlinchey was left to lie in her vomit, the Government pointed out that this appears to derive from the comments of the hospital staff that when Judith McGlinchey arrived at the hospital her hair and clothing were matted with vomit. The medical and nursing notes indicated that Judith McGlinchey had not been seen to vomit during the night and that she collapsed, vomiting, in the morning. The Court does not find that in the urgency of her immediate transferral to hospital the failure to ensure that Judith McGlinchey was adequately cleaned discloses any element of treatment that could be characterised as degrading. As regards complaints made to her mother that she was having to clean up her own vomit, there is no substantiation of this in the hospital or prison records although one entry refers to Judith McGlinchey refusing to clean her cell. The Government, relying on a statement by the head of nursing care, submitted that this was a general tidying requirement, not in response to a vomiting incident. The Government asserted that the practice was for nurses to clean any vomit which landed on the floor or elsewhere in the cell. The Court finds that there is insufficient material before it to reach any findings on this matter. 51. As regards the allegation that asthma medicine was not administered, the Court notes that the nursing notes indicate that inhalers were provided on 7 December 1998 during the night when Judith McGlinchey was seen to be wheezing. In so far as the applicants also mentioned irregularity in administering the antibiotic medicine for Judith McGlinchey’s arm, it appears that out of twenty doses over a five day period, some four were omitted. Sister N. was unable to provide an explanation for this at the inquest, although she suggested the possibility that the nurse in question had forgotten to complete the drugs record. In either case, it indicates a regrettable lapse in procedure. However, the Court does not find any evidence in the material before it to show that this failure had any adverse effect on Judith McGlinchey’s condition or caused her any discomfort. 52. Finally, the Court considered the complaints that not enough was done, or done quickly enough, by way of treating Judith McGlinchey for her heroin withdrawal symptoms, preventing her suffering or a worsening of her condition. 53. The Court observes that she was screened by a nurse on entry to the prison on 7 December 1998. On 8 December 1998 she was seen by Dr K., the prison doctor who set up a course of treatment for her various problems. For the heroin withdrawal symptoms, he initially prescribed a withdrawal drug, Lofexidine. One dose of this drug was omitted at midday due to her low blood pressure. On 10 December 1998 she was seen again by Dr K., who prescribed an intra-muscular injection for the continuing withdrawal symptoms. He found no signs that she was dehydrated and placed more importance on his clinical impressions than her apparent drop in weight from 50 kg to 43 kg since there was known to be a discrepancy between the scales used on admission and those in the health-care centre. He was aware however that there was a potential problem and gave instructions for her weight to be monitored. On 11 December 1998 she was examined again by Dr K., who found no signs of dehydration and considered that her condition was generally stable. He ordered a further injection which was observed to have some effect as she was able to keep down fluids during the rest of the day. Oral doses of the anti-emetic drug were prescribed to continue over the weekend. The nursing notes indicate that on occasion during this period the nurses administered mild anti-nausea medication to assist Judith McGlinchey with her symptoms and were encouraging her to take fluids. 54. While it appears therefore that Judith McGlinchey’s condition from 7 to 12 December 1998 was subject to regular monitoring, with the medical and nursing staff taking steps to respond to Judith McGlinchey’s withdrawal symptoms, the Court notes that during this period she was vomiting repeatedly, taking very little food and losing considerable weight in an undefined amount. Although injections had been given twice, these had had, at most, a short-term effect and by the evening of 11 December 1998 she was vomiting again. The evidence of any improvement in her condition by this point is, in the Court’s view, slim. 55. In the two following days, the weekend, according to the staffing arrangements at the prison, Dr K. was not present. A locum doctor visited the prison on the Saturday morning, 12 December, but the records do not indicate that he saw Judith McGlinchey. If a doctor was required at any other time over the weekend, the nursing staff were expected to call out a doctor or arrange for transfer to hospital. It appears therefore that Judith McGlinchey was not examined by a doctor for two days. On 12 December 1998 her temperature, blood pressure and pulse were observed to be normal. She was however continuing to vomit and her weight was recorded as dropping to 40 kg, a further 3 kg decrease since 9 December and a possible 10 kg decrease since her admission five days earlier. Notwithstanding this further deterioration, the nursing staff did not find any cause for alarm or the need to obtain a doctor’s opinion on her condition. 56. The Government have pointed to positive signs over this period – that she slept better during the night and on 13 December took a small meal. However, she vomited on both days and after the meal in question. Dr K. emphasised that, throughout, her vital signs were within the normal range, and that a person suffering serious dehydration would be expected to show lassitude and identifiable physical symptoms which were not present in Judith McGlinchey. However, at the inquest, Dr Tobin considered that, although it had not been established by specific analysis that Judith McGlinchey was dehydrated on entry to hospital due to an inability to insert a central line, there were strong indications to that effect. While the findings could be accounted for by significant blood loss, one episode of coffee-ground vomiting would not provide an adequate explanation. 57. The evidence indicates to the Court that by the morning of 14 December 1998 Judith McGlinchey, a heroin addict whose nutritional state and general health were not good on admission to prison, had suffered serious weight loss and was dehydrated. This was the result of a week of largely uncontrolled vomiting symptoms and an inability to eat or hold down fluids. This situation, in addition to causing Judith McGlinchey distress and suffering, posed very serious risks to her health, as shown by her subsequent collapse. Having regard to the responsibility owed by prison authorities to provide the requisite medical care for detained persons, the Court finds that in the present case there was a failure to meet the standards imposed by Article 3 of the Convention. It notes in this context the failure of the prison authorities to provide accurate means of establishing Judith McGlinchey’s weight loss, which was a factor that should have alerted the prison to the seriousness of her condition, but was largely discounted due to the discrepancy of the scales. There was a gap in the monitoring of her condition by a doctor over the weekend when there was a further significant drop in weight and a failure of the prison to take more effective steps to treat Judith McGlinchey’s condition, such as her admission to hospital to ensure the intake of medication and fluids intravenously, or to obtain more expert assistance in controlling the vomiting. 58. The Court concludes that the prison authorities’ treatment of Judith McGlinchey contravened the prohibition against inhuman or degrading treatment contained in Article 3 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 59. Article 13 of the Convention provides: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. The parties’ submissions 60. The applicants submitted that there was no adequate remedy for their complaints about the treatment of Judith McGlinchey in prison, or a remedy that would address the defects in management and policy which allowed the neglect and ill-treatment. Any cause of action in negligence was dependent on establishing the necessary causal link between the negligent acts and the death and/or personal injury, which was not present in this case. The treatment in issue was nonetheless inhuman and degrading treatment contrary to Article 3 of the Convention. No other remedies, which could provide compensation and an acknowledgement of the breach, existed. 61. The Government stated that remedies were available as required by Article 13 of the Convention. Judith McGlinchey could have used the internal prison complaints system to complain about her treatment. Intolerable conditions of detention were also the proper basis for an application for judicial review. The applicants had available to them a range of causes of action, including negligence and misfeasance in public office. This was not a case where national law did not provide a viable cause of action at all. The fact that the applicants could not prove negligence on the facts did not mean that there was no remedy available. B. The Court’s assessment 62. The Court reiterates that Article 13 of the Convention guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their Convention obligations under this provision. The scope of the obligation under Article 13 varies depending on the nature of the applicant’s complaint under the Convention. Nevertheless, the remedy required by Article 13 must be “effective” in practice as well as in law (see Aksoy v. Turkey, judgment of 18 December 1996, Reports 1996-VI, p. 2286, § 95; Aydın v. Turkey, judgment of 25 September 1997, Reports 1997-VI, pp. 1895-96, § 103; and Kaya v. Turkey, judgment of 19 February 1998, Reports 1998-I, pp. 329-30, § 106). 63. In the case of a breach of Articles 2 and 3 of the Convention, which rank as the most fundamental provisions of the Convention, compensation for the non-pecuniary damage flowing from the breach should in principle be part of the range of available remedies (see Z and Others v. the United Kingdom [GC], no. 29392/95, § 109, ECHR 2001-V). 64. On the basis of the evidence adduced in the present case, the Court has found that the respondent State is responsible under Article 3 of the Convention for inhuman and degrading treatment suffered by Judith McGlinchey prior to her collapse in custody. The applicants’ complaints in this regard are therefore “arguable” for the purposes of Article 13 in connection with Article 3 of the Convention (see Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, p. 23, § 52; Kaya, cited above, pp. 330-31, § 107; and Yaşa v. Turkey, judgment of 2 September 1998, Reports 1998-VI, p. 2442, § 113). 65. While the Government referred to internal prison remedies as being available to Judith McGlinchey to complain about any ill-treatment prior to her death, the Court observes that they would not provide any right to compensation for any suffering already experienced. The Court has already found, in its decision on admissibility, that no action in negligence could be pursued in the civil courts where the impugned conduct fell short of causing physical or psychological injury. It is not apparent that, in an action for judicial review, which Judith McGlinchey could have brought alleging that the prison had failed in its duty to take reasonable care of her in custody and which could have provided a means of examining the way in which the prison authorities carried out their responsibilities, damages could have been awarded on a different basis. Although the Government argued that this inability to pursue a claim for damages flowed from the facts of the situation and not from any omission in the law, it remains the case that no compensation is available under English law for the suffering and distress which has been found above to disclose a breach of Article 3 of the Convention. 66. The question arises whether Article 13 in this context requires that compensation be made available. The Court itself will often award just satisfaction, recognising pain, stress, anxiety and frustration as rendering appropriate compensation for non-pecuniary damage. In the case of a breach of Articles 2 and 3 of the Convention, which rank as the most fundamental provisions of the Convention, compensation for the non-pecuniary damage flowing from the breach should in principle be available as part of the range of possible remedies. 67. In this case therefore, the Court concludes that Judith McGlinchey, or the applicants acting on her behalf after her death, should have been able to apply for compensation for the non-pecuniary damage suffered by her. As there was no remedy which provided a mechanism to examine the standard of care given to Judith McGlinchey in prison and the possibility of obtaining damages, there has, accordingly, been a breach of Article 13 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 68. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 69. The applicants claimed damages for the treatment of Judith McGlinchey for her estate and in respect of their own shock and distress at the suffering experienced by Judith McGlinchey. They submitted that she had been given insufficient and inadequate medical care and was thereby put through unnecessary suffering, including seven days of continued vomiting, an inability to eat or drink and acute fear and mental distress, including the belief that she was going to die. They also referred to their belief that she had been forced to clean up her own vomit and punished by the withdrawal of medication. They also referred to the distress and anguish which they suffered by the realisation of the conditions in which their daughter/mother spent her last conscious days and hours. They claimed a sum of 20,000 pounds sterling (GBP). 70. The Government made no comment on these claims. 71. The Court notes that it has made a finding of a violation of Article 3 in respect of shortcomings in the treatment which Judith McGlinchey received while in prison. It did not find it established however that Judith McGlinchey had been forced to clean up her vomit or that medication had been withheld by way of punishment. Noting that much of Judith McGlinchey’s suffering derived from the heroin withdrawal itself, but that the failure of the prison authorities to take more effective steps to combat her withdrawal symptoms and deteriorating condition must have contributed to her pain and distress, the Court decides, making an assessment on an equitable basis, to award a sum of 11,500 euros (EUR) in respect of Judith McGlinchey’s estate and EUR 3,800 each to the applicants, making a total of EUR 22,900. B. Costs and expenses 72. The applicants claimed GBP 5,480.54 in respect of legal costs incurred in domestic procedures. This included the costs of being represented at the inquest and seeking advice about the cause of Judith McGlinchey’s death and the existence of any domestic remedies. They claimed GBP 844.43, inclusive of value-added tax, in respect of costs and expenses in bringing the case to the Court in Strasbourg. This made a total claim of GBP 6,324.97 73. The Government made no comment on these claims. 74. The Court observes that the costs incurred in obtaining legal advice and attending the inquest were connected at least in part in regard to issues as to the cause of Judith McGlinchey’s death and any possible responsibility of the authorities. The complaint under Article 2 of the Convention however was not pursued before the Court. Making an assessment on an equitable basis, the Court awards EUR 7,500 under this head. C. Default interest 75. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court concluded from the evidence before it, in particular the medical records, that the applicants’ allegations that the prison authorities had failed to provide their relative with medication for her heroin-withdrawal symptoms and locked her in her cell as a punishment were unsubstantiated. However, with regard to the complaints that not enough had been done, or done quickly enough, to treat the applicants’ relative for her heroin-withdrawal symptoms, the Court found that, while it appeared that her condition had been regularly monitored from 7 to 12 December 1998, she had been vomiting repeatedly during that period and losing a lot of weight. Despite some signs of improvement in her condition in the following days, the Court concluded from the evidence before it that by 14 December 1998 the applicants’ relative had lost a lot of weight and become dehydrated. In addition to causing her distress and suffering, this had posed very serious risks to her health. The Court found that the prison authorities had failed to comply with their duty to provide her with the requisite medical care, in violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention. |
148 | Lack of access to prenatal genetic tests | II. RELEVANT DOMESTIC LAW AND PRACTICE A. The Constitution 64. Article 38 of the Constitution reads as follows: “The Republic of Poland shall ensure the legal protection of the life of every human being.” 65. Article 47 of the Constitution reads: “Everyone shall have the right to legal protection of his private and family life, of his honour and good reputation and to make decisions about his personal life.” B. The 1993 Family Planning (Protection of the Human Foetus and Conditions Permitting Pregnancy Termination) Act and related statutes 66. The Family Planning (Protection of the Human Foetus and Conditions Permitting Pregnancy Termination) Act, which is still in force, was passed by Parliament in 1993. Section 1 provided at that time that “every human being shall have an inherent right to life from the moment of conception”. Section 2 (a) of the 1993 Act reads: “ The State and local administration shall ensure unimpeded access to prenatal information and testing, in particular in cases of increased risk or suspicion of a genetic disorder or development problem or of an incurable life-threatening ailment. ” 67. Section 4(a) of the 1993 Act reads, in its relevant part: “1. An abortion can be carried out only by a physician where 1) pregnancy endangers the mother ’ s life or health; 2) prenatal tests or other medical findings indicate a high risk that the foetus will be severely and irreversibly damaged or suffering from an incurable life ‑ threatening ailment; 3) there are strong grounds for believing that the pregnancy is a result of a criminal act. 2. In the cases listed above under 2), an abortion can be performed until such time as the foetus is capable of surviving outside the mother ’ s body; in cases listed under 3) above, until the end of the twelfth week of pregnancy. 3. In the cases listed under 1) and 2) above the abortion shall be carried out by a physician working in a hospital. ... 5. Circumstances in which abortion is permitted under paragraph 1, sub-paragraphs 1) and 2) above shall be certified by a physician other than the one who is to perform the abortion, unless the pregnancy entails a direct threat to the woman ’ s life.” 68. An ordinance issued by the Minister of Health on 22 January 1997, on qualifications of doctors authorised to perform abortions, contains two substantive sections. In its section 1, the requisite qualifications of doctors authorised to perform legal abortions in the conditions specified in the 1993 Act are stipulated. Section 2 of the Ordinance reads: “The circumstances indicating that pregnancy constitutes a threat to the woman ’ s life or health shall be attested by a consultant specialising in the field of medicine relevant to the woman ’ s condition.” 69. On 21 December 2004 the Minister of Health enacted an Ordinance on Certain Medical Services ( rozporządzenie Ministra Zdrowia w sprawie zakresu świadczeń opieki zdrowotnej ). An Appendix No. 3 to this Ordinance, entitled Scope of Medical Prenatal Services ( ... ) ( Zakres lekarskich badań prenatalnych ( ... ) ) read, in so far as relevant: “ 1. Prenatal tests are to be understood as examinations and diagnostic procedures carried out in respect of pregnant women during the first and second trimesters of pregnancy where there is an increased risk of genetic ailment or malformation, but not later than in the 22 nd week of pregnancy. 2. Prenatal tests comprise: 1) non-invasive examinations [including ultrasound scans and biochemical tests [ marking of serum levels in a pregnant woman ’ s blood ]; 2) invasive tests [including biopsy of the trophoblast and amniocentesis ]. 3. Prenatal tests are recommended, in particular, where ... 5) results of the ultrasound scan carried out during the pregnancy indicate an increased risk of the foetus being affected with a chromosomal aberration or other malformation.” C. Relevant provisions of the Criminal Code 70. Termination of pregnancy in breach of the conditions specified in the 1993 Act is a criminal offence punishable under Article 152 § 1 of the Criminal Code. Anyone who terminates a pregnancy in violation of the Act or assists such a termination may be sentenced to up to three years ’ imprisonment. The pregnant woman herself does not incur criminal liability for an abortion performed in contravention of the 1993 Act. 71. Under Article 157 (a) 1, causing physical damage to an unborn child is a criminal offence punishable by a fine, by limitation of liberty, or by imprisonment of up to two years. D. Patients ’ rights 72. At the relevant time, patients rights were provided for by the Medical Institutions Act 1992 ( ustawa o zakładach opieki zdrowotnej ). Its section 19 (2) provided that a patient had a right to obtain information about his or her condition. E. Rights and obligations of doctors 73. Under section 39 of the Medical Profession Act ( ustawa o zawodzie lekarza ), a doctor may refuse to carry out a medical service, invoking her or his objections on the ground of conscience. He or she is obliged to inform the patient where the medical service concerned can be obtained and to register the refusal in the patient ’ s medical records. Doctors employed in health care institutions are also obliged to inform their supervisors of the refusal in writing. 74. Section 31.1 of the Medical Profession Act 1996 provides that physicians are under an obligation to provide to the patient, or his or her representative, comprehensible information about his or her health, diagnosis, proposed and possible diagnostic and therapeutic methods, foreseeable consequences of a decision to have recourse to them or not, and about possible results of therapy and prognosis. 75. Section 37 of the 1996 Medical Profession Act provides that in the event of any diagnostic or therapeutic doubts, a doctor may, on his or her own initiative or at a patient ’ s request and if he or she finds it reasonable in the light of the requirements of medical science, obtain an opinion of a relevant specialist or arrange a consultation with other doctors. F. Civil liability in tort 76. Articles 415 et seq. of the Polish Civil Code provide for liability in tort. Under this provision, whoever by his or her fault causes damage to another person, is obliged to redress it. 77. Pursuant to Article 444 of the Civil Code, in cases of bodily injury or harm to health, a perpetrator shall be liable to cover all pecuniary damage resulting therefrom. 78. Under Article 448 of the Civil Code, a person whose personal rights have been infringed may seek compensation. That provision, in its relevant part, reads: “The court may grant an adequate sum as pecuniary compensation for non ‑ pecuniary damage ( krzywda ) suffered by anyone whose personal rights have been infringed. Alternatively, the person concerned, without prejudice to the right to seek any other relief that may be necessary to remove the consequences of the infringement sustained, may ask the court to award an adequate sum for the benefit of a specific social interest. ...” G. Case-law of the Polish courts 79. In a judgment of 21 November 2003 (V CK 167/03) the Supreme Court held that unlawful refusal to terminate a pregnancy where it had been caused by rape, that is to say in circumstances provided for by section 4 (a) 1.3 of the 1993 Act, could give rise to a compensation claim for pecuniary damage sustained as a result of such refusal. 80. In a judgment of 13 October 2005 (IV CJ 161/05) the Supreme Court expressed the view that a refusal of prenatal tests in circumstances where it could be reasonably surmised that a pregnant woman ran a risk of giving birth to a severely and irreversibly damaged child, that is to say in circumstances set out by section 4 (a) 1.2 of that Act, gave rise to a compensation claim. H. Relevant non-Convention material 1. Texts adopted within the Council of Europe 81. On 21 June 1990 the Committee of Ministers of the Council of Europe adopted Recommendation No. R (90) 13 on prenatal genetic screening, prenatal genetic diagnosis and associated genetic counselling. The recommendation contains, inter alia, the following principles: “ The Committee of Ministers [ ...] noting that in recent decades considerable progress has been achieved in detecting genetic abnormalities in the child to be born, through genetic screening and through prenatal diagnosis of pregnant women, but also noting the fears that these procedures arouse; Considering that women of childbearing age and couples should be fully informed and educated about the availability of, the reasons for and risks of such procedures; Convinced that the genetic diagnosis and screening must always be accompanied by appropriate genetic counselling but that such counselling should in no cases be of a directive nature and must always leave the woman of childbearing age fully informed to take a free decision; ... Recommends that the governments of the member States adopt legislation in conformity with the Principles contained in this Recommendation or take any other measures to ensure their implementation. "Prenatal diagnosis" is the term used to describe tests used to confirm or exclude whether an individual embryo or foetus is affected by a specific disorder. Principle 1 : No prenatal genetic screening and/or prenatal genetic diagnosis tests should be carried out if counselling prior to and after the tests is not available. Principle 2 : Prenatal genetic screening and/or prenatal genetic diagnosis tests undertaken for the purpose of identifying a risk to the health of an unborn child should be aimed only at detecting a serious risk to the health of the child. ... Principle 4 : The counselling must be non-directive; the counsellor should under no condition try to impose his or her convictions on the persons being counselled but inform and advise them on pertinent facts and choices. ... Principle 9 : In order to protect the woman ’ s freedom of choice, she should not be compelled by the requirements of national law or administrative practice to accept or refuse screening or diagnosis. In particular, any entitlement to medical insurance or social allowance should not be dependent on the undergoing of these tests. Principle 10 : No discriminatory conditions should be applied to women who seek prenatal screening or diagnostic testing or to those who do not seek such tests, where these are appropriate. ” 82. In 2008 the Parliamentary Assembly of the Council of Europe adopted Resolution 1607 (2008) “Access to safe and legal abortion in Europe ”. This resolution, in so far as relevant, reads: “ 1. The Parliamentary Assembly reaffirms that abortion can in no circumstances be regarded as a family planning method. Abortion must, as far as possible, be avoided. All possible means compatible with women ’ s rights must be used to reduce the number of both unwanted pregnancies and abortions. 2. In most of the Council of Europe member states the law permits abortion in order to save the expectant mother ’ s life. Abortion is permitted in the majority of European countries for a number of reasons, mainly to preserve the mother ’ s physical and mental health, but also in cases of rape or incest, of foetal impairment or for economic and social reasons and, in some countries, on request. The Assembly is nonetheless concerned that, in many of these states, numerous conditions are imposed and restrict the effective access to safe, affordable, acceptable and appropriate abortion services. These restrictions have discriminatory effects, since women who are well informed and possess adequate financial means can often obtain legal and safe abortions more easily. 3. The Assembly also notes that, in member states where abortion is permitted for a number of reasons, conditions are not always such as to guarantee women effective access to this right: the lack of local health care facilities, the lack of doctors willing to carry out abortions, the repeated medical consultations required, the time allowed for changing one ’ s mind and the waiting time for the abortion all have the potential to make access to safe, affordable, acceptable and appropriate abortion services more difficult, or even impossible in practice. 4. The Assembly takes the view that abortion should not be banned within reasonable gestational limits. A ban on abortions does not result in fewer abortions but mainly leads to clandestine abortions, which are more traumatic and increase maternal mortality and/or lead to abortion “tourism” which is costly, and delays the timing of an abortion and results in social inequities. The lawfulness of abortion does not have an effect on a woman ’ s need for an abortion, but only on her access to a safe abortion. ... 6. The Assembly affirms the right of all human beings, in particular women, to respect for their physical integrity and to freedom to control their own bodies. In this context, the ultimate decision on whether or not to have an abortion should be a matter for the woman concerned, who should have the means of exercising this right in an effective way. 7. The Assembly invites the member states of the Council of Europe to: 7.1. decriminalise abortion within reasonable gestational limits, if they have not already done so; 7.2. guarantee women ’ s effective exercise of their right of access to a safe and legal abortion; 7.3. allow women freedom of choice and offer the conditions for a free and enlightened choice without specifically promoting abortion; 7.4. lift restrictions which hinder, de jure or de facto, access to safe abortion, and, in particular, take the necessary steps to create the appropriate conditions for health, medical and psychological care and offer suitable financial cover ... ” 83. The provisions of the Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine (Convention on Human Rights and Biomedicine), adopted in Oviedo, Spain, on 4 April 1997, in so far as relevant, read: “ Article 5 – General rule An intervention in the health field may only be carried out after the person concerned has given free and informed consent to it. This person shall beforehand be given appropriate information as to the purpose and nature of the intervention as well as on its consequences and risks. ... Article 10 – Private life and right to information Everyone has the right to respect for private life in relation to information about his or her health. Everyone is entitled to know any information collected about his or her health. However, the wishes of individuals not to be so informed shall be observed.” 2. The texts adopted within the United Nations 84. The Polish Government, in their fifth periodic report submitted to the Committee (CCPR/C/POL/2004/5), stated: “ 106. In Poland data about abortions relate solely to abortions conducted in hospitals, i.e. those legally admissible under a law. The number of abortions contained in the present official statistics is low in comparison with previous years. Non ‑ governmental organisations on the basis of their own research estimate that the number of abortions conducted illegally in Poland amounts to 80,000 to 200,000 annually. 107. It follows from the Government ’ s annual Reports of the execution of the [1993] Law [which the Government is obliged to submit to the Parliament] and from reports of non-governmental organisations, that the Law ’ s provisions are not fully implemented and that some women, in spite of meeting the criteria for an abortion, are not subject to it. There are refusals to conduct an abortion by physicians employed in public health care system units who invoke the so-called conscience clause, while at the same time women who are eligible for a legal abortion are not informed about where they should go. It happens that women are required to provide additional certificates, which lengthens the procedure until the time when an abortion becomes hazardous for the health and life of the woman. There [are] no official statistical data concerning complaints related to physicians ’ refusals to perform an abortion. ... In the opinion of the Government, there is a need to [implement] already existing regulations with respect to the ... performance of abortions.” [3] 85. The United Nations Human Rights Committee considered the fifth periodic report of Poland (CCPR/C/POL/2 004/5) at its 2240th and 2241st meetings (CCPR/C/SR.22 40 and 2241), held on 27 and 28 October 2004 and adopted the concluding observations which, in so far as relevant, read : “ 8. The Committee reiterates its deep concern about restrictive abortion laws in Poland, which may incite women to seek unsafe, illegal abortions, with attendant risks to their life and health. It is also concerned at the unavailability of abortion in practice even when the law permits it, for example in cases of pregnancy resulting from rape, and by the lack of information on the use of the conscientious objection clause by medical practitioners who refuse to carry out legal abortions. The Committee further regrets the lack of information on the extent of illegal abortions and their consequences for the women concerned (art. 6). The State party should liberalize its legislation and practice on abortion. It should provide further information on the use of the conscientious objection clause by doctors, and, so far as possible, on the number of illegal abortions that take place in Poland. These recommendations should be taken into account when the draft Law on Parental Awareness is discussed in Parliament. ” 86. The Committee on the Elimination of Discrimination against Women (CEDAW), at its 37 th session, held from 15 January to 2 February 2007, considered the combined fourth and fifth periodic report (CEDAW/C/POL/4-5) and the sixth periodic report of Poland (CEDAW/C/POL/6). It formulated the following concluding comments: “ 24. ... The Committee is concerned about the lack of official data and research on the prevalence of illegal abortion in Poland and its impact on women ’ s health and life. ... 25. The Committee urges the State party to take concrete measures to enhance women ’ s access to health care, in particular to sexual and reproductive health services, in accordance with article 12 of the Convention and the Committee ’ s general recommendation 24 on women and health. It calls on the State party to conduct research on the scope, causes and consequences of illegal abortion and its impact on women ’ s health and life. It also urges the State party to ensure that women seeking legal abortion have access to it, and that their access is not limited by the use of the conscientious objection clause. ” 3. The International Federation of Gynaecology and Obstetrics 87. The objective of the International Federation of Gynaecology and Obstetrics (FIGO) is to promote sexual and reproductive health and rights through educational research and advocacy activities. In 1991 its Ethics Committee issued a statement on Ethical Issues Concerning Prenatal Diagnosis of Disease in the Conceptus. It states that: “ Prenatal diagnosis has become an established service in the care of pregnant women. Further advances, especially at the molecular level, will expand the accuracy and diagnostic scope of manifest disease in later life. Such information may lead to termination of pregnancy, genetic engineering or to adjustments in future life ‑ style. There is also the potential danger of stigmatization or discrimination against the parent or the child identified as affected by some disorder or potential disorder. ... A potential benefit of prenatal diagnosis is the rejection of the diseased conceptus when requested by the woman and permitted by the law. The legal position and the likely attitude of the woman to termination of pregnancy should be ascertained in advance. Prior to undertaking diagnostic procedures, women should be counseled about the risks and benefits of the technique to be used. Such counseling should be factual, respectful of the woman ’ s view, and non-coercive. Consent should be obtained for the use of the procedure. Women should not be denied the availability of prenatal diagnosis because they will not agree in advance to pregnancy termination as an option. Nor should the techniques be withheld on social or financial grounds. Knowledge of prenatally diagnosed disease should not be used as justification for withholding normal medical support or services during pregnancy, at birth, or thereafter, which are desired by the parents. Equity requires that these important diagnostic services are made as widely available as possible. ... ” 88. The FIGO Ethics Committee ’ s 1991 statement on Ethical Aspects of Termination of Pregnancy Following Prenatal diagnosis states, inter alia, that: “ 3. Knowledge acquired by prenatal diagnosis allows for the possibility of termination of pregnancy in those countries where this is legal. This raises serious ethical questions with regard to the degree of abnormality and the reduction in quality of life which may justify this course of action. The attitude of the parents, particularly the woman, after counseling, is of major importance in reaching a decision. It is unethical for anyone to bring pressure to bear on the couple with a view to their accepting a particular option. 4. Doctors should be aware of the desire of parents for a “perfect baby”. However, this wish is unrealistic and parents should be counselled accordingly. 5. Termination should be discouraged when the disorder is treatable and will not necessarily affect the future quality of life. 6. In enabling parents to reach an appropriate decision the primary concern should be the quality of life and the longevity of the individual. A second consideration must be the effect that the birth and life of such a child might have on the woman herself and on her family. In this regard consideration must also be given to the effect of the termination of the pregnancy on the physical and/or psychological health of the woman and her family. A third concern is the availability of resources and support for long-term care .” 89. The Committee ’ s 1994 statement on the Ethical Framework for Gynecologic and Obstetric Care requires that: “ 3. when decisions regarding medical care are required, women be provided with full information on available medical alternatives including risks and benefits. Informing women and obtaining their input and consent, or dissent, should be a continuing process. 4. If a physician is either unable or unwilling to provide a desired medical service for non-medical reasons, he or she should make every effort to achieve appropriate referral. ” THE LAW 90. The applicant complained that the facts of the case had given rise to a breach of Article 3 of the Convention which, insofar as relevant, reads as follows: “No one shall be subjected to ... inhuman or degrading treatment... ” 91. The applicant further complained that the facts of the case had given rise to a breach of Article 8 of the Convention. Her right to respect for her private life and her psychological and moral integrity had been violated by the authorities ’ failure to provide her with access to genetic tests in the context of her uncertainty as to whether the foetus was affected with a genetic disorder and also by the absence of a comprehensive legal framework to guarantee her rights. Article 8 of the Convention, insofar as relevant, reads as follows: “1. Everyone has the right to respect for his private ... life ... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well ‑ being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” I. THE GOVERNMENT ’ S PRELIMINARY OBJECTIONS A. The applicant ’ s status as a victim 1. The parties ’ submissions 92. The Government first submitted that the applicant had rejected their friendly settlement proposal. In their view, she had therefore lost her status as a victim of a breach of her rights guaranteed by the Convention. They further submitted that she had lost that status also because the Kraków Court of Appeal, in its judgment of 30 October 2008, awarded her PLN 65,000 and that judgment subsequently became final. 93. The Government argued that the Supreme Court, in its judgment of 11 July 2008, had held that the right to family planning and the related right to legally terminate the applicant ’ s pregnancy on conditions provided for by Polish law had to be regarded as a personal right within the meaning of the Civil Code. These rights were therefore to be seen as falling within the ambit of Articles 3 and 8 of the Convention. The Supreme Court and the Court of Appeal had thereby acknowledged that the applicant ’ s rights had been breached and afforded redress to her. 94. The applicant argued that the violations of the Convention in her case had resulted from the lack of review procedures available in connection with the doctors ’ refusal to provide her with prenatal diagnosis and care and from the unregulated and chaotic practice of conscientious objection under Polish law, which formed the basis of her complaints under the Convention. She further emphasised that she had received insufficient compensation for the breaches of her rights. In addition, the domestic courts had failed to address the systemic shortcomings of Poland ’ s health care and legal system disclosed by her case. She referred to the case of M.A v. the United Kingdom ( no. 35 242/04, ECHR 2005 – VIII) where a family judge had apologised for the failures in the child care system which had come to light against the background of an individual case, had carried out an explicit and detailed analysis of the system ’ s shortcomings and had made a list of recommendations to avoid repetition of similar violations. She argued that this should have served as a model approach for dealing with her case. 95. The applicant concluded that, in any event, the damages awarded to her on the domestic level should not be used as a means of avoiding the State ’ s compliance with its obligations under the Convention. 2. The Court ’ s assessment 96. In so far as the Government referred to the friendly settlement negotiations between the parties, the Court first reiterates that in accordance with Article 38 § 2 of the Convention, friendly settlement negotiations are confidential and without prejudice to the parties ’ arguments in the contentious proceedings. Pursuant to Rule 62 of the Rules of Court, no written or oral communication and no offer or concession made in the framework of the attempt to secure a friendly settlement may be referred to or relied on in the contentious proceedings. In any event, in the present case the applicant refused the terms of the proposed settlement. Her refusal to settle the case has therefore no incidence on her victim status (see, Chebotarev v. Russia, no. 23795/02, § 20, 22 June 2006, mutatis mutandis; Nina Kazmina and Others v. Russia, nos. 746/05, 13570/06, 13574/06, 13576/06 and 13579/06 (Sect. 1) (Eng), § 25, 13 January 2009; Tahsin Acar v. Turkey (preliminary issue) [GC], no. 26307/95, § 74, ECHR 2003 ‑ VI ). 97. The Court reiterates that it falls, firstly, to the national authorities to redress any violation of the Convention. In this regard, the question whether an applicant can claim to be a victim of the violation alleged is relevant at all stages of the proceedings under the Convention (see, inter alia, Siliadin v. France, no. 73316/01, § 61, ECHR 2005-VII, and Scordino v. Italy (no. 1) [GC], no. 36813/97, § 179, ECHR 2006 ‑ V ). An applicant ’ s status as a victim of a breach of the Convention may depend on compensation being awarded at domestic level on the basis of the facts about which he or she complains before the Court (see Normann v. Denmark (dec.), no. 44704/98, 14 June 2001; and Jensen and Rasmussen v. Denmark (dec.), no. 52620/99, 20 March 2003). The adequacy of that redress falls to be assessed in the light of all the circumstances of the case seen as a whole (see, mutatis mutandis, Dubjaková v. Slovakia (dec.), no. 67299/01, 19 October 2004). The applicant ’ s victim status also depends on whether the domestic authorities have acknowledged, either expressly or in substance, the breach of the Convention. Only when those two conditions are satisfied does the subsidiary nature of the protective mechanism of the Convention preclude examination of an application (see Eckle v. Germany, judgment of 15 July 1982, Series A no. 51, p. 32, §§ 69 et seq ., and Jensen v. Denmark (dec.), no. 48470/99, ECHR 2001 ‑ X). 98. The Court has therefore to examine whether the national authorities have acknowledged, either expressly or in substance, the breach of the rights protected by the Convention. 99. It notes in this connection that the applicant, in her civil case brought before the domestic courts, complained about the doctors ’ failure to refer her for the purposes of genetic testing and about the resultant breach of her right to make an informed decision as to the continuation of pregnancy (see paragraph 43 above). 100. Furthermore, she complained that her personal rights, including her right to respect for personal dignity, had been breached as a result of the manner in which the issue of her access to genetic tests had been determined (see paragraph 43 above). 101. The Court observes that the Supreme Court, in its judgment of 11 July 2008, held that the right of a pregnant woman to be informed about the foetus ’ health in a timely manner and to take informed decisions in the light of that information as to whether to continue the pregnancy or not was a personal right within the meaning of the Civil Code. The Supreme Court found that the legal assessment of the doctors ’ conduct in connection with the applicant ’ s access to genetic testing made by the lower courts was untenable. It accordingly quashed, in its entirety, the judgment of the Kraków Court of Appeal, given on 28 July 2008. As a result, in its subsequent – and final – judgment of 30 October 2008 the Kraków Court of Appeal reversed its previous position and acknowledged that the applicant ’ s patient ’ s and personal rights had been breached. 102. The Court notes that in its judgment the Supreme Court had shown a thorough understanding of the legal issues arising in the case and interpreted them in a manner showing regard for the applicant ’ s dignity and personal autonomy, values protected by the provisions of the Polish Civil Code. It carefully weighed them against other interests involved in the case. In particular, the Supreme Court emphasised a patient ’ s right of access to information relevant to her or his health, including about the foetus ’ condition. It also held that the applicant had suffered distress, anxiety and humiliation as a result of the manner in which her case had been handled (see paragraph 54 above). 103. As to the first set of issues raised by the applicant ’ s case (see paragraph 9 9 above) the Court notes that the applicant submitted them to the Court, alleging that they had given rise to a breach of Article 8 of the Convention (see paragraph 91 above ). The Court considers that this part of the Government ’ s objection is closely linked to the substance of the applicant ’ s complaint under this provision and that its examination should therefore be joined to the merits of that complaint. 104. In so far as the Government ’ s objection as to the applicant ’ s victim status also concerns the applicant ’ s complaint under Article 3 of the Convention (see paragraph 90 above ), the Court is of the view that the amounts awarded at the domestic level must be viewed against the background of the case seen as a whole. The civil case concerned the protection of the applicant ’ s dignity. The issues involved in the case were therefore of the utmost importance for her. 105. It is in this context that the adequacy of the award made in the civil proceedings must be assessed. The courts awarded the applicant PLN 65,000 for all three kinds of complaints which she had made in respect of the way in which she had been treated by the health professionals. 106. However, the Court observes that that amount covered also her claim for defamation against S.B., one of the doctors who had made disparaging statements about her in a press interview. He was ordered to pay PLN 50,000, of which PLN 30,000 concerned the claims arising in connection with the interview. Only the amount of PLN 20,000 concerned the same issues as those examined by the Court in the present case and arising in connection with the circumstances surrounding Dr S.B. ’ s failure to issue to the applicant a prompt referral for genetic testing. 107. The Court further notes that the applicant was also awarded PLN 5,000 against the hospital in T. and PLN 10,000 against the Kraków University Hospital in respect of the breach of her rights as a patient. These amounts have to be added to the sum of PLN 2 0,000 referred to in the above paragraph. In sum, the amount of the domestic award relevant for the case before the Court in its entirety was therefore PLN 35,000. 108. The Court notes that in the case of Tysiąc v. Poland it examined whether the Polish State had complied with its positive obligation under Article 8 of the Convention to safeguard the applicant ’ s right to respect for her private life in the context of a controversy as to whether she was entitled to a legal abortion. It awarded the applicant EUR 25,000 [4] in respect of a breach of this provision. This amount was almost three times higher than that awarded by the domestic courts in the present case in respect of the applicant ’ s complaints made both under Article 3 and Article 8 of the Convention. The Court is therefore of the view that, having regard to the circumstances of the case, the amount of PLN 35,000 cannot be regarded as financial redress commensurate with the nature of the damage alleged by the applicant ( compare and contrast Caraher v. the United Kingdom (dec.), no. 24520/94, ECHR 2000 ‑ I ). 109. The Court finds that the applicant has not ceased to be a victim of a breach of Article 3 of the Convention within the meaning of Article 34 of the Convention. The Government ’ s objection in this respect is accordingly dismissed. 3. Exhaustion of domestic remedies 110. The Government submitted that the applicant had failed to exhaust relevant domestic remedies. The Polish legal system provided for legal avenues which made it possible, either by means of criminal proceedings or civil compensation claims, to establish liability on the part of doctors for any damage caused by medical malpractice. 111. They argued that Article 8 of the Convention did not entail a duty for the State either to establish a general preventive mechanism for review of medical decisions, or to create an appeal procedure regarding access to medical services, even where access to another medical service hinged on a prior diagnostic service. This was also the case for medical services where the time factor was crucial, such as chemotherapy, for instance, as well as services which were essential in order to prevent serious health damage or even death. There were no reasons for departing from this general rule where medical decisions could help to determine whether a foetus was suffering from possible genetic malformation. 112. Furthermore, the State ’ s choice between creating preventive measures or retroactive ones, such as civil or criminal liability, depended on assumptions made by public powers with respect to a conflict between the rights of a pregnant woman and those of an unborn child. The obligations imposed by Article 8 did not exclude perceiving the life of an unborn child as of such crucial value as to render acceptable a risk of wrongful medical diagnosis concerning the existence – or otherwise – of conditions which would make an abortion lawful. Likewise, such a perception of the interests involved could also justify limiting the legal avenues for challenging such a diagnosis to retroactive ones. Obviously, only a woman who wished to terminate her pregnancy would resort to a potential review mechanism in relation to a medical diagnosis impinging on the foetus ’ rights. As a result, only an unborn child would bear the risk of such a diagnosis being incorrect. 113. The Government further submitted that the applicant should have resorted to a constitutional complaint to challenge the provisions of the 1993 Act. The Court had already held a constitutional complaint to be an effective and sufficient domestic remedy. 114. The applicant submitted that the civil proceedings did not provide sufficient and effective remedies with respect to the breaches alleged. Procedures in which decisions concerning the availability of lawful abortion were reviewed post factum could not fulfil such a function ( Tysiąc, cited above, § 118). Retrospective measures alone were not sufficient to provide appropriate protection for the physical and psychological integrity of individuals in such a vulnerable position as the applicant ( Tysiąc, § 124). The available legal framework as applicable at the material time did not contain any effective mechanisms capable of determining whether the conditions for obtaining a lawful abortion had been met ( Tysiąc, § 127). 115. She further argued that she had sought information on the health of the foetus, through prenatal genetic examination, which would have enabled her to make an informed decision, based on medical evidence, as to whether to continue her pregnancy or not. Instead, due to systemic problems in the health care system and, in particular, the State ’ s failure to implement existing laws on conscientious objection and on access to prenatal health care services and to lawful abortion, the doctors had intentionally denied her timely information and health services that should have been considered normal and accessible, lawful and appropriate in the circumstances of her case. Delaying prenatal diagnostic testing also delayed the taking of potential informed decision as to whether to request a termination of pregnancy, to which the applicant was entitled, ultimately making abortion impossible. 116. In so far as the Government refer to a constitutional complaint as a remedy relevant in the applicant ’ s circumstances, the Court is of the view that such a complaint would not have been an effective means of protecting the applicant ’ s right to respect for her private life for the following reasons. The Court notes, firstly, that it has already dealt with the question of the effectiveness of the Polish constitutional complaint ( Szott-Medyńska v. Poland (dec.), no. 47414/99, 9 October 2003; Pachla v. Poland (dec.), no 8812/02, 8 November 2005; Wypych v. Poland (dec.), no. 2428/05, 25 October 2005). It examined its characteristics and, in particular, found that the constitutional complaint was an effective remedy for the purposes of Article 35 § 1 of the Convention only in situations where the alleged violation resulted from the direct application of a legal provision considered by the complainant to be unconstitutional. In the present case, the complaints raised by the applicant cannot be said to have originated from any single legal provision or even from a well-defined set of provisions. They rather resulted from the way in which the laws were applied in practice to her case. However, it follows from the case-law of the Polish Constitutional Court that it lacks jurisdiction to examine the way in which the provisions of domestic law were applied in an individual case. 117. Furthermore, the Court has already held that the constitutional courts were not the appropriate fora for the primary determination as to whether a woman qualifies for an abortion which is lawfully available in a State. In particular, this process would amount to requiring the constitutional courts to resolve through evidence, largely of a medical nature, whether a woman had established the existence of circumstances in which legal abortion could be sought under the 1993 Act (see, mutatis mutandis, A, B and C v. Ireland [GC], no. 25579/05, § 258, 16 December 2010 ). 118. The Court therefore dismisses the Government ’ s preliminary objection as regards the applicant ’ s failure to exhaust domestic remedies by not lodging a constitutional complaint. 119. Furthermore, the Court considers that the Government ’ s objection concerning the alleged failure to exhaust domestic remedies by way of pursuing a compensation claim before the civil courts is closely linked to the substance of the applicant ’ s complaints under Article 8 § 1 read together with Article 13 of the Convention, and should be joined to the merits of the case. 120. The Court further notes that the application is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. II. THE MERITS 121. The Court will first set out the submissions received from third parties who were granted leave to intervene in the case (A.). It will then examine the merits of the applicant ’ s complaints under Articles 3, 8 and 13 of the Convention (B., C. and D.). A. Third parties ’ submissions 1. Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, the office of the United Nations High Commissioner for Human Rights 122. Because the decision to continue or terminate a pregnancy had a profound effect on a woman ’ s private life, including her physical and moral integrity, any interference with this decision must be analysed in light of the woman ’ s right to privacy. This was true regardless of whether the interference directly affected the woman ’ s access to legal abortion or affected it indirectly, by denying her the prerequisite healthcare she needed in order to make a decision regarding continuation or termination of the pregnancy. Numerous international conventions broadly recognised a woman ’ s right to the highest attainable standard of health, including access to appropriate reproductive care. Privacy was particularly important in the case of sexual and reproductive healthcare, which must be provided in a manner consistent with women ’ s rights to personal autonomy. 123. Access to prenatal genetic examinations touched upon reproductive health- related aspects of the right to privacy. Access to information was particularly important in the context of health, as individuals cannot make meaningful healthcare decisions without access to health ‑ related information. Accurate knowledge of an individual ’ s health status was necessary to enable that individual to understand her health care options and protect her bodily integrity by deciding which health care treatment she would avail herself of. 124. This right to information applied with regard to a woman ’ s own reproductive status, knowledge of which was particularly important if women were to be empowered to preserve their bodily integrity by making reproductive health care decisions. Pregnant women might need access to prenatal examinations in order to obtain accurate information about their own health and the health of their foetus, particularly where there were other indications of genetic malformation. Genetic examinations were often the most reliable method for detecting foetal genetic defects. 125. States must allow individuals to make health care decisions in an active and informed manner. Genetic examinations were one important source of information on foetal health. Obstructing access to examinations necessary to make reproductive decisions interfered with women ’ s reproductive health care decision - making. Without information about whether a foetus was healthy or severely malformed, a woman could not make crucial decisions regarding prenatal treatment or whether to carry the foetus to term. When a country permitted abortion in cases of foetal genetic defect, women must have access to prenatal genetic examinations in order to exercise their right to a legal abortion. 126. One way in which States interfered with a woman ’ s right to decide on a legal abortion was to make such abortions unavailable in practice. The Human Rights Committee had expressed concern regarding States that professed to grant women access to legal abortion but allowed practices to continue that interfered with actual access to abortion services. 127. Where a State allowed providers to conscientiously object to providing health services, it must ensure that it had other adequate procedures in place to safeguard women ’ s ability to effectively exercise their rights under Article 8 of the Convention, including the right to an abortion where legal and the right to information regarding their health status. 128. The consensus among UN Treaty Monitoring Bodies and international health organisations was that the right of a health care provider to conscientiously object to the provision of certain health care services must be carefully regulated so that it did not effectively deny a woman the right to obtain such services which were guaranteed by the law, in this case pursuant to Article 8 of the European Convention. 2. International Reproductive and Sexual Health Law Programme of the Law Faculty, University of Toronto 129. The protection of prenatal life was an important social and moral value in all Contracting Parties. However, it must be asked whether protecting this value was a legitimate reason to deny women access to prenatal tests that will assist them, rather than their doctors, to make informed decisions as to whether to pursue consequent treatment. 130. There was widespread regional and international recognition of the importance of ensuring women ’ s right to equal access to health care systems generally, and access to timely diagnostic treatment and lawful abortion. 131. Where uniform European standards existed regarding women ’ s timely access to medically-indicated diagnostic tests and consequent lawful treatment, Contracting Parties ’ margin of appreciation was greatly diminished. 132. The stereotype that motherhood was women ’ s natural role and destiny was discriminatory when it implied that all women should be treated only as mothers or potential mothers, and not according to their individual needs not to become mothers at certain points in their lives. When Contracting Parties incorporated such a stereotype into the delivery of health care services, it disadvantaged women. Discriminatory stereotypes limited the ability of individual women to make autonomous decisions about their health and their private and family life that could conflict with their role as mothers or future mothers. 133. Women should not be conditioned by State agents ’ withholding of available medical services that could diagnose severe foetal abnormalities when the law allowed them the private choice to terminate such pregnancies. 134. Accordingly, unjust denial or obstruction of diagnostic services on the basis of a woman ’ s express intention to terminate a pregnancy was an interference with private life. A pregnant woman ’ s suffering was too intimate and personal for the State to insist, without more, upon its own vision of the woman ’ s role, however dominant that vision had been in the course of our history and culture. The destiny of the woman must be shaped to a large extent by her own conception of her spiritual imperatives and her place in society. 135. Women ’ s private choices of the design and composition of their families should not be at the disposal of health care professionals or institutions that determine the allocation of available health care resources, or that seek to advance sex-specific norms based on religious or cultural ideologies through the denial of available diagnostic services in order to prevent outcomes of which they disapprove. 136. Women ’ s human right to control their own bodies affected their capacity to serve their families, including dependent children and often dependent elderly family members. The design and composition of women ’ s family life, including how they proportioned resources of time and energy among healthy and disabled children, and among children and elderly family members, was a matter of deep personal and emotional significance. 137. There was a wide consensus that in the administration of health ‑ care systems, Contracting Parties were obligated positively to ensure reasonable availability of diagnostic services to enable patients to have the information necessary to make medical decisions significant for their health and family well ‑ being. 138. This principle of free and informed decision - making was found in codes of medical ethics and was reflected in national laws, court decisions of Contracting Parties, international legal norms and their application, and international guidelines on medical practice. 139. Doctors can exploit their professional authority to treat female patients according to their own beliefs and sex-based stereotypes, rather than according to the actual needs of such patients. When patients were treated in ways unrelated to their own medical needs, and to their own priorities and aspirations, but rather as a means to advance doctors ’ own ends, there was a form of degrading treatment. Denying women the exercise of reproductive autonomy through obstructing timely access to prenatal diagnostic tests might likewise violate Article 3. Any resulting involuntary continuation of a legally terminable pregnancy, and the birth of a child with severe abnormalities, would constitute a form of inhuman and degrading treatment. 140. Contracting Parties must account for the particular sex ‑ specific vulnerabilities of women seeking prenatal genetic diagnosis. Such women often had existing dependent children for whom they had to care. They faced a very stressful decision, perhaps one of the most difficult decisions in their lives. As a result, they required non-judgmental counseling that enabled them to think through their particular life circumstances, personal values and priorities, usually under severe time constraints. 141. When Contracting Parties, in regulating health care systems, subjected pregnant women, faced with the possibility of births of children with severe abnormalities, to circuitous or obstructive means to obtain information or treatment, with the effect that they were denied opportunities to make timely decisions about legal abortion services, there was a violation of Article 14 of the Convention in relation to its Article 3. 142. Contracting Parties should be required to observe guidelines on the provision of prenatal genetic diagnosis. Such guidelines should include the ethical principle to consider first the well-being of the patient, and to ensure that this principle was implemented, irrespective of the sex of the patient. 3. The International Federation of Gynaecology and Obstetrics 143. The International Federation of Gynaecology and Obstetrics (FIGO) submitted that it could be useful for the Court to be aware of the Federation ’ s and its Ethics Committee ’ s findings and recommendations on women ’ s access to medically indicated prenatal tests and exercise of reproductive choice, and on practitioners ’ exercise of rights of conscientious objection in a manner consistent with equal respect for the conscientious convictions of their colleagues and patients. The FIGO Ethics Committee recognised that some physicians might present false diagnostic or clinical reasons to decline to afford patients indicated care to which the physicians object, rather than “provide public notice of professional services they decline to undertake”. B. Alleged violation of Article 3 of the Convention 1. The parties ’ submissions 144. The Government submitted that on no occasion had the applicant been subjected to treatment which would result in a breach of Article 3 of the Convention. The applicant might have felt some stress or discomfort, but the treatment complained of had not approached the threshold of severity sufficient for it to fall within the ambit of this provision. Even assuming that the applicant ’ s conversations with some doctors could have been stressful or unpleasant, or that the doctors had expressed their views in a rude or impolite manner, as the applicant seemed to consider, this did not raise any issue under Article 3. In so far as the applicant was of the view that the doctors had treated her in a dismissive and contemptuous manner, repeatedly criticising her for her efforts to obtain access to prenatal testing and for the fact that she had envisaged a termination, the Government argued that nothing in the facts of the case suggested behaviour contrary to Article 3 of the Convention. The applicant ’ s allegations of an intentional failure to provide necessary medical treatment had no basis in the facts of the case. The Government rejected the supposition that inhuman or degrading treatment could result from the State ’ s failure to enact what the applicant perceived as adequate legislation. 145. The applicant complained under Article 3 of the Convention that she had been subjected to inhuman and degrading treatment as a result of the doctors ’ intentional failure to provide necessary medical treatment in the form of timely prenatal examinations that would have allowed her to take a decision as to whether to continue or terminate her pregnancy within the time-limit laid down by the 1993 Act. She also complained that the doctors had treated her in a dismissive and contemptuous manner, repeatedly criticising her for her efforts to have prenatal tests carried out and for the fact that she had envisaged an abortion as a possible solution to her predicament. 146. The applicant submitted that the repeated and intentional denial of timely medical care had been aimed at preventing her from having recourse to a legal abortion. The way in which she had been treated by the medical staff, including but not limited to degrading remarks related to her seeking medical information and tests which she had been legally entitled to receive, her unnecessary confinement for days in the Kraków hospital without explanation, only to conduct simple tests unrelated to genetic testing, and the unavailability of genetic testing within large areas of the country, as admitted by the State, had been humiliating and degrading and had had a continuing impact on the applicant ’ s life. 147. The applicant further argued that she had been under additional duress because she had been aware that if the malformation had been severe enough she would seek a legal abortion, but could only do so within the time- limits allowed by law. Her husband had also wished for a legal abortion in the event of malformation of the foetus. She had known that had she been unable to obtain an abortion, she would be faced with having to raise a child affected with a lifelong ailment. This set of circumstances had caused her much distress and anxiety. The doctors had known about the time restrictions and about her position on terminating her pregnancy, but they had manipulated her and procrastinated, despite the obvious fact that termination of pregnancy was more dangerous later than earlier. Furthermore, Dr S. B. ’ s contemptuous attitude towards the applicant had been clearly shown in his interview. 2. The Court ’ s assessment (a) General principles 148. According to the Court ’ s well-established case-law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum level of severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see, among many other authorities, Price v. the United Kingdom, no. 33394/96, § 24, ECHR 2001- VII; Kupczak v. Poland, no. 2627/09, § 58, 25 January 2011; Jalloh v. Germany [GC], no. 54810/00, § ..., ECHR 2006 ‑ IX). 149. Treatment has been held by the Court to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering (see Labita, Labita v. Italy [GC], no. 26772/95, § 120, ECHR 2000 ‑ IV ). 150. Treatment has been considered “degrading” when it was such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them (see, among many other authorities, Iwańczuk v. Poland, no. 25196/94, § 51, 15 November 2001; Wiktorko v. Poland, no. 14612/02, § 45, 31 March 2009 ). 151. Although the purpose of such treatment is a factor to be taken into account, in particular whether it was intended to humiliate or debase the victim, the absence of any such purpose does not inevitably lead to a finding that there has been no violation of Article 3. For example, the Court has found violations of that provision in many cases where the authorities dealt with requests to provide information of crucial importance for the applicants, for example about the whereabouts and fate of their missing relatives, disclosing a callous disregard for their vulnerability and distress (see, among many other authorities, Kukayev v. Russia, no. 29361/02, §§ 102 ‑ 106; 15 November 2007; Takhayeva and Others v. Russia, no. 23286/04, § § 102-104, 18 September 2008 ). 152. Moreover, it cannot be excluded that the acts and omissions of the authorities in the field of health care policy may in certain circumstances engage their responsibility under Article 3 by reason of their failure to provide appropriate medical treatment (see, for example, Powell v. the United Kingdom (dec.), no. 45305/99, ECHR 2000-V). (b) Application of the principles to the circumstances of the case 153. Turning to the circumstances of the present case, the Court observes that the results of the ultrasound scan carried out in the 1 8 th week of the applicant ’ s pregnancy confirmed the likelihood that the foetus was affected with an unidentified malformation (see paragraph 9 above). Following that scan the applicant feared that the foetus was affected with a genetic disorder and that, in the light of the results of subsequent scans her fears cannot be said to have been without foundation. She tried, repeatedly and with perseverance, through numerous visits to doctors and through her written requests and complaints, to obtain access to genetic tests which would have provided her with information confirming or dispelling her fears; to no avail. For weeks she was made to believe that she would undergo the necessary tests. She was repeatedly sent to various doctors, clinics and hospitals far from her home and even hospitalised for several days for no clear clinical purpose (see paragraph 20 above ). The Court finds that the determination of whether the applicant should have access to genetic testing, recommended by doctors in light of the findings of the second ultrasound scan, was marred by procrastination, confusion and lack of proper counselling and information given to the applicant. Ultimately, it was only by following the advice given by Professor K.Sz., the only doctor who was sympathetic to her plight, that the applicant obtained admission to a hospital in Łódź by means of subterfuge. She reported to that hospital as an emergency patient and finally had the tests conducted in the 23 rd week of her pregnancy, on 26 March 2002. The applicant obtained the results on 9 April 2002, two weeks later. 154. The Court notes that it was not in dispute that it was possible only by means of genetic tests to establish, objectively and in the manner dictated by modern medical science and technology, whether the initial diagnosis was correct. Indeed, this was never challenged either by the Government in the proceedings before the Court or by the defendants in the domestic civil proceedings. 155. The Court further notes that it has not been argued, let alone shown, that at the material time genetic testing as such was unavailable for lack of equipment, medical expertise or funding. On no occasion was the applicant told that it was impossible to carry out the tests for any kind of technical or material reasons. 156. In this connection, the Court cannot but note that the 1993 Act determining the conditions permitting termination of pregnancy expressly and unequivocally provides, and provided at the relevant time, for the State ’ s obligation to ensure unimpeded access to prenatal information and testing. Section 2 (a) of this Act imposed such an obligation on the State and local administration in particular in cases of suspicion of genetic disorder or development problems. This obligation covered all cases in which such suspicion arose in respect of a pregnancy, with no distinction whatsoever being drawn in the Act based on the severity of the suspected ailment (see paragraph 66 above). 157. The Court further observes that the Medical Profession Act clearly provides and provided at the material time for a general obligation for doctors to give patients comprehensible information about their condition, the diagnosis, the proposed and possible diagnostic and therapeutic methods, the foreseeable consequences of a decision to have recourse to them or not, the possible results of the therapy and about the prognosis (see paragraph 74 above). Likewise, the Medical Institutions Act, applicable at the material time, provided for patients ’ right to obtain comprehensive information on their health (see paragraph 72 above). Hence, there was an array of unequivocal legal provisions in force at the relevant time specifying the State ’ s positive obligations towards pregnant women regarding their access to information about their health and that of the foetus. 158. However, there is no indication that the legal obligations of the State and of the medical staff regarding the applicant ’ s patient ’ s rights were taken into consideration by the persons and institutions dealing with the applicant ’ s requests to have access to genetic testing. 159. The Court notes that the applicant was in a situation of great vulnerability. Like any other pregnant woman in her situation, she was deeply distressed by information that the foetus could be affected with some malformation. It was therefore natural that she wanted to obtain as much information as possible so as to find out whether the initial diagnosis was correct, and if so, what was the exact nature of the ailment. She also wanted to find out about the options available to her. As a result of the procrastination of the health professionals as described above, she had to endure weeks of painful uncertainty concerning the health of the foetus, her own and her family ’ s future and the prospect of raising a child suffering from an incurable ailment. She suffered acute anguish through having to think about how she and her family would be able to ensure the child ’ s welfare, happiness and appropriate long-term medical care. Her concerns were not properly acknowledged and addressed by the health professionals dealing with her case. The Court emphasises that six weeks elapsed between 20 February 2002 when the first ultrasound scan gave rise, for the first time, to a suspicion regarding the foetus ’ condition and 9 April 2002 when the applicant finally obtained the information she was seeking, confirmed by way of genetic testing. No regard was had to the temporal aspect of the applicant ’ s predicament. She obtained the results of the tests when it was already too late for her to make an informed decision on whether to continue the pregnancy or to have recourse to legal abortion as the time limit provided for by section 4 (a) paragraph 2 had already expired. 160. The Court is further of the view that the applicant ’ s suffering, both before the results of the tests became known and after that date, could be said to have been aggravated by the fact that the diagnostic services which she had requested early on were at all times available and that she was entitled as a matter of domestic law to avail herself of them. It is a matter of great regret that the applicant was so shabbily treated by the doctors dealing with her case. The Court can only agree with the Polish Supreme Court ’ s view that the applicant had been humiliated (see paragraph 54 above). 161. The Court is of the view that the applicant ’ s suffering reached the minimum threshold of severity under Article 3 of the Convention. 162. The Court concludes that there has therefore been a breach of that provision. C. Alleged violation of Article 8 of the Convention 1. The parties ’ submissions (a) The Government 163. The Government submitted that pregnancy and its interruption did not, as a matter of principle, pertain uniquely to the sphere of the mother ’ s private life. Whenever a woman was pregnant, her private life became closely connected with the developing foetus. There could be no doubt that certain interests relating to pregnancy were legally protected ( Eur. Comm. HR, Brüggemann and Scheuten v. Germany, Report of 12 July 1977, DR 10, p. 100). Polish law protected the human foetus in the same manner as the mother ’ s life and it therefore allowed for termination of pregnancy only in the circumstances prescribed in the 1993 Act. The Government were of the view that in the applicant ’ s case the conditions for lawful termination had not been met. 164. The Government argued that in the applicant ’ s case the Court should not focus solely on the question of whether the applicant had been deprived of her right to receive genetic counselling. They stressed that ultimately the applicant had obtained access to a prenatal genetic examination, as requested. 165. If the applicant was of the view that as a result of the delay in having access to genetic tests she had been deprived of the possibility of terminating her pregnancy, then the question arose whether in her case such a possibility genuinely existed on the basis of the Act. However, this could not be determined with the requisite clarity, as at the material time there had been no consensus in Poland as to whether Turner syndrome could be said to be a serious enough malformation within the meaning of the 1993 Act to justify a legal abortion. Moreover, the medical expert opinion prepared for the purposes of the criminal investigation indicated that Turner syndrome did not qualify as either a severe or a life-threatening condition. Hence, the doctors involved in the applicant ’ s case could not have issued a certificate authorising termination. Insofar as the applicant seemed to imply that another foetal malformation – Edwards syndrome – had been suspected, her medical records did not show this to have been the case. In any event, if the applicant relied primarily on what she perceived as her right to have an abortion on the grounds of foetal malformation, the Government were of the view that such a right could not be derived from the State ’ s positive obligation to guarantee adequate health care. Furthermore, according to the Government ’ s submission, any genetic examination of the foetus had at that time to be performed prior to the 22 nd week of pregnancy. 166. The Government further submitted that they strongly disagreed with the reasoning adopted by the Court in its judgment in the case of Tysiąc v. Poland, concerning the potential threat to the pregnant woman ’ s health caused by pregnancy and by the refusal of termination. However, even if the present case were to be assessed from the point of view of the principles developed in that judgment, no support could be found therein for the applicant ’ s position. The question of voluntary termination of pregnancy for eugenic reasons, concerned in the present case, could not be derived from the State ’ s positive obligations to provide adequate medical care. 167. If, on the other hand, the applicant held the State responsible for the delay in her access to genetic testing, the Government argued that she herself had contributed to that delay as she had insisted on having genetic testing carried out in a particular hospital, in Łódź, outside her region. This had inevitably led to the prolongation of the relevant procedures. 168. The Government further referred to the provisions of the Minister of Health ’ s Ordinance of 22 January 1997 (see paragraph 6 8 above ), arguing that it provided for a procedure governing decisions on access to abortion. They further stated that section 37 of the Medical Professions Act 1996 made it possible for a patient to have a decision taken by a doctor as to the advisability of an abortion reviewed by his or her colleagues. In the present case, Dr S.B. had offered the applicant the possibility of convening a panel of doctors to examine her case, but the applicant had refused. 169. Lastly, the Government argued that the applicant should have availed herself of the procedural possibilities provided for by administrative law. The public health institutions should be considered as administrative agencies, subject to the provisions of the Code of Administrative Procedure. Consequently, the refusal of admission to a hospital for the purposes of a voluntary termination constituted an administrative decision of the hospital ’ s management and, as such, was subject to administrative supervision procedures provided for by that Code. (b) The applicant 170. The applicant submitted that the public powers ’ failure to implement laws and regulations governing access to prenatal examinations and termination of pregnancy in the context of sections 2 (2) (a) and 4(a) of the 1993 Act, including the lack of procedures to ensure whether the conditions for a lawful abortion under section 4 (a) had been met, and the failure to implement and oversee the laws governing the practice of conscientious objection, resulted in insufficient protection of her rights guaranteed by the Convention. 171. The 1993 Act itself did not contain any procedural provisions. The 1997 Ordinance, referred to by the Government, did not provide for any particular procedural framework to address and resolve controversies arising in connection with the availability of lawful abortion. Section 37 of the Physicians ’ Act did not provide for review of medical decisions, but simply granted doctors discretion to seek a second opinion from a colleague. It did not provide for a mechanism which could be invoked by a patient. Insofar as the Government relied on the administrative procedure, diagnostic or therapeutic decisions were not decisions in the administrative sense and could not be challenged under the provisions of the Code of Administrative Procedure. 172. The applicant further referred to the Council of Europe ’ s Committee of Ministers ’ Recommendation No. R (90)13 to Member States on Prenatal Genetic Screening, Prenatal Genetic Diagnosis, and Associated Genetic Counselling (see paragraph 81 above). It stated that where there was an increased risk of passing on a serious genetic disorder, access to preconception counselling and diagnostic services should be readily available. Moreover, the applicant argued that many Council of Europe member States included prenatal examinations as part of routine obstetric services. When an ultrasound scan indicated a possibility of the foetus having a genetic disorder, genetic counselling and examination were made available according to detailed guidelines adopted through State regulations. In the present case, however, the applicant had been unable to obtain timely access to genetic testing, which clearly contravened the applicable principles. 173. The applicant submitted that the violation of her rights had originated also in the unregulated practice of conscientious objection. The refusal of the Kraków University Hospital to provide certain services on grounds of conscientious objection constituted a failure to ensure the availability and accessibility of reproductive health services. The public health care institutions, being public entities, had a duty to provide legal health services to the public. The State had a duty to ensure that the laws governing conscientious objection were complemented by implementing regulations or guidelines balancing the medical staff ’ s right to object against the patient ’ s rights to obtain access to lawful medical services. 174. Furthermore, the applicant emphasised that in any event health care providers should not be allowed to rely on conscientious objection in respect of diagnostic services. In the present case Doctors K. R. and S. B. had effectively refused to provide diagnostic care out of concern that the applicant, having obtained the diagnostic results, might seek the termination of her pregnancy. The applicant submitted that under the established medical doctrine of informed consent, patients should be informed of all risks, benefits and alternatives to treatment in order to make a free and informed decision in their best interest. Refusing to diagnose a potentially serious illness on the basis that the diagnosis might subsequently lead to a therapeutic act to which the doctor concerned objected on grounds of conscience was incompatible with the very concept of conscientious objection. 175. The applicant argued that this confusion was clearly demonstrated also by the Government ’ s argument that the decision whether to give the applicant access to genetic testing hinged on whether the termination of pregnancy was considered safe in her circumstances and, also, on whether the time-limits for termination of pregnancy provided for by the 1993 Act were respected. The Government had further stated that any genetic examination of a foetus should be performed prior to the 22nd week of pregnancy (see paragraph 1 64 above). These statements clearly implied the existence in medical practice in Poland at the material time of a misconception that all women, including the applicant, seeking to undergo prenatal genetic examination did so solely for the purpose of terminating their pregnancies. As a result, because of the politically charged climate surrounding abortion, women were often unable to obtain access to prenatal genetic testing. 176. The applicant had also been denied adequate and timely medical care in the form of prenatal genetic examinations. Such testing would have made it possible to establish whether in her case the conditions existed for a lawful termination of pregnancy within the meaning of the 1993 Act. This breach of the Convention had occurred because the State had failed to provide a legal framework regulating disagreements between a pregnant woman and doctors as to the need to have prenatal genetic tests carried out or to terminate pregnancy (see, in the latter respect, the case of Tysiąc v. Poland, cited above, § 121 ). Nor was a procedure available for having decisions taken by doctors in respect of a woman ’ s request for termination of pregnancy reviewed or supervised, even on grounds of foetal abnormalities. The State was under a positive obligation to create a legal mechanism for handling such cases, including the provision of a precise time-frame within which a decision should be taken. However, the Polish State had failed in its duty. The applicant referred in this connection also to the lack of adequate regulations and oversight in cases such as hers, where doctors or public medical institutions refused to provide medical services and invoked the conscience clause. 177. Under the applicable law, in order to be lawful, an abortion on grounds of foetal abnormality had to be carried out before the foetus became viable, which was normally thought to be in the 24th week of pregnancy. In the applicant ’ s case, the absence of a proper procedural framework had resulted in procrastination, with the result that during her pregnancy she had suffered growing fear, anguish and uncertainty. She had also been denied a right to a legal abortion which she had under domestic law. 178. She finally submitted that she had given birth to child suffering from a severe ailment who required life - long medical care. As a result, her life and that of her family had been irremediably and negatively affected, not only by her suffering over the fate of her ill daughter, but also by the necessity of providing her with special day-to-day care and organising regular specialised medical care, which was costly and relatively difficult to obtain in Poland. She submitted that bringing up and educating a severely ill child had taken a toll on her mental health and well-being, as well as that of her other two children. Her husband had left her after the baby had been born. 3. The Court ’ s assessment ( a ) Applicability of Article 8 of the Convention 179. The Court first observes that it is not disputed between the parties that Article 8 is applicable to the circumstances of the case in so far as it relates to the applicant ’ s right to respect for her private life. 180. The Court reiterates that “private life” is a broad concept, encompassing, inter alia, the right to personal autonomy and personal development (see, among many other authorities, Bensaid v. the United Kingdom, no. 44599/98, § 47, ECHR 2001-I ). The Court has held that the notion of personal autonomy is an important principle underlying the interpretation of its guarantees (see Pretty v. the United Kingdom, no. 2346/02, § 61, ECHR 2002-III). The notion of private life concerns subjects such as gender identification, sexual orientation and sexual life ( Dudgeon v. the United Kingdom, judgment of 22 October 1981, Series A no. 45, pp. 18-19, § 41, and Laskey, Jaggard and Brown v. the United Kingdom, judgment of 19 February 1997, Reports of Judgments and Decisions 1997-I, p. 131, § 36) a person ’ s physical and psychological integrity ( Tysiąc v. Poland, cited above, § 107, ECHR 2007 ‑ IV ). The Court has also held that the notion of private live applies to decisions both to have or not to have a child or to become parents ( Evans v. the United Kingdom [GC], no. 6339/05, § 71, ECHR 2007 ‑ IV ). 181. The Court has previously found, citing with approval the case-law of the former Commission, that the decision of a pregnant woman to continue her pregnancy or not belongs to the sphere of private life and autonomy. Consequently, also legislation regulating the interruption of pregnancy touches upon the sphere of private life, since whenever a woman is pregnant her private life becomes closely connected with the developing foetus ( Eur.Comm. HR, Bruggeman and Scheuten v. Germany, cited above; Boso v. Italy (dec.), no. 50490/99, ECHR 2002 ‑ VII; Vo v. France [GC], no. 53924/00, § 76, ECHR 2004 ‑ VIII; Tysiąc, cited above, §§ 106-107; A, B and C v. Ireland [GC], no. 25579/05, § 212, 16 December 2010 ). It is also clear from an examination of these cases that the issue has always been determined by weighing up various, and sometimes conflicting, rights or freedoms claimed by a mother or a father in relation to one another or vis ‑ à ‑ vis the foetus ( Vo v. France, cited above, § 82). 182. The Court concludes that Article 8 of the Convention is applicable to the circumstances of the case. ( b ) General principles 183. The essential object of Article 8 is to protect the individual against arbitrary interference by public authorities. Any interference under the first paragraph of Article 8 must be justified in terms of the second paragraph, namely as being “in accordance with the law” and “necessary in a democratic society” for one or more of the legitimate aims listed therein. According to settled case-law, the notion of necessity implies that the interference corresponds to a pressing social need and, in particular that it is proportionate to one of the legitimate aims pursued by the authorities (see, among other authorities, Olsson v. Sweden (No. 1), judgment of 24 March 1988, Series A no. 130, § 67). 184. In addition, there may also be positive obligations inherent in effective “respect” for private life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of relations between individuals, including both the provision of a regulatory framework of adjudicatory and enforcement machinery protecting individuals ’ rights and the implementation, where appropriate, of specific measures (see, among other authorities, X and Y v. the Netherlands, judgment of 26 March 1985, Series A no. 91, p. 11, § 23). 185. The Court has previously found States to be under a positive obligation to secure to its citizens their right to effective respect for their physical and psychological integrity ( Glass v. the United Kingdom, no. 61827/00, §§ 74-83, ECHR 2004 ‑ II; Sentges v. the Netherlands (dec.) no. 27677/02, 8 July 2003; Pentiacova and Others v. Moldova (dec.), no. 14462/03, ECHR 2005-...; Nitecki v. Poland (dec.), no. 65653/01, 21 March 2002; Odièvre v. France [GC], cited above, § 42). In addition, these obligations may involve the adoption of measures, including the provision of an effective and accessible means of protecting the right to respect for private life ( Airey v. Ireland, 9 October 1979, § 33, Series A no. 32; McGinley and Egan v. the United Kingdom, 9 June 1998, § 101, Reports of Judgments and Decisions 1998 ‑ III; and Roche v. the United Kingdom [GC], no. 32555/96, § 162, ECHR 2005 ‑ X ) including both the provision of a regulatory framework of adjudicatory and enforcement machinery protecting individuals ’ rights and the implementation, where appropriate, of specific measures in the context of abortion ( Tysiąc v. Poland, cited above, § 110; A, B and C v. Ireland [GC], cited above, § 245 ). 186. The Court has already held that the issue of when the right to life begins comes within the margin of appreciation which the Court generally considers that States should enjoy in this sphere, notwithstanding an evolutive interpretation of the Convention, a “living instrument which must be interpreted in the light of present-day conditions” (see, among many other authorities, E.B. v. France [GC], no. 43546/02, § 92, ECHR 2008-... ). The reasons for that conclusion are that the issue of such protection has not been resolved within the majority of the Contracting States themselves and that there is no European consensus on the scientific and legal definition of the beginning of life ( Vo v. France, cited above, § 82 ). However, the Court considers that there is indeed a consensus amongst a substantial majority of the Contracting States of the Council of Europe towards allowing abortion and that most Contracting Parties have in their legislation resolved the conflicting rights of the foetus and the mother in favour of greater access to abortion (see ( A, B and C v. Ireland [GC], cited above, 16 December 2010, § § 235 and 237). Since the rights claimed on behalf of the foetus and those of the mother are inextricably interconnected, the margin of appreciation accorded to a State ’ s protection of the unborn necessarily translates into a margin of appreciation for that State as to how it balances the conflicting rights of the mother. In the absence of such common approach regarding the beginning of life, the examination of national legal solutions as applied to the circumstances of individual cases is of particular importance also for the assessment of whether a fair balance between individual rights and the public interest has been maintained (see also, for such an approach, A, B, and C cited above, § 214). 187. Moreover, as in the negative obligation context, the State enjoys a certain margin of appreciation (see, among other authorities, Keegan v. Ireland, judgment of 26 May 1994, Series A no. 290, § 49). While a broad margin of appreciation is accorded to the State as regards the circumstances in which an abortion will be permitted in a State, once that decision is taken the legal framework devised for this purpose should be “shaped in a coherent manner which allows the different legitimate interests involved to be taken into account adequately and in accordance with the obligations deriving from the Convention” ( A, B and C v. Ireland [GC], cited above, § 249). 188. The Court notes the applicant ’ s submission that the failure to allow her timely access to prenatal genetic tests had amounted to an interference with her rights guaranteed by Article 8. Furthermore, the Court has found that prohibition of the termination of pregnancies sought for reasons of health and /or well-being amounted to an interference with the applicants ’ right to respect for their private lives (see A., B., and C. v. Ireland, cited above, § 216). However, in the present case the Court is confronted with a particular combination of a general right of access to information about one ’ s health with the right to decide on the continuation of pregnancy. Compliance with the State ’ s positive obligation to secure to their citizens their right to effective respect for their physical and psychological integrity may necessitate, in turn, the adoption of regulations concerning access to information about an individual ’ s health ( Guerra and Others v. Italy, 19 February 1998, § 60, Reports 1998 ‑ I; Roche v. the United Kingdom [GC], no. 32555/96, § 155, ECHR 2005 ‑ X; K.H. and Others v. Slovakia, no. 32881/04, §§ 50-56, ECHR 2009 ‑ ... (extracts) ). Hence, and since the nature of the right to decide on the continuation of pregnancy is not absolute, the Court is of the view that the circumstances of the present case are more appropriately examined from the standpoint of the respondent State ’ s positive obligations arising under this provision of the Convention (see, mutatis mutandis, Tysiąc v. Poland, cited above, § 108 ). 189. The boundaries between the State ’ s positive and negative obligations under this provision do not lend themselves to precise definition. The applicable principles are nonetheless similar. In both the negative and positive contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation (see, among other authorities, Keegan v. Ireland, judgment of 26 May 1994, Series A no. 290, p. 19, § 49; and Różański v. Poland, no. 55339/00, § 61, 18 May 2006). While the State regulations on abortion relate to the traditional balancing of privacy and the public interest, they must – in case of a therapeutic abortion – be also assessed against the positive obligations of the State to secure the physical integrity of mothers ‑ to ‑ be (see Tysiąc v. Poland, cited above, § 107). 190. The notion of “respect” is not clear ‑ cut, especially as far as those positive obligations are concerned: having regard to the diversity of the practices followed and the situations obtaining in the Contracting States, the notion ’ s requirements will vary considerably from case to case. Nonetheless, in assessing the positive obligations of the State it must be borne in mind that the rule of law, one of the fundamental principles of a democratic society, is inherent in all the Articles of the Convention (see, e.g., Armonienė v. Lithuania, no. 36919/02, § 38, 25 November 2008; Zehnalová and Zehnal v. the Czech Republic (dec.), no. 38621/97, ECHR 2002-V). Compliance with requirements imposed by the rule of law presupposes that the rules of domestic law must provide a measure of legal protection against arbitrary interferences by public authorities with the rights safeguarded by the Convention (see Malone v. the United Kingdom, judgment of 2 August 1984, Series A no. 82, p. 32, § 67; Segerstedt ‑ Wiberg and Others v. Sweden, no. 62332/00, § 76, ECHR 2006 ‑ VII ). 191. Finally, the Court reiterates that in the assessment of the present case it should be borne in mind that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective (see Airey v. Ireland, judgment of 9 October 1979, Series A no. 32, p. 12 ‑ 13, § 24). Whilst Article 8 contains no explicit procedural requirements, it is important for the effective enjoyment of the rights guaranteed by this provision that the relevant decision ‑ making process is fair and such as to afford due respect for the interests safeguarded by it. What has to be determined is whether, having regard to the particular circumstances of the case and notably the nature of the decisions to be taken, an individual has been involved in the decision-making process, seen as a whole, to a degree sufficient to provide her or him with the requisite protection of their interests ( see, mutatis mutandis, W. v. the United Kingdom, judgment of 8 July 1987, Series A no. 121, pp. 28 ‑ 29, §§ 62 and 64). The Court has already held that in the context of access to abortion a relevant procedure should guarantee to a pregnant woman at least a possibility to be heard in person and to have her views considered. The competent body or person should also issue written grounds for its decision (see Tysiąc v. Poland, cited above, § 117). ( c ) Compliance with Article 8 of the Convention 192. When examining the circumstances of the present case, the Court cannot overlook its general national context. It notes that the 1993 Act specifies situations in which abortion is allowed. A doctor who terminates a pregnancy in breach of the conditions specified in that Act is guilty of a criminal offence punishable by up to three years ’ imprisonment (see paragraph 70 above). 193. The Court has already found that the legal restrictions on abortion in Poland, taken together with the risk of their incurring criminal responsibility under Article 156 § 1 of the Criminal Code, can well have a chilling effect on doctors when deciding whether the requirements of legal abortion are met in an individual case (see Tysiąc v. Poland, no. 5410/03, § 116, ECHR 2007 ‑ IV). It further notes that in the circumstances of the present case this was borne out also by the fact that the T. hospital ’ s lawyer was asked to give an opinion on steps to be taken with a view to ensuring that the conditions of the 1993 Act as to the availability of abortion were respected. The Court is of the view that provisions regulating the availability of lawful abortion should be formulated in such a way as to alleviate this chilling effect. 194. The Court further notes that in its fifth periodical report to the ICCPR Committee, relevant for the assessment of the circumstances obtaining at the relevant time, the Polish Government acknowledged, inter alia, that there had been deficiencies in the manner in which the 1993 Act had been applied in practice (see paragraph 84 above). It further notes the concern expressed by the Committee on the Elimination of Discrimination against Women as regards access by women in Poland to reproductive health services and to lawful abortion (see paragraph 86 above). 195. The Court notes that in its judgment in the case Tysiąc v. Poland, referred to above, it highlighted the importance of procedural safeguards in the context of the implementation of the 1993 Act in situations where a pregnant woman had objective grounds for fearing that pregnancy and delivery would have a serious negative impact on her health. In that case the Court held that Polish law did not contain any effective procedural mechanisms capable of determining whether the conditions existed for obtaining a lawful abortion on the grounds of danger to the mother ’ s health which the pregnancy might present, or of addressing the mother ’ s legitimate fears (see Tysiąc v. Poland, cited above, § § 119 – 124, ECHR 2007 ‑ IV). 196. The Court discerns certain differences between the issues concerned in the Tysiąc v. Poland case and those to be examined in the context of the present case, where the applicant persistently but unsuccessfully sought access to prenatal genetic testing. It was not access to abortion as such which was primarily in issue, but essentially timely access to a medical diagnostic service that would, in turn, make it possible to determine whether the conditions for lawful abortion obtained in the applicant ’ s situation or not. Hence, the starting point for the Court ’ s analysis is the question of an individual ’ s access to information about her or his health. 197. The right of access to such information falling within the ambit of the notion of private life can be said to comprise, in the Court ’ s view, on the one hand, a right to obtain available information on one ’ s condition. The Court further considers that during pregnancy the foetus ’ condition and health constitute an element of the pregnant woman ’ s health (see Eur. Comm. HR, Bruggeman and Schouten v. Germany, cited above, § 59, mutatis mutandis ). The effective exercise of this right is often decisive for the possibility of exercising personal autonomy, also covered by Article 8 of the Convention ( Pretty v. the United Kingdom, cited above, § 61, ECHR 2002 ‑ III ) by deciding, on the basis of such information, on the future course of events relevant for the individual ’ s quality of life (e.g. by refusing consent to medical treatment or by requesting a given form of treatment). The significance of timely access to information concerning one ’ s condition applies with particular force to situations where rapid developments in the individual ’ s condition occur and his or her capacity to take relevant decisions is thereby reduced. In the same vein, in the context of pregnancy, the effective access to relevant information on the mother ’ s and foetus ’ health, where legislation allows for abortion in certain situations, is directly relevant for the exercise of personal autonomy. 198. In the present case the essential problem was precisely that of access to medical procedures, enabling the applicant to acquire full information about the foetus ’ health. While the Convention does not guarantee as such a right to free medical care or to specific medical services, in a number of cases the Court has held that Article 8 is relevant to complaints about insufficient availability of health care services ( Nitecki v. Poland (dec.), cited above; Pentiacova and Others v. Moldova (dec.), cited above ). The present case differs from cases where the applicants complained about denial of or difficulties in obtaining access to certain health services for reasons of insufficient funding or availability. The Court has already found that it has not been argued, let alone shown, that there were any objective reasons why the genetic tests were not carried out immediately after the suspicions as to the foetus ’ condition had arisen but only after a lengthy delay (see paragraph 154 above). The difficulties the applicant experienced seem to have been caused, in part, by reticence on the part of certain doctors involved to issue a referral, and also by a certain organisational and administrative confusion in the health system at the material time as to the procedure applicable in cases of patients seeking services available outside their particular region of the then Medical Insurance Fund and the modalities of reimbursement between the regions of costs incurred in connection with such services. 199. The Court emphasises the relevance of the information which the applicant sought to obtain by way of genetic testing to the decision concerning continuation of her pregnancy. The 1993 Act allows for an abortion to be carried out before the foetus is capable of surviving outside the mother ’ s body if prenatal tests or other medical findings indicate a high risk that the foetus will be severely and irreversibly damaged or suffer from an incurable life ‑ threatening ailment. Hence, access to full and reliable information on the foetus ’ health is not only important for the comfort of the pregnant woman but also a necessary prerequisite for a legally permitted possibility to have an abortion to arise. 200. In this context, the Court reiterates its finding made in the case of Tysiąc v. Poland that once the State, acting within the limits of the margin of appreciation, referred to above, adopts statutory regulations allowing abortion in some situations, it must not structure its legal framework in a way which would limit real possibilities to obtain it. In particular, the State is under a positive obligation to create a procedural framework enabling a pregnant woman to exercise her right of access to lawful abortion ( Tysiąc v. Poland, no. 5410/03, §§ 116 - 124, ECHR 2007 ‑ IV ). In other words, if the domestic law allows for abortion in cases of foetal malformation, there must be an adequate legal and procedural framework to guarantee that relevant, full and reliable information on the foetus ’ health is available to pregnant women. 201. In the present case, the Court reiterates that six weeks elapsed from the date when the first concerns arose regarding the foetus ’ health until their confirmation by way of genetic tests (see also paragraph 152 above). 202. The Court stresses that it is not its function to question doctors ’ clinical judgment (see Glass v. the United Kingdom, cited above). It is therefore not for the Court to embark on any attempt to determine the severity of the condition with which the doctors suspected that the foetus was affected, or whether that suspected condition could have been regarded as entitling the applicant to a legal abortion available under the provisions of section 4 (a) of that Act. In the Court ’ s view this is wholly irrelevant for the assessment of the case at hand, given that the legal obligation to secure access to pre-natal genetic testing arose under the provisions of the 1993 Act regardless of the nature and severity of the suspected condition (see paragraph 66 above). 203. The Court observes that the nature of the issues involved in a woman ’ s decision to terminate a pregnancy is such that the time factor is of critical importance. The procedures in place should therefore ensure that such decisions are taken in good time. The Court is of the view that there was ample time between week 18 of the pregnancy, when the suspicions first arose, and week 22, the stage of pregnancy at which it is generally accepted that the foetus is capable of surviving outside the mother ’ s body and regarded as time-limit for legal abortion, to carry out genetic testing. The Court notes that the Supreme Court criticised the conduct of the medical professionals who had been involved in the applicant ’ s case and the procrastination shown in deciding whether to give the applicant a referral for genetic tests. Such a critical assessment on the part of the highest domestic judicial authority is certainly, in the Court ’ s view, of relevance for the overall assessment of the circumstances of the case. 204. As a result, the applicant was unable to obtain a diagnosis of the foetus ’ condition, established with the requisite certainty, by genetic tests within the time-limit for abortion to remain a lawful option for her. 205. In so far as the Government argued that in the present case access to genetic testing was closely linked, to the point of being identical, with access to abortion (see paragraph 112 above), the Court observes that prenatal genetic tests serve various purposes and they should not be identified with encouraging pregnant women to seek an abortion. Firstly, they can simply dispel the suspicion that the foetus was affected with some malformation; secondly, a woman carrying the foetus concerned can well choose to carry the pregnancy to term and have the baby; thirdly, in some cases (although not in the present one), prenatal diagnosis of an ailment makes it possible to embark on prenatal treatment; fourthly, even in the event of a negative diagnosis, it gives the woman and her family time to prepare for the birth of a baby affected with an ailment, in terms of counselling and coping with the stress occasioned by such a diagnosis. Furthermore, the Court emphasises that the 1993 Act clearly provides for a possibility of abortion in cases of certain malformations. It is not in dispute that some of these malformations could only be detected by way of prenatal genetic tests. Therefore the Government ’ s argument has failed to convince the Court. 206. In so far as the Government referred in their submissions to the right of physicians to refuse certain services on grounds of conscience and referred to Article 9 of the Convention, the Court reiterates that the word “practice” used in Article 9 § 1 does not denote each and every act or form of behaviour motivated or inspired by a religion or a belief (see Pichon and Sajous v. France (dec.), no. 49853/99, ECHR 2001-X). For the Court, States are obliged to organise the health services system in such a way as to ensure that an effective exercise of the freedom of conscience of health professionals in the professional context does not prevent patients from obtaining access to services to which they are entitled under the applicable legislation. 207. The Court further observes that the Government referred to the Ordinance of the Minister of Health of 22 January 1997 (see paragraph 68 above), arguing that it provided for a procedure governing decisions on access to abortion. However, the Court has already held that this Ordinance did not provide for any procedural framework to address and resolve controversies between the pregnant woman and her doctors or between the doctors themselves as to the availability of lawful abortion in an individual case (see Tysiąc v. Poland, cited above, § 121). 208. The Court concludes that it has not been demonstrated that Polish law as applied to the applicant ’ s case contained any effective mechanisms which would have enabled the applicant to seek access to a diagnostic service, decisive for the possibility of exercising her right to take an informed decision as to whether to seek an abortion or not. 209. In so far as the Government relied on the instruments of civil law as capable of addressing the applicant ’ s situation, the Court has already held, in the context of the case of Tysiąc v. Poland, cited above, that the provisions of the civil law as applied by the Polish courts did not afford the applicant a procedural instrument by which she could have fully vindicated her right to respect for her private life. The civil law remedy was solely of a retroactive and compensatory character. The Court was of the view that such retrospective measures alone were not sufficient to provide appropriate protection of personal rights of a pregnant woman in the context of a controversy concerning the determination of access to lawful abortion and emphasised the vulnerability of the woman ’ s position in such circumstances (see Tysiąc v. Poland, no. 5410/03, § 125, ECHR 2007 ‑ IV ). Given the retrospective nature of compensatory civil law, the Court fails to see any grounds on which to reach a different conclusion in the present case. It therefore considers that it had not been demonstrated that Polish law contained any effective mechanisms which would have enabled the applicant to have access to the available diagnostic services and to take, in the light of their results, an informed decision as to whether to seek an abortion or not. 210. Consequently, the Court considers that neither the medical consultation nor litigation options relied on by the Government constituted effective and accessible procedures which would have allowed the applicant to establish her right to a lawful abortion in Poland. The uncertainty generated by the lack of legislative implementation of Article 4 (a) 1.2 of the 1993 Family Planning Act, and more particularly by the lack of effective and accessible procedures to establish a right to an abortion under that provision, has resulted in a striking discordance between the theoretical right to a lawful abortion in Poland on grounds referred to in this provision and the reality of its practical implementation ( Christine Goodwin v. the United Kingdom [GC], cited above, at § § 77-78; and S. H. and Others v. Austria, cited above, at § 74, mutatis mutandis; A, B and C v. Ireland [GC], no. 25579/05, § § 263-264, 16 December 2010 ). 211. Having regard to the circumstances of the case as a whole, it cannot therefore be said that, by putting in place legal procedures which make it possible to vindicate her rights, the Polish State complied with its positive obligations to safeguard the applicant ’ s right to respect for her private life in the context of controversy over whether she should have had access to, firstly, prenatal genetic tests and subsequently, an abortion, had the applicant chosen this option for her. 212. The Court therefore dismisses the Government ’ s preliminary objection concerning civil litigation as an effective remedy. Furthermore, the Court, having regard to the circumstances of the case seen as a whole, has already found insufficient the award made by the domestic courts in the civil proceedings for the violations alleged by the applicant (see paragraphs 103 ‑ 108 above). Accordingly, it dismisses also the Government ’ s preliminary objection that the applicant had lost her status of a victim of a breach of Article 8 of the Convention. 213. The Court reiterates that effective implementation of Article 4 (a) 1.2 of the 1993 Family Planning Act would necessitate ensuring to pregnant women access to diagnostic services which would make it possible for them to establish or dispel a suspicion that the foetus may be affected with ailments. The Court has already found that in the present case it has not been established that such services were unavailable. Moreover, an effective implementation of the provisions of the 1993 Act cannot, in the Court ’ s view, be considered to impose a significant burden on the Polish State since it would amount to rendering operational a right to abortion already accorded in that Act in certain narrowly defined circumstances, including in certain cases of foetal malformation ( A, B and C v. Ireland [GC], cited above, § 261, mutatis mutandis ). While it is not for this Court to indicate the most appropriate means for the State to comply with its positive obligations ( Airey v. Ireland judgment, § 26; cited above), the Court notes that the legislation in many Contracting States has specified the conditions governing effective access to a lawful abortion and put in place various implementing procedural and institutional procedures ( Tysiąc v. Poland judgment, § 123). 214. The Court concludes that the authorities failed to comply with their positive obligations to secure to the applicant effective respect for her private life and that there has therefore been a breach of Article 8 of the Convention. D. Alleged violation of Article 13 of the Convention 215. The applicant complained that the failure of the Polish authorities to create a legal mechanism that would have allowed her to challenge the doctors ’ decisions concerning the advisability of and access to prenatal examinations in a timely manner had amounted also to a breach of Article 13 of the Convention. Had such a framework existed, it would have made it possible for her to consider whether she wanted to have the pregnancy terminated in the conditions provided for in the 1993 Act. Article 13 of the Convention reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 216. The Government submitted that Polish law provided for a procedure governing the taking of medical decisions concerning abortion on medical grounds. They referred to the 1993 Act and to the Ordinance of the Minister of Health of 22 January 1997. They further referred to section 37 of the Medical Profession Act 199 6. They argued that it provided for the possibility of reviewing a therapeutic decision taken by a specialist. 217. The applicant submitted that the Polish legal framework governing the termination of pregnancy had proved to be inadequate. It had failed to provide her with reasonable procedural protection to safeguard her rights guaranteed by Article 8 of the Convention. 218. The Court observes that the applicant ’ s complaint about the State ’ s failure to put in place an adequate legal framework allowing for the determination of disputes arising in the context of a determination of access to diagnostic services relevant for the application of the 1993 Act, insofar as it allowed for legal abortion, essentially overlaps with the issues which have been examined under Article 8 of the Convention. The Court has found a violation of this provision on account of the State ’ s failure to meet its positive obligations. It holds that no separate issue arises under Article 13 of the Convention (see Tysiąc v. Poland, cited above, § 135). III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 219. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 220. The applicant claimed compensation for pecuniary damage in the amount of EUR 9 ,000. This sum consisted of the estimated future medical expenses she would be obliged to bear in connection with her daughter ’ s condition. She estimated her expenditure on adequate medical treatment which her daughter would have to seek in the future until her adulthood on the basis of information available on the website of the British Turner Association. 221. The applicant further requested the Court to award her just satisfaction in respect of non-pecuniary damage. She referred to the Court ’ s judgment in the case of Draon v. France [GC], no. 1513/03, 6 October 2005. She further submitted that the intentional failure to provide the necessary medical services, the humiliating treatment of the applicant by doctors and the lack of protection and effective redress from the State should be considered as an aggravating factor and influence the amount of non-pecuniary damages to be awarded in the case. She emphasised that she had suffered and still experiences pain, distress and suffering which were and remain causally connected to the events complained of before the Court. She claimed EUR 65,000 in this respect. 222. The Government were of the view that the applicant had not sustained pecuniary damage in the amount claimed, which was purely speculative and exorbitant. 223. As to the applicant ’ s claim for non ‑ pecuniary damage, the Government submitted that it was excessive and should therefore be rejected. 224. The Court observes that the applicant ’ s claim for pecuniary damage was based on the medical condition of her daughter. The Court reiterates that it has found violations of the Convention on account of the manner in which the applicant ’ s requests were handled by health professionals and because of the State ’ s failure to create an effective procedural mechanism by which access to diagnostic services relevant for establishing the conditions of availability of legal abortion under Polish law could be secured. The Court does not discern any causal link between the violations found and the claim in respect of pecuniary damage. Accordingly, no award can be made under this head. 225. On the other hand, the Court has found that the applicant experienced considerable anguish and suffering, having regard to her fears about the situation of her family and her apprehension as to how she would be able to cope with the challenge of educating another child who was likely to be affected with a lifelong medical condition and to ensure its welfare and happiness. Moreover, the applicant had been humiliated by doctors ’ lack of sensibility to her plight. The Court has found a breach of both Articles 3 and 8 of the Convention. Having regard to the circumstances of the case seen as a whole and deciding on equitable basis, the Court awards the applicant EUR 45 ,000. B. Costs and expenses 226. The applicant claimed reimbursement of the costs and expenses incurred in the domestic proceedings and in the proceedings before the Court. The applicant had instructed two Polish lawyers to represent her before the Court. 227. The applicant claimed, with reference to invoices they had submitted, EUR 11,529 (comprising EUR 9,450 in fees plus VAT of 22 per cent) in respect of legal fees for work carried out by Ms M. Gąsiorowska and Ms I. Kotiuk who represented the applicant in the domestic proceedings and before the Court. Legal fees corresponded to 189 hours spent in preparation of the applicant ’ s case before the domestic courts and the case before the Court, at an hourly rate of EUR 50. The applicant further claimed reimbursement of travel costs borne in connection with the civil case conducted before the courts in Cracow in the amount of PLN 1,400 and EUR 1,000 in respect of telephone bills for conversations with the applicant in the years 2005 ‑ 2008. 228. The applicant further argued that the case had raised complicated issues of law which necessitated expert advice in reproductive rights law. She claimed, with reference to invoices, EUR 8, 223,75 in respect of legal fees for work carried out by an expert of the Center for Reproductive Rights, based in New York. Legal fees corresponded to 85 hours spent in preparation of the applicant ’ s case, at an hourly rate of USD 150, equivalent to EUR 96, 75. She argued that it had been well ‑ established in the Court ’ s case ‑ law that costs could reasonably be incurred by more than one lawyer and that an applicant ’ s lawyers could be situated in different jurisdictions ( Kurt v. Turkey, judgment of 25 May 1998, Reports of Judgments and Decisions 1998 ‑ III ). This was justified by the novelty and complexity of the issues involved in the case which was comparable to the case of Tysiąc v. Poland, concerning access to legal abortion in Poland, but which related to different legal issues. She submitted that certain consequences followed from the involvement of foreign lawyers. In Tolstoy Miloslavsky v. the United Kingdom the Court stated that “given the great differences at present in rates of fees from one Contracting State to another, a uniform approach to the assessment of fees ... does not seem appropriate” ( Tolstoy Miloslavsky v. the United Kingdom, judgment of 13 July 1995, § 77, Series A no. 316 ‑ B). 229. The Government requested the Court to decide on the reimbursement of legal costs and expenses only in so far as these costs and expenses were actually and necessarily incurred and were reasonable as to the quantum. They referred to the Court ’ s judgment in the case of Eckle v. Germany ( Eckle v. Germany, 15 July 1982, § 25, Series A no. 51). 230. The Government further submitted, in respect of the travel costs borne by the applicant ’ s lawyers in 2005 and the amount claimed in respect of phone calls made from 2004 until 2008, that the applicant had failed to substantiate these costs by submitting relevant bills or documents. 231. They further submitted that the applicant had failed to provide the Court with information on lowest legal rates applicable in Poland. They were of the view that in cases of great importance to society, such as the present one, the lawyers should have followed good professional practices and, accordingly, either have acted pro bono or significantly reduced their fees. Generally, the Government were of the view that the amounts claimed by the applicant were exorbitant and could not be reimbursed. 232. The Government took the same position in respect of the claim concerning costs incurred by the Centre for Reproductive Rights. 233. The Court reiterates that only legal costs and expenses found to have been actually and necessarily incurred and which are reasonable as to quantum are recoverable under Article 41 of the Convention (see, among other authorities, Nikolova v. Bulgaria [GC], no. 31195/96, 25 March 1999, § 79, and Smith and Grady v. the United Kingdom (just satisfaction), nos. 33985/96 and 33986/96, § 28, ECHR 2000 ‑ IX). In the light of the documents submitted, the Court is satisfied that the legal costs concerned in the present case have actually been incurred. 234. As to the amounts concerned, the Court first points out that it has already held that the use of more than one lawyer may sometimes be justified by the importance of the issues raised in a case (see, among many other authorities, Sunday Times v. the United Kingdom (no. 1) ( former Article 50), judgment of 6 November 1980, Series A no. 38, § 30). The Court notes, in this connection, that the issues involved in the present case have given rise to a heated and ongoing legal debate in Poland. It is also relevant to note in this connection the scarcity of relevant case-law of the Polish courts and lack of any established consensus in legal circles as to the degree and scope of protection which reproductive rights should enjoy under Polish law. The Court is further of the view that the Convention issues involved in the case were also of considerable complexity. 235. On the whole, having regard both to the national and the Convention law aspects of the case, the Court is of the opinion that they justified recourse to three lawyers, including an expert in reproductive rights issues. As to the hourly rates claimed, the Court is of the view that they are consistent with domestic practice in both jurisdictions where the lawyers representing the applicant practise and cannot be considered excessive. 236. On the other hand, as to the costs claimed by the applicant, the Court notes that no documents have been submitted to show that these costs have actually been incurred. 237. The Court, deciding on an equitable basis and having regard to the details of the claims submitted, awards the applicant a global sum of EUR 1 5 ,000 in respect of fees and expenses, plus any tax on that amount that may be chargeable to the applicant. C. Default interest 238. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention because Polish law did not include any effective mechanisms which would have enabled the applicant to have access to the available diagnostic services and to take, in the light of their results, an informed decision as to whether or not to seek an abortion. Given that Polish domestic law allowed for abortion in cases of foetal malformation, there had to be an adequate legal and procedural framework to guarantee that relevant, full and reliable information on the foetus’ health be made available to pregnant women. The Court did not agree with the Polish Government that providing access to prenatal genetic tests was in effect providing access to abortion. Women sought access to such tests for many reasons. In addition, States were obliged to organise their health services to ensure that the effective exercise of the freedom of conscience of health professionals in a professional context did not prevent patients from obtaining access to services to which they were legally entitled. In this case the Court also found a violation of Article 3 (prohibition of inhuman and degrading treatment) of the Convention as the applicant, who was in a very vulnerable position, had been humiliated and “shabbily” treated, the determination of whether she should have had access to genetic tests, as recommended by doctors, being marred by procrastination, confusion and lack of proper counselling and information. |
925 | Absence of outside influence | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Constitution of Ukraine 1996 91. The relevant provisions can be found in Miroshnik v. Ukraine, no. 75804/01, § 30, 27 November 2008 ( independence of the judiciary ), and in Seryavin and Others v. Ukraine, no. 4909/04, § 22, 10 February 2011 ( protection of property). B. Code of Arbitration Procedure 1991 (renamed into the Code of Commercial Procedure by amendments of 21 June 2001 effective since 5 July 2001 ) 92. The relevant provisions, as worded before the amendments of 21 June 2001 (effective since 5 July 2001), are quoted in Ukraine -Tyumen v. Ukraine, no. 22603/02, § 20, 22 November 2007. 93. Chapter XII-2 (in force since 5 July 2001) can be found in MPP Golub v. Ukraine (dec.), no. 6778/05, ECHR 2005 ‑ XI. 94. Under Article 112, final judicial decisions may be reviewed on the basis of newly - discovered circumstances, where those circumstances were of significant importance for the case and could not have been known to the party concerned. According to Article 114, the examination of a request for the review of a case on the basis of newly- discovered circumstances should result in a court judgment (ruling or resolution) upholding the judgment (ruling or resolution) sought to be reviewed, modifying it or quashing it. The relevant decision may be challenged under standard procedure. C. Code of Arbitration Procedure (Amendments) Act of 21 June 2001 ( in force from 5 July 2001) 95. Under paragraph 4 of the Final and Transitional Provisions, a judgment not challenged by the time of the entry into force of the Act before the president of an arbitration court may be appealed against to the commercial court of appeal or cassation instance in compliance with the procedures envisaged by the Code of Commercial Procedure. THE LAW I. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1 96. The applicant company complained about the length and alleged unfairness of the debt recovery proceedings initiated by it against LyNOS (named “the Lysychansk Oil Refinery ” at the time) back in 1993 and continuing through 2004. It submitted, in particular, that the courts had breached the principle of res judicata by reconsidering the amount of the debt due to it after that amount had been established by the final judicial decision of 2 July 1998. It also contended that the courts dealing with the case could not be regarded impartial or independent given the intense pressure from high-ranking State officials. The applicant company relied on Article 6 of the Convention, which reads, insofar as relevant, as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing within a reasonable time by an independent and impartial tribunal established by law.” 97. The applicant company further complained under Article 1 of Protocol No. 1 to the Convention of a violation of its property rights. It complained, in particular, that it had been unable to recover in full the 375,000 tons of oil it had supplied to the State-owned oil refinery in the early 1990s, even though the domestic courts had confirmed its claim in that regard. Article 1 of Protocol No. 1 relied on by the applicant company reads as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” A. Admissibility 1. Compatibility ratione temporis 98. The Government argued that the application was incompatible ratione temporis insofar as it concerned events prior to the entry into force of the Convention in respect of Ukraine on 11 September 1997. 99. While agreeing with the Government ’ s view as to the Court ’ s temporal jurisdiction, the applicant company maintained that facts occurring before that date also had to be taken into consideration. 100. The Court notes that, indeed, as it has made it clear in many cases against Ukraine, it is competent to examine the facts of an application for their compatibility with the Convention only in so far as they occurred after 11 September 1997 (see, for example, Kozak v. Ukraine (dec.), no. 21291/02, ECHR 2002 ‑ X). 101. The present case concerns facts occurring both before and after that date. The Court considers that the applicant company ’ s complaints, insofar as they pertain to the period prior to 11 September 1997, are beyond the Court ’ s jurisdiction ratione temporis. It therefore upholds the Government ’ s objection and declares this part of the application inadmissible under Article 35 §§ 3 (a) and 4 of the Convention. 102. At the same time, the Court may and will have regard to events prior to ratification inasmuch as they could be considered to have created a situation extending beyond that date or may be relevant for the understanding of facts occurring after that date (see Broniowski v. Poland (dec.) [GC], no. 31443/96, §§ 74-77, ECHR 2002-X). 2. Applicability of Article 6 § 1 of the Convention 103. The Government further submitted that the applicant company ’ s complaint about the allegedly unjustified review of the HAC ’ s ruling of 2 July 1998 (establishing the amount of the debt owed to it by LyNOS) should be declared inadmissible within the meaning of Article 35 § 3 of the Convention because Article 6 § 1 did not apply to that review as such. They contended that the ruling in question could not be regarded as a final judicial decision determining the applicant company ’ s civil rights or obligations. The Government noted in this connection that, at the relevant time, the insolvency proceedings brought by the applicant company against LyNOS had still been underway, and that the applicant company ’ s civil rights and obligations had therefore yet to be determined. 104. The applicant company contested that argument. 105. The Court notes that the complaint raises questions of fact and law which are sufficiently complex not to be susceptible of being resolved at the admissibility stage. It considers that the determination of this complaint, including the question, raised by the Government, of the applicability of Article 6 § 1 of the Convention, depends on an examination of the merits (see and compare with Esa Jussila v. Finland (dec.), no. 73053/01, 9 November 2004, and Ferrazzini v. Italy [GC], no. 44759/98, § 18, ECHR 2001 ‑ VII). 106. Accordingly, the Court joins this objection of the Government to the merits of the complaint. 3. Compliance with the six-month time-limit 107. The Government also submitted that the application had been introduced out of the six-month time-limit. According to them, the six- month period for the purposes of Article 35 § 1 of the Convention had started running on 26 December 2000 – the date when the HAC ’ s Review Panel had quashed the HAC ’ s earlier rejection of LyNOS ’ s application for review of the ruling of 2 July 1998 establishing the amount of its debt to the applicant company on the basis of newly - discovered circumstances and had remitted that request for fresh examination. 108. The applicant company disagreed. It noted that the above-mentioned application lodged by LyNOS had been allowed by the HAC ’ s judgment of 27 June 2001, which the applicant company had challenged before the higher courts in compliance with commercial procedure legislation. It maintained that the final domestic decision had therefore been the ruling of the Supreme Court of 26 December 2002. Accordingly, the applicant company considered that its application, which had been lodged on 23 June 2003, had been brought in compliance with the six-month time-limit. 109. The Court notes at the outset that, although the Government raised this objection in respect of the general admissibility of the application, it is in fact confined to challenging the applicant company ’ s compliance with the six-month time-limit only insofar as it concerns the review of the HAC ’ s ruling of 2 July 1998 on the basis of newly-discovered circumstances. 110. In its case-law, the Court has viewed the quashing of a final judgment as an instantaneous act, which does not create a continuing situation, even if it entails the reopening of proceedings (see, for well ‑ established authority, Voloshchuk v. Ukraine (dec.), no. 51394/99, 14 October 2003, and Sardin v. Russia (dec.), no. 69582/01, ECHR 2004 ‑ II). In the absence of an effective remedy, the Court has considered the very act of quashing of a final judgment to trigger the start of the six ‑ month time-limit for lodging a related complaint with the Court (ibid. ). 111. Turning to the present case, the Court discerns particular circumstances which make it distinguishable from the cases cited above, as well as from the numerous other comparable cases (see, for example, The Mrevli Foundation v. Georgia (dec.), no. 25491/04, 5 May 2009; Nosov v. Russia (dec.), no. 30877/02, 20 October 2005; and Sitokhova v. Russia (dec.), no. 55609/00, 2 September 2004). 112. Certain particularities of the relevant legislation governing Ukrainian commercial arbitration procedure in force at the material time are noteworthy. Thus, unlike in civil procedure – where the courts are required to deliver a separate decision granting or rejecting a request for the reopening of a case on the basis of newly- discovered circumstances, such a decision not being amenable to appeal (for the relevant legal provisions and an analysis of them see the Voloshchuk decision, cited above) – the arbitration procedure in Ukraine does not envisage such a separate procedural decision. Following the examination of a request for reopening of a case on the basis of newly- discovered circumstances, a court has the following options: to uphold the judgment ( decision ) which the claimant has sought to have reviewed; to quash it; or to amend it. The court ’ s decision in the matter may then be challenged in accordance with standard procedures (see paragraph 94 above). 113. The Court notes that, in the present case, LyNOS ’ s application for review of the HAC ’ s ruling of 2 July 1998 on the basis of newly - discovered circumstances was initially unsuccessful. Thus, on 19 September 2000 the HAC found that there had in fact been no newly-discovered circumstances. It did not, however, reject the application for review, but rather upheld the challenged ruling of 2 July 1998 (see paragraph 69 above). Strictly speaking, the HAC had already examined the merits of the case by doing so. Later on, that decision was quashed and the application for review was remitted for fresh examination (see paragraph 72 above). As a result, on 27 June 2001 the HAC, acting as a court of first instance, changed its ruling of 2 July 1998 by a decision which the applicant company was able to and did challenge before the higher courts (see paragraphs 76-78, 80, 82-83 and 85 above). 114. Bearing in mind the above, the Court considers that the date upon which the final ruling of 2 July 1998 was quashed, triggering the running of the six-month time-limit, would not have been apparent for the applicant company under the circumstances: technically, the period could have commenced as early as on 19 September 2000 (when the initial ruling was upheld); or on 26 December 2000 – as submitted by the Government – when the decision of 19 September 2000 was quashed; on 27 June 2001 – when the HAC modified the ruling of 2 July 1998 in the light of the newly- discovered circumstances referred to by LyNOS; or, finally, on 26 December 2002 – when the Supreme Court upheld the aforementioned judgment of 27 June 2001 by a final ruling. 115. The Court will examine all these possibilities. 116. As to the failure to complain to the Court about the review of the ruling of 2 July 1998 resulting in its being upheld by the decision of 19 September 2000, the applicant company can hardly be reproached for this, given that the outcome was in its favour. 117. Furthermore, contrary to the Government ’ s assertions, the outcome of the application for review was yet to be determined following the decision of 26 December 2000 remitting the application for fresh examination. Accordingly, the ruling of 2 July 1998 cannot be regarded as having been quashed on that date. 118. The Court also observes that on 27 June 2001 the HAC, sitting as a court of first instance, modified the ruling of 2 July 1998, to the detriment of the applicant company, in allowing LyNOS ’ s application for review. It is noteworthy that: it was the only judicial decision regarding the application for review that the applicant company found itself confronted with; the decision was on the merits of the case; and it was amenable to an ordinary appeal, which the applicant company resorted to. The applicant company could therefore have hardly been expected to calculate the six-month time-limit for bringing its case to the Court from 27 June 2001. 119. Lastly, the Court notes that, following the legislative amendments which entered in force on 5 July 2001, the applicant company ’ s appeal was examined by the Donetsk Commercial Court of Appeal (see paragraphs 82 and 95 above). Subsequently, the applicant company appealed in cassation to the HCC (formerly the HAC) and later sought leave from the Supreme Court to bring a further cassation appeal (see paragraphs 83 and 85 above). According to the Court ’ s case-law, a second appeal in cassation to the Supreme Court was, after 5 July 2001, an effective domestic remedy in commercial proceedings in Ukraine (see the MPP Golub decision, cited above). 120. The Court therefore concludes that, in the specific circumstances of the present case, the applicant company cannot be reproached for calculating the six-month time-limit for complaining to the Court of the allegedly unlawful quashing of the HAC ’ s final ruling of 2 July 1998 from the date of the Supreme Court ’ s decision on the case of 26 December 2002. 121. Given that the application was lodged with the Court within six months thereafter, on 23 June 2003, the Court also dismisses this objection of the Government. 4. Otherwise as to the admissibility 122. The Court further notes that this part of the application, insofar as it falls within the Court ’ s temporal jurisdiction (see paragraphs 101 and 102 above), is neither manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds. It should therefore be declared admissible. B. Merits 1. Alleged violations of Article 6 § 1 of the Convention (a) Independence and impartiality of the courts 123. The applicant company maintained that the courts dealing with the insolvency proceedings against LyNOS had not been independent or impartial, given the strong political pressure and the enduring control over the proceedings exerted by various State authorities, which had had a strong interest in their outcome. It referred, in particular, to the correspondence between the high- ranking officials and the courts dealing with the case ( or their senior officials ), on the one hand, and between LyNOS and those authorities, on the other hand. 124. The Government disagreed, referring to the guarantees of the independence and impartiality of the judiciary enshrined in the Ukrainian Constitution and other laws. While the Government admitted that there had been attempts to influence the proceedings, they insisted that there was no proof that those attempts had in fact had any impact. In support of that submission, the Government referred to the fact that, although the State authorities had sought the termination of the insolvency proceedings since 1998, those proceedings had continued until 2004. 125. The Court reiterates that in order to determine whether a tribunal can be considered “independent” for the purposes of Article 6 § 1 of the Convention, regard must be had, inter alia, to the following criteria: the manner of appointment of its members and their term of office; the existence of safeguards against outside pressures; and whether the tribunal presents an appearance of independence (see, among many other references, Findlay v. the United Kingdom, 25 February 1997, § 73, Reports 1997 ‑ I ). 126. As regards the question of “impartiality” for the purposes of Article 6 § 1, it is well established in the Court ’ s case-law that there are two aspects to this requirement, a subjective and an objective one. First, the tribunal must be subjectively impartial, that is, no member of the tribunal should hold any personal prejudice or bias. Personal impartiality is presumed, unless there is evidence to the contrary. Secondly, the tribunal must also be impartial from an objective viewpoint – that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect (see Kiiskinen v. Finland (dec.), no. 26323/95, ECHR 1999 ‑ V (extracts)). More specifically, it must be determined, under the objective test, whether, quite apart from the judges ’ personal conduct, there are ascertainable facts which may raise doubts as to their impartiality (see Kleyn and Others v. the Netherlands [GC], nos. 39343/98 et seq., § 191, ECHR 2003 ‑ VI). 127. In deciding whether in a given case there is a legitimate reason to fear that these requirements are not met, the standpoint of a party is important but not decisive. What is decisive is whether this fear can be held to be objectively justified (see Kleyn and Others, cited above, § 194). 128. The Court observes that the concepts of independence and objective impartiality are closely linked (see Findlay, cited above, § 73). They are particularly difficult to dissociate, where – like in the present case – the arguments advanced by the applicant to contest both the independence and impartiality of the court are based on the same factual considerations (see also Kleyn and Others, cited above, § 194, and Salov v. Ukraine, no. 65518/01, § 82, ECHR 2005 ‑ VIII (extracts)). The Court will therefore examine both these issues together. 129. The Court notes that – as confirmed by documentary evidence – various State authorities did indeed intervene in the judicial proceedings in question on a number of occasions. Moreover, those interventions took place in an open and persistent manner and were often expressly solicited by the applicant company ’ s adversary. 130. Thus, the case file contains copies of LyNOS ’ s requests to the First Deputy Speaker and the Speaker of Parliament, as well as the Prime Minister and the President of Ukraine, for intervention in the court proceedings, as well as letters from those officials to the HAC ’ s President with instructions to quash or reconsider the court ’ s earlier decisions, to terminate the proceedings, or simply enclosing the relevant request made by LyNOS (see paragraphs 28-29, 34-35, 42, 51, 58, 60 and 74 above). The Court also notes that the HAC ’ s President responded to some of those letters with reports on the status of the proceedings and with explanations of the measures taken within those proceedings (see paragraphs 43, 56 and 63 above). Furthermore, the Court does not lose sight of the fact that LyNOS explicitly thanked the President of Ukraine for his interventions, which it considered to be successful – noting that “the positive results [were] self ‑ explanatory” (see paragraph 73 above). 131. Although the notion of the separation of powers between the executive and the judiciary has assumed growing importance in the Court ’ s case-law (see Stafford v. the United Kingdom [GC], no. 46295/99, § 78, ECHR 2002-IV, and Henryk Urban and Ryszard Urban v. Poland, no. 23614/08, § 46, 30 November 2010 ), neither Article 6 nor any other provision of the Convention requires States to comply with any theoretical constitutional concepts regarding the permissible limits of the interaction between the two branches. The Court must clarify whether in each particular case the requirements of the Convention are met (see Pabla Ky v. Finland, no. 47221/99, § 29, ECHR 2004 ‑ V). 132. It is not the Court ’ s task to analyse the soundness of the relevant constitutional arrangements in Ukraine. The sole question it is faced with is whether, in the circumstances of this case, the domestic courts had the requisite “appearance” of independence, or the requisite “objective” impartiality (see McGonnell v. the United Kingdom, no. 28488/95, § 51, ECHR 2000 ‑ II, and Kleyn and Others, cited above, § 193). 133. The Court has already condemned, in the strongest terms, attempts by non-judicial authorities to intervene in court proceedings, considering them to be ipso facto incompatible with the notion of an “independent and impartial tribunal” within the meaning of Article 6 § 1 of the Convention (see Sovtransavto Holding v. Ukraine, no. 48553/99, § 80, ECHR 2002-VII, and Agrotehservis v. Ukraine (dec.), no. 62608/00, 19 October 2004 ). 134. Similarly to its approach outlined in the Sovtransavto Holding case, cited above (§ 80), the Court finds it to be of no relevance whether the impugned interventions actually affected the course of the proceedings. Coming from the executive and legislative branches of the State, they reveal a lack of respect for the judicial office itself and justify the applicant company ’ s fears as to the independence and impartiality of the tribunals. 135. The Court is mindful of the fact that the proceedings in question concerned the insolvency of what was at the time the country ’ s biggest oil refinery and in which the State was the major shareholder (see paragraphs 6 and 45 above). It is therefore natural that they attracted the close attention of the State authorities at the highest level. Those authorities, however, did not confine themselves to passive monitoring of the developments in the court case in the context of their extrajudicial efforts to overcome LyNOS ’ s crisis, but blatantly interfered in the court proceedings, which is unacceptable. 136. The Court emphasises in this connection that the scope of the State ’ s obligation to ensure a trial by an “independent and impartial tribunal ” under Article 6 § 1 of the Convention is not limited to the judiciary. It also implies obligations on the executive, the legislature and any other State authority, regardless of its level, to respect and abide by the judgments and decisions of the courts, even when they do not agree with them. Thus, the State ’ s respecting the authority of the courts is an indispensable precondition for public confidence in the courts and, more broadly, for the rule of law. For this to be the case, the constitutional safeguards of the independence and impartiality of the judiciary do not suffice. They must be effectively incorporated into everyday administrative attitudes and practices. 137. The Court further observes that judicial independence and impartiality, as viewed from an objective perspective, demand that individual judges be free from undue influence – not only from outside the judiciary, but also from within. This internal judicial independence requires that judges be free from directives or pressures from fellow judges or those who have administrative responsibilities in a court such as, for example, the president of the court. The absence of sufficient safeguards ensuring the independence of judges within the judiciary and, in particular, vis-à-vis their judicial superiors, may lead the Court to conclude that an applicant ’ s doubts as to the independence and impartiality of a court may be said to have been objectively justified (see Parlov-Tkalčić v. Croatia, no. 24810/06, § 86, 22 December 2009, with further references). 138. Turning back to the present case, the Court notes that in September 2000 the HAC ’ s President gave direct instructions to his two deputies to reconsider the court ’ s ruling of 19 September 2000 (by which it had rejected LyNOS ’ s application for the revision of the amount of its debt to the applicant company). 139. The Court considers such influence by a judicial superior on the course of the proceedings to be contrary to the principle of internal judicial independence as outlined above. 140. In sum, the Court concludes that, in the circumstances, the domestic courts could not be regarded independent or objectively impartial. 141. There has accordingly been a violation of Article 6 § 1 of the Convention in that regard. (b) Compliance with the principle of legal certainty 142. The applicant company contended that by overturning the final ruling of 2 July 1998 establishing the amount of arrears due to it by LyNOS, the courts had acted in breach of the principle of legal certainty inherent in the notion of fair trial under Article 6 § 1 of the Convention. 143. Referring to their objection as to applicability of Article 6 § 1 to the situation complained of, the Government did not submit any further observations on the merits of this complaint. 144. The Court reiterates that legal certainty, which is one of the fundamental aspects of the rule of law, requires that where courts have finally determined an issue, their ruling should not be called into question (see Brumărescu v. Romania [GC], no. 28342/95, § 61, ECHR 1999-VII). 145. As regards the present case, the Court notes that, in the absence of any appeal to the Review Panel – which could have been submitted by either party within two months of the pronouncement of the HAC ’ s ruling (see the reference in paragraph 92 above) and which was considered, before 5 April 2001, to be an appeal to the court of final instance for the purposes of exhaustion of ordinary domestic remedies in arbitration proceedings (see Sovtransavto Holding v. Ukraine (dec.), no. 48553/99, 27 September 2001, and MPP Petrol v. Ukraine (dec.), no. 62605/00, 25 March 2008) – the HAC ’ s ruling of 2 July 1998 was a final judicial determination of the amount of the outstanding arrears owed by LyNOS to the applicant company. The fact that the modalities of its repayment were yet to be defined, at that stage, within the ongoing insolvency proceedings, has no bearing on this finding. 146. Proceeding from the standpoint that a court whose lack of independence and impartiality has been established cannot in principle guarantee a fair trial, the Court has occasionally chosen not to examine complaints regarding the fairness of the relevant proceedings (see Çiraklar v. Turkey, 28 October 1998, §§ 44-45, Reports 1998 ‑ VII). Having regard to the circumstances of each particular case before it, the Court has, however, at times found it necessary to undertake a separate examination of the fairness issue under Article 6 of the Convention, along with that regarding the courts ’ independence and impartiality (see, for example, Salov, cited above, §§ 78-98, and Bochan v. Ukraine, no. 7577/02, §§ 60-85, 3 May 2007). 147. The Court considers that in the present case the applicant company ’ s complaint of the alleged breach of the principle of legal certainty raises a serious issue warranting a separate examination under Article 6 § 1 of the Convention. 148. The principle of legal certainty implies that no party is entitled to seek review of a final and binding judgment merely for the purpose of obtaining a rehearing and a fresh determination of the case. Review by higher courts should not be treated as an appeal in disguise, and the mere possibility of there being two views on the subject is not grounds for re-examination. A departure from that principle is justified only when made necessary by circumstances of a substantial and compelling character (see Ryabykh v. Russia, no. 52854/99, § 52, ECHR 2003 ‑ IX). 149. Turning to the present case, the Court notes that, while the HAC ’ s ruling of 2 July 1998 determining the amount of the outstanding arrears of LyNOS vis-à-vis the applicant company was not challenged and became final, later in July 1998 the Government created a taskforce of representatives of various high-level State authorities for clarifying the reasons for the company ’ s indebtedness. In its report of 31 August 1998 that taskforce stated a need for verification of the amount of arrears. Subsequently, on 14 September 1998, the First Deputy Prime Minister instructed certain ministries and State agencies to undertake an audit with a view to verifying the amount of the debt. As a result, in its report of 15 April 2000, the Lugansk Regional Audit Department concluded that the HAC ’ s findings in its ruling of 2 July 1998 concerning the outstanding debt owed to the applicant company had been wrong and in contradiction of the applicable legislation, and that LyNOS ’ s debt was in fact equal to UAH 36,401,894, instead of UAH 216,150,544 as had been established on 2 July 1998. LyNOS relied on that conclusion as a newly-discovered circumstance warranting revision by the courts of the previously established amount of debt, and its application for review was granted. As result, the courts reconsidered and reduced the finally established debt of UAH 216,150,544 to UAH 97,406,920 and subsequently to UAH 90,983,077 (see, in particular, paragraphs 41 and 77 above). 150. These facts indicate that the non-judicial State authorities called into question the judicial decision of 2 July 1998 even though it had become final, revised it as they saw fit and criticised its findings as wrong and unlawful. Moreover, the non-judicial revision of the debt amount was then referred to as a newly-discovered circumstance, on the basis of which the courts reconsidered, to the applicant company ’ s disadvantage, the amount of the arrears owed to it by LyNOS. 151. The Court therefore concludes that the reopening of the finally settled legal issue of the amount of arrears in the present case was based merely on the State authorities ’ disagreement with it, this being disguised as a newly-discovered circumstance. It considers that this amounted to a flagrant breach of the principle of legal certainty enshrined in Article 6 § 1 of the Convention. 152. Accordingly, the Court rejects the Government ’ s objection as to applicability of Article 6 § 1 of the Convention to this complaint, which was previously joined to the merits (see paragraph 106 above), and finds that that there has been a violation of this provision. (c) Length of proceedings 153. The applicant company maintained that the proceedings initiated by it against LyNOS had lasted for an unreasonably long time. 154. The Government did not consider the overall length of the proceedings to be unreasonable, given the complexity of the case and the applicant company ’ s own allegedly uncooperative conduct. 155. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case; the conduct of the applicant and the relevant authorities; and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). 156. The period to be taken into consideration in the present case is from 11 September 1997 (the date of the entry into force of the Convention in respect of Ukraine – see paragraphs 100-102 above) to 25 November 2004 (the ruling of the Supreme Court finalising the bankruptcy proceedings against LyNOS by upholding its friendly settlement with the creditors ’ committee ). The proceedings therefore lasted for over seven years. 157. The Court notes that the case was of importance for the applicant company, with a significant pecuniary interest being at stake. It was, however, factually and legally complex. At the same time the Court observes that, on the one hand, the major delay (from July 1999 to 16 April 2002) can be explained mainly by the authorities ’ efforts to have the amount of the debt owed to the applicant company revised, despite a final judicial decision in that regard. On the other hand, no delays in the proceedings were attributable to the applicant company. 158. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues of the length of proceedings (see Frydlender, cited above). 159. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. 160. There has accordingly been a breach of Article 6 § 1 of the Convention in this regard too. 2. Alleged violations of Article 1 of Protocol No. 1 161. The applicant company contended that, due to the fault of the State, it had been unable to recover in full the 375,000 tons of oil it had supplied to the State-owned oil refinery in the early 1990s, even though the domestic courts had confirmed its claim in that regard by their final decisions of 5 March 1993, 18 November 1994 and 2 July 1998. 162. The applicant company referred, in particular, to the revision of the amount of arrears after it had already been established by the HAC ’ s final ruling of 2 July 1998, and its subsequent considerable reduction (from UAH 216, 150,544 to UAH 90,700,000). 163. It next submitted that the ban on selling shares in LyNOS had been lifted by mere decisions of the HAC ’ s President on 10 September 1998 and 12 April 2000, and that the State ’ s shares had eventually been sold to a foreign investor without any safeguards that LyNOS ’ s outstanding debt to the applicant company would ever be repaid. 164. Furthermore, the applicant company contended that it had been forced, in 2003, into what it considered to be a discriminatory friendly settlement resulting in the transfer to it of shares owned by LyNOS which were neither transferable nor free from encumbrances nor eligible for dividends, instead of the money or oil products which it would have received had its rights not been violated. 165. The Government maintained that there had been no interference with the applicant company ’ s rights under Article 1 of Protocol No. 1, as, until the completion of the insolvency proceedings against LyNOS, it could not have been regarded as having any possessions or enforceable property claims. 166. The Court reiterates that the existence of a debt confirmed by a binding and enforceable judgment furnishes the judgment beneficiary with a “legitimate expectation” that the debt will be paid and constitutes the beneficiary ’ s “possessions” within the meaning of Article 1 of Protocol No. 1. Quashing such a judgment therefore amounts to an interference with the right to peaceful enjoyment of possessions (see, among other references, Brumărescu, cited above, § 74, and Ponomaryov v. Ukraine, no. 3236/03, § 43, 3 April 2008). 167. The Court observes that the debt of LyNOS, a State-owned company at the time, to the applicant company was confirmed by the final judicial ruling of 2 July 1998 in the amount of UAH 216,150,544. Accordingly, that sum of money constituted the applicant company ’ s possessions, and its subsequent reduction, as a result of the reopening of the case on the basis of newly-discovered circumstances, amounted to an interference with its right to peaceful enjoyment of those possessions. 168. As the Court has found in the context of Article 6 § 1 of the Convention, the quashing of the HAC ’ s enforceable ruling of 2 July 1998 was contrary to the principle of legal certainty (see paragraphs 1 48 -1 49 above). It frustrated the applicant company ’ s reliance on a binding judicial decision and deprived it of an opportunity to receive the money it had legitimately expected to receive. 169. The Court therefore concludes that, in these circumstances, the revision of the amount of debt due to the applicant company under the HAC ’ s final and binding ruling of 2 July 1998 placed an excessive burden on the applicant company and was therefore incompatible with Article 1 of Protocol No. 1. 170. In a broader context, the Court notes that the insolvency proceedings initiated by the applicant company against LyNOS had a direct impact on the property interests of the former. Given the Court ’ s findings that the courts dealing with those proceedings lacked the requisite independence and objective impartiality owing to the wholly unwarranted interventions by the State ’ s legislative and executive authorities (see paragraphs 1 36-137 above), the Court considers that no “fair balance” was struck between the demands of the public interest and the need to protect the applicant company ’ s right to the peaceful enjoyment of its possessions (see and compare with the judgment in the Sovtransavto Holding case, cited above, §§ 97-98). 171. The above considerations suffice for the Court to find a violation of Article 1 of Protocol No. 1, without the need to examine the applicant company ’ s further arguments in support of its complaint under this heading. 172. Accordingly, there has been a violation of Article 1 of Protocol No. 1. II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 173. The applicant company also complained under Article 6 § 1 of the Convention of irregularities in the case file concerning the insolvency proceedings and of the destruction of files regarding the 1993-1994 proceedings. It further complained, relying on Articles 6 § 1 and 13 of the Convention and Article 2 of Protocol No. 7 to the Convention, that it had been deprived of access to court by the fact that on 26 December 2002 the Supreme Court, sitting as a five-judge bench, had rejected its request for leave to appeal in cassation. It referred in that regard to the requirement of the applicable procedural legislation to have the consent of at least five judges for proceedings to be started and the Supreme Court ’ s failure to specify the total number of judges on the bench. 174. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant Article 35 §§ 3 (a) and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 175. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 176. The applicant company submitted two alternative claims in respect of pecuniary damage – 179,119,430.67 euros (EUR) or EUR 143,873,981.28 – with its calculations being based, respectively, on United States and Ukrainian interest and inflation rates. It also claimed EUR 250,000 in respect of non-pecuniary damage and EUR 253,878.95 in legal costs and expenses. 177. The Government contested those claims. 178. The Court considers that, in the circumstances of the case, the issue of the application of Article 41 of the Convention is not ready for decision. Consequently, it decides to reserve it and to fix the subsequent procedure in the light of the possibility of an agreement between the respondent State and the applicant company (Rule 75 § § 1 and 4 of the Rules of Court). | The Court held that there had been a violation of Article 6 § 1 of the Convention as regards the lack of independence and impartiality of the domestic courts. It noted in particular that, as confirmed by documentary evidence, various Ukrainian authorities had intervened in the judicial proceedings on a number of occasions. The Court also recalled that it had already condemned in the strongest terms attempts by non-judicial authorities to intervene in court proceedings, considering them to be incompatible with the notion of an “independent and impartial tribunal”. Admittedly, given the fact that the proceedings in the present case had concerned the insolvency of what was, at the time, the country’s biggest oil refinery and in which the State was the major shareholder, it was natural that the proceedings had attracted the State authorities’ close attention. It was, however, unacceptable that the authorities had not confined themselves to passive monitoring of the court proceedings but that they had blatantly interfered. The Court emphasised that the scope of the State’s obligation to ensure a trial by an independent and impartial tribunal was not limited to the judiciary, but also implied obligations on any other State authority to respect and abide by the judgments and decisions of the courts. Judicial independence further demanded that individual judges be free from undue influence, including from within the judiciary. The fact that, in the present case, the president of the Higher Arbitration Court had given direct instructions to his deputies to reconsider the court’s ruling by which it had rejected the application of the biggest oil refinery in Ukraine for the revision of the amount of its debt had therefore been contrary to the principle of internal judicial independence. |
139 | Sexual abuse | II. RELEVANT DOMESTIC LAW AND PRACTICE 38. Excerpts of the relevant legal provisions, as well as the relevant practice of the domestic courts, are detailed in M.G.C. v. Romania (no. 61495/11, §§ 30-37, 15 March 2016, not final ). 39. In addition, the Government submitted Decision no. 1037 of 5 April 2012 taken by the High Court of Cassation and Justice in the case of the sexual abuse of a fourteen- year - old girl by three men in conditions similar to the ones in the current case. The High Court upheld the defendants ’ conviction for rape, reasoning as follows: “In order to establish the facts, the court took into account the following evidence: the statements given by the victim, the defendant B.A., the witnesses ...; the statements given by P.D., R.C., and A.F. as defendants; the report on the examination carried out on the victim and on the material evidence as revealed in judicial photographs; the examination of the crime scene in the presence of the defendants accompanied by photographs and an orientation plan; the forensic medical certificate ...; the investigation conducted by the social services and the school report; the psychiatric forensic examination; the report about the examination of the crime scene in the presence of the witness P.D. with photographs; the polygraph test report ... Based on the evidence produced before the first - instance court, it has been correctly held that there had been no direct coercion of the victim. However, this situation is irrelevant for the verdict on the existence of the crime of rape. The defendant took advantage of the victim ’ s inability to defend herself, since any possibility of riposte was annihilated by the actions of the other aggressors [who had sexual intercourse with the victim before the defendant] ... The victim ’ s young age and psychological vulnerability [limited intellectual capacity] ... in the context of the events, namely during the night, in a secluded area, in a low temperature, the victim being scantily dressed, were all elements capable of placing her in a situation in which any opposition would have failed.” III. RELEVANT INTERNATIONAL MATERIAL 40. A detailed description of the relevant international material concerning sexual violence against children and women can be found in M. G. C. v. Romania (cited above, §§ 3 8- 46 ). 41. As regards people with disabilities, on 2 February 2005 the Committee of Ministers of the Council of Europe adopted the Resolution ResAP(2005)1 on safeguarding adults and children with disabilities against abuse. The Resolution recognizes that abuse against people with disabilities may also take the form of sexual abuse and exploitation, including rape, sexual aggression, indecent assault or indecent exposure. In this respect it reads as follows: “These abuses require a proportional response – one which does not cut across legitimate choices made by individuals with disabilities but one which recognises vulnerability and exploitation. The term ‘ abuse ’ therefore refers to matters across a wide spectrum, which includes criminal acts, breaches of professional ethics, practices falling outside agreed guidelines or seriously inadequate care. As a consequence, measures to prevent and respond to abuse involve a broad range of authorities and actors, including the police, the criminal justice system, the government bodies regulating service provision and professions, advocacy organisations, user networks and patient councils, as well as service providers and planners. ... They should encourage cooperation between authorities and organisations in finding measures to prevent abuse, to improve detection and reporting of abuse, and to support the victims.” 42. The relevant parts of Recommendation Rec(2006)5 of the Committee of Ministers to member States on the Council of Europe Action Plan to promote the rights and full participation of people with disabilities in society read as follows: “Persons with disabilities constitute a varied population group, but all have in common ... the need for additional safeguards in order to enjoy their rights to the full ... There are indicators that the rate of abuse and violence committed against persons with disabilities is considerably higher than the rate for the general population, and higher in women with disabilities ... While governments cannot guarantee that abuse will not happen they must do their utmost to establish protection and the strongest possible safeguards. .. Persons with disabilities who experience abuse or violence should have access to appropriate supports. They must have a system in which they can have sufficient confidence to report abuse and expect follow-up action, including individual support. Such systems require personnel who are skilled and qualified to detect and respond to situations of abuse.” 43. The United Nations Special Rapporteur on Disability stated the following in her 2006 report on the question of monitoring the situation of people with disabilities : “2. People with developmental disabilities are particularly vulnerable to human rights violations. Also, people with disabilities are rarely taken into account, they have no political voice and are often a sub group of already marginalized social groups, and therefore, have no power to influence governments. They encounter significant problems in accessing the judicial system to protect their rights or to seek remedies for violations; and their access to organizations that may protect their rights is generally limited. While non-disabled people need independent national and international bodies to protect their human rights, additional justifications exist for ensuring that people with disabilities and their rights be given special attention through independent national and international monitoring mechanisms.” 44. In the context of the Convention on the Rights of Persons with Disabilities the United Nations had published the following relevant findings: “Persons with disabilities are more likely to be victims of violence or rape, according to a 2004 British study, and less likely to obtain police intervention, legal protection or preventive care. Research indicates that violence against children with disabilities occurs at annual rates at least 1.7 times greater than for their non-disabled peers.” THE LAW I. ALLEGED VIOLATION OF ARTICLES 3 AND 8 OF THE CONVENTION 45. The applicant complained that the Romanian authorities had not investigated her allegations of rape effectively and had breached their positive obligation to protect her from inhuman and degrading treatment. The relevant Convention provisions read as follows: Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Article 8 “1. Everyone has the right to respect for his private ... life ... ” A. Admissibility 46. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions 47. The applicant submitted that the authorities had not investigated her allegations of rape effectively. As there had been no physical evidence of assault, the criminal justice system had been more inclined to believe the perpetrators, showing no concern for the need to protect her as a minor. Discrepancies in the evidence had been disregarded and undue emphasis placed on the absence on her body of any signs of physical violence and on her lack of resistance to the perpetrators. The authorities failed to take into consideration her young age and her physical and psychological condition or the fact that six adult men had participated in her abuse. This approach intensified her feelings of humiliation, anguish and frustration without rendering an effective conviction. 48. The severe consequences of this situation on the applicant ’ s state of mind had been documented by the medical reports submitted during the domestic proceedings, as well as before the Court. 49. The Government contended that the investigation had been thorough and effective. All possible steps had been taken to gather the necessary evidence and to establish the facts, and in the absence of “direct” proof of rape, the national authorities had taken into consideration all the circumstances of the case. The authorities had not found it established that rape had been committed. The applicant had given conflicting testimony while the perpetrators had presented a constant position throughout the investigation. She had agreed to accompany the boys to the deserted house and had not asked for help. In addition, the difference in age between the applicant and the perpetrators was not significant. 50. The Government further argued that from the examples of domestic practice as already submitted in the case of M.G.C. v. Romania (cited above), it was obvious that the domestic courts were not requiring proof of physical violence in order to establish the existence of rape and that the victim ’ s resistance was not considered an important element in the analysis of such cases. When a victim was not young enough for the act to be automatically classified as rape, but was under the age of fifteen and gave her/his consent to the sexual act, the law provided that the victim ’ s will was not valid because of her young age and classified the act as the crime of sexual intercourse with a minor. The domestic courts have made a distinction between the two crimes, holding that the victim ’ s failure to defend herself/himself or to express her/his will must be established on a case-by-case basis. A fourteen-year-old girl might find herself unable to express her consent, whereas a much younger victim might have the capacity to defend herself and express her will. 2. The Court ’ s assessment (a) General principles 51. The Court reiterates that the obligation of the High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to ill-treatment, including ill-treatment administered by private individuals (see I.G. v. Moldova, no. 53519/07, § 40, 15 May 2012). These measures should provide effective protection, in particular, of children and other vulnerable persons and include reasonable steps to prevent ill-treatment of which the authorities had or ought to have had knowledge (see M.C. v. Bulgaria, cited above, § 150 ). In the case of people in a vulnerable position, including people with disabilities, the Court held that the authorities must show particular vigilance and afford increased protection in view of the fact that such individuals ’ capacity or willingness to pursue a complaint will often be impaired (see B. v. Romania, no. 42390/07, § 50, 10 January 2012). 52. On that basis, the Court considers that States have a positive obligation inherent in Article 3 of the Convention to enact criminal-law provisions that effectively punish rape and to apply them in practice through effective investigation and prosecution (see M.C. v. Bulgaria, no. 39272/98, § 153, 4 December 2003 ). In addition, in accordance with contemporary standards and trends in this area, member States ’ positive obligations under Articles 3 of the Convention must be seen as requiring the penalisation and effective prosecution of any non-consensual sexual act, including in the absence of physical resistance by the victim (ibid., § 166). (b) Application of the above-mentioned principles to the present case 53. The Court notes that the authorities in the current case were confronted with two conflicting versions of the events. The applicant alleged that she had been raped on the evening of 13 January 2007. However, the six men involved in the incident claimed that she had consented to having sexual intercourse that evening. Therefore, the authorities ’ central task in this case was to determine whether the sexual intercourse had been consensual. 54. In similar cases the Court has already held that the presence of two irreconcilable versions of the facts obviously called for a context-sensitive assessment of the credibility of the statements made and for verification of all the surrounding circumstances (see M.C. v. Bulgaria, cited above, § 177). That could be done by questioning people known to the applicant and the perpetrators, such as friends, neighbours, teachers and others who could shed light on the trustworthiness of their statements or by seeking an opinion from a specialist psychologist (see I.G. v. Moldova, cited above, § 43). In this context, the authorities could also verify whether any reasons existed for the victim to make false accusations against the alleged perpetrators. However, the Court observes that none of the above was done at any stage of the investigation and trial in the current case. 55. The Court further observes that international materials on the situation of people with disabilities point out that the rate of abuse and violence committed against people with disabilities is considerably higher than the rate for the general population (see paragraphs 42-44 above). According to medical documents dated 15 February 2007 the applicant had been diagnosed with slight intellectual disability. In this context, the nature of the sexual abuse against her was such that the existence of useful detection and reporting mechanisms were fundamental to the effective implementation of the relevant criminal laws and to the applicant ’ s access to appropriate remedies (see, mutatis mutandis, Juppala v. Finland, no. 18620/03, § 42, 2 December 2008). Indeed the Court is of the view that failure to properly investigate or provide appropriate judicial response to complaints of sexual abuse against children or other vulnerable persons such as persons with intellectual disabilities creates a background of impunity which may be in breach of the State ’ s positive obligations under Article 3 of the Convention. 56. In such circumstances, the Court considers that the applicant ’ s intellectual disability, confirmed by medical documents, placed her in a heightened state of vulnerability and required both the investigative authorities and the domestic courts to show increased diligence in analysing the applicant ’ s statements (compare B v. Romania, cited above, § 57). Moreover, particular attention should have been also focused on analysing the validity of the applicant ’ s consent to the sexual acts in the light of her intellectual capacity. However, it appears that none of the personal circumstances of the applicant, such as her age and her mental and physical development or the circumstances in which the incident took place – at night, in cold weather, as well as the number of men who took part in it – were considered by the prosecutors or the judges deciding on this case. 57. The conclusions drawn by the prosecutor and the domestic courts appear to have been based only on the statements given by the alleged perpetrators, taken together with the fact that the applicant ’ s body showed no signs of violence and that she had not called for help or immediately told her girlfriends about the alleged abuse (see paragraphs 34 and 36 above). The Court notes in this context the multitude of investigative steps conducted in the example of domestic case-law submitted by the Government (see paragraph 39 above). 58. In view of the above elements, the Court considers that the authorities put undue emphasis on the absence of proof of resistance from the applicant and they failed to take a context - sensitive approach in the current case (see M.C. v. Bulgaria, cited above, § 182). The authorities ’ conduct was aggravated by the fact that no psychological evaluation was ever ordered by the domestic courts for the purposes of obtaining a specialist analysis of the applicant ’ s reactions from the point of view of her age. At the same time, the extensive medical evidence of the trauma suffered by the applicant following the incident at issue was not considered by the authorities at all. 59. Lastly, the Government claimed, among other arguments, that the applicant had given conflicting statements to the authorities. However, the Court notes that in the statements she gave throughout the investigation and trial, the applicant had merely clarified her initial statement, given immediately after the incident. The ones who appear to have re-considered their statements were M.C. and M.I.C. (see paragraphs 14, 22 and 26 above). Nevertheless, it is not clear from the case file whether the authorities took any steps to verify their credibility or the course of the events as described by the two men. 60. In view of the above, without expressing an opinion on the guilt of M.C., A.C.L. and V.F., the Court finds that the investigation of the applicant ’ s case fell short of the requirements inherent in the States ’ positive obligations to apply effectively a criminal-law system punishing all forms of rape and sexual abuse. 61. The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of the respondent State ’ s positive obligations under Article 3 of the Convention. In view of this conclusion, the Court also holds that no separate issue arises under Article 8 of the Convention (see I.G. v. Moldova, cited above, § 45). II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 62. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 63. The applicant claimed 30,000 euros (EUR) in respect of non ‑ pecuniary damage. 64. The Government submitted that the amount claimed was excessive. 65. The Court considers that the applicant must have suffered distress and psychological trauma resulting at least partly from the shortcomings in the authorities ’ approach in the present case. Making an assessment on an equitable basis, the Court awards her EUR 12 ,000 in respect of non-pecuniary damage. B. Costs and expenses 66. The applicant did not claim costs or expenses. Accordingly, the Court does not make any award under this head. C. Default interest 67. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 3 (prohibition of inhuman and degrading treatment) of the Convention, finding that the investigation of the case had been deficient, notably on account of the Romanian State’s failure to effectively apply the criminal-law system for punishing all forms of rape and sexual abuse. The Court noted in particular that neither the prosecutors nor the judges deciding on the case had taken a context-sensitive approach, failing to take into account the applicant’s young age, her slight intellectual disability and the fact that the alleged rape, involving three men, had taken place at night in cold weather – all factors which had heightened her vulnerability. Indeed, particular attention should have been focused on analysing the validity of the applicant’s consent to the sexual acts in the light of her slight intellectual disability. International materials on the situation of people with disabilities pointed out that the rate of abuse and violence committed against people with disabilities was considerably higher than the rate for the general population. In that context, the nature of the sexual abuse against the applicant had been such that the existence of useful detection and reporting mechanisms had been fundamental to the effective implementation of the relevant criminal laws and to her access to appropriate remedies. Moreover, those shortcomings were aggravated by the fact that no psychological evaluation had ever been ordered by the national courts in order to obtain a specialist analysis of the applicant’s reactions in view of her young age. At the same time, the authorities had not considered at all the extensive medical evidence of the trauma she had suffered following the incident. |
170 | Conditions of detention | II. RELEVANT DOMESTIC LAW AND PRACTICE 38. Aliens (Entry, Residence, Settlement and Expulsion) Act of 15 December 1980 (a) Appeals against decisions on the entry, residence, settlement and expulsion of aliens Section 63 “Administrative decisions may give rise to an appeal under the expedited procedure, an application to reopen the proceedings, a request for security measures to be lifted, an application to an administrative court to have the decision set aside or an appeal to an ordinary court in accordance with the following provisions. No summary application for an interim order under Article 584 of the Judicature Code will lie against an administrative decision taken pursuant to sections 3, 7, 11, 19, Part II, Chapter II, and Part III, Chapter I bis. ...” (b) Measures entailing deprivation of liberty Section 71 “Aliens against whom a measure depriving them of their liberty has been taken pursuant to sections 7, 2 5, 27, 29, second paragraph, 51/ 5(3), fourth paragraph, 52 bis, fourth paragraph, 54, 63 /5, third paragraph, 67 and 74/ 6 may appeal against that measure by lodging a notice of appeal with the chambre du conseil of the criminal court with jurisdiction for the area in which they reside in the Kingdom or the area in which they have been found. Aliens held in a designated place at the border pursuant to section 74/ 5 may appeal against the measure by lodging a notice of appeal with the chambre du conseil of the criminal court with jurisdiction for the area in which they are being held. They may renew the appeal referred to in the preceding paragraphs at monthly intervals.” Section 72 “The chambre du conseil shall deliver its decision within five working days after the date the appeal is lodged after hearing the submissions of the alien or of his or her counsel and the opinion of Crown Counsel. If the case has been referred to it by the Minister in accordance with section 74, the chambre du conseil must hear submissions from the Minister, his or her delegate or his or her counsel. If it fails to deliver its decision within the time allowed, the alien shall be released. The chambre du conseil shall review the legality of the detention and of the removal directions but shall have no power to review their reasonableness. An appeal shall lie against orders of the chambre du conseil by the alien, Crown Counsel and, in the circumstances set out in section 74, the Minister or his or her delegate. The procedure shall be the same as that applicable under the statutory provisions on pre-trial detention, with the exception of the provisions relating to arrest warrants, investigating judges, prohibitions on communications, release on licence or on bail, and the right to inspect the administrative file. Counsel for the alien may consult the case file at the registry of the relevant court during the two working days preceding the hearing. The registrar shall notify counsel of the decision by registered letter.” Section 73 “If the chambre du conseil decides that the alien is not to remain in custody, he or she shall be released as soon as the decision becomes final. The Minister may order the alien to reside in a designated place either until the removal directions have been carried out or until his or her appeal has been decided.” Section 74 “If the Minister decides to prolong the alien ’ s detention or to keep him or her under arrest pursuant to section 7, paragraph 5, section 25, paragraph 5, section 29, paragraph 3, section 74/ 5 ( 3 ), or section 74 / 6 ( 2 ), he or she must apply within five working days of that decision to the chambre du conseil with jurisdiction for the area in which the alien is resident in the Kingdom or was found to enable it to determine whether the decision is lawful. If no application is made to the chambre du conseil within that period, the alien shall be released. The remainder of the procedure shall be as stated in sections 72 and 73.” Section 74/ 4 “§ 1. Any public or private carrier bringing passengers into the Kingdom who are not in possession of the documents required by section 2 or who come within any of the other categories referred to in section 3 shall transport or arrange for the transport of such passengers without delay to the country from which they have come or to any other country prepared to accept them. § 2. Any public or private carrier which has brought passengers into the Kingdom will also be required to remove them if: (a) the carrier that was due to take them to their country of destination refuses to allow them to embark; or (b) the authorities in the State of destination refuse them leave to enter and send them back to the Kingdom and access to the Kingdom is refused because they do not possess the documents required by section 2 or they fall within any of the other categories referred to in section 3. § 3. If the passengers do not possess the documents required by section 2 and their immediate removal is not possible, the public or private carrier shall be jointly liable with the passengers for the costs of the passengers ’ accommodation and stay and any medical expenses they incur. ...” Section 74/ 5 “§ 1. The following persons may be held in a designated place at the border pending the grant or refusal of leave to enter the Kingdom or their removal from the territory: 1 o aliens who, pursuant to the provisions of this Act, are liable to be refused entry by the immigration authorities; 2 o aliens who attempt to enter the Kingdom without satisfying the conditions set out in section 2, who claim to be refugees and request refugee status at the border. § 2. The Crown may designate other places within the Kingdom which will be assimilated to the places referred to in § 1. Aliens held in such other places shall not be deemed to have been given leave to enter the Kingdom. § 3. Detention in a designated place at the border may not exceed two months. The Minister or his or her delegate may however prolong the detention of an alien referred to in § 1 for two-month periods provided: 1 o the alien is the subject of enforceable removal directions, an enforceable decision to refuse entry or an enforceable decision upholding the refusal of entry; and 2 o the steps necessary to remove the alien are taken within seven working days of the decision or measure referred to in 1 o and are prosecuted with all due diligence and the alien ’ s physical removal within a reasonable period remains possible. After one extension has been granted, the decision referred to in the preceding paragraph may only be taken by the Minister. The total length of detention shall under no circumstances exceed five months. If the preservation of law and order or national security so demands, aliens may be held for further successive one-month periods after the time-limit referred to in the preceding paragraph has expired, provided that the total length of their detention shall not on that account exceed eight months. § 4. The following may enter the Kingdom: 1 o aliens referred to in § 1 against whom no decision or enforceable measure referred to in § 3, paragraph 1, 1 o has been taken; 2 o aliens referred to in § 1 against whom an enforceable decision or measure referred to in § 3, paragraph 1, 1 o has been taken but in respect of whom the Minister or his or her delegate has not extended the period at the end of the two-month period or of any extension thereof; 3 o aliens referred to in § 1 who have been held for a total period of five or eight months respectively. ...” III. RELEVANT INTERNATIONAL LAW AND PRACTICE 39. Convention on the Rights of the Child of 20 November 1989, ratified by Belgium by a law of 25 November 1991 Article 3 “1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. 2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures. 3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision .” Article 10 “1. In accordance with the obligation of States Parties under Article 9, paragraph 1, applications by a child or his or her parents to enter or leave a State Party for the purpose of family reunification shall be dealt with by States Parties in a positive, humane and expeditious manner. States Parties shall further ensure that the submission of such a request shall entail no adverse consequences for the applicants and for the members of their family. ...” Article 22 “1. States Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties. 2. For this purpose, States Parties shall provide, as they consider appropriate, cooperation in any efforts by the United Nations and other competent intergovernmental organisations or non-governmental organisations cooperating with the United Nations to protect and assist such a child and to trace the parents or other members of the family of any refugee child in order to obtain information necessary for reunification with his or her family. In cases where no parents or other members of the family can be found, the child shall be accorded the same protection as any other child permanently or temporarily deprived of his or her family environment for any reason, as set forth in the present Convention.” Article 37 “States Parties shall ensure that: ... ( b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time; ( c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child ’ s best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances; ...” 40. In its “ Concluding observations of the Committee on the Rights of the Child: Belgium ” of 13 June 2002, the Committee on the Rights of the Child made the following recommendation to Belgium : “28. ... (a) Expedite efforts to establish special reception centres for unaccompanied minors, with special attention to those who are victims of trafficking and/or sexual exploitation; (b) Ensure that the stay in those centres is for the shortest time possible and that access to education and health is guaranteed during and after the stay in the reception centres; (c) Approve as soon as possible the draft law on the creation of a guardianship service, in order to ensure the appointment of a guardian for an unaccompanied minor from the beginning of the asylum process and thereafter as long as necessary, and make sure that this service is fully independent, allowing it to take any action it considers to be in the best interests of this minor; (d) Ensure unaccompanied minors are informed of their rights and have access to legal representation in the asylum process; (e) Improve cooperation and exchange of information among all the actors involved, including the Aliens Office and other relevant authorities, police services, tribunals, reception centres and NGOs; (f) Ensure that, if family reunification is carried out, it is done in the best interests of the child; (g) Expand and improve follow-up of returned unaccompanied minors.” THE LAW I. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION 41. The applicants complained that the second applicant had been detained and deported in violation of Article 3 of the Convention, which provides: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Detention of the second applicant 1. The applicants ’ submissions 42. The applicants submitted that the detention of the second applicant, who was then five years old, for nearly two months in a closed centre for adults constituted inhuman or degrading treatment prohibited by Article 3 of the Convention. They explained that Transit Centre no. 127 was a closed centre near Brussels Airport used to detain illegal immigrants pending their removal from the country. As had been noted in the Committee on the Rights of the Child ’ s second report on Belgium dated 7 July 2002, no facilities for children of the second applicant ’ s age existed in 2002. Accordingly, no arrangements were in place to attend to the second applicant ’ s needs and the only assistance she received was from another Congolese minor. Despite all the assistance given by individual members of staff, the fact remained that there had been a violation of Article 3 of the Convention as, at a crucial stage in her development, the second applicant had been denied freedom of movement, had been unable to play or express her feelings, and had been held in precarious conditions in an adult world where liberty was restricted. The Government had had other, more appropriate, options at their disposal. They could, for instance, have placed the second applicant with the Aid to Young People Department. The applicants noted, lastly, that the second applicant had suffered from sleeping disorders after her release from detention. 2. The Government ’ s submissions 43. The Government argued that, in order to determine whether the second applicant ’ s detention for two months in a closed centre – Transit Centre no. 127 – was capable of constituting inhuman or degrading treatment, the facts of the case had to be taken into account. In their submission, it had not been possible for the child to be given permission to enter Belgian territory without any identity papers or a visa. Nor could she have been allowed to leave with her uncle, as he had not provided any evidence to show that he was her guardian or established that he was a relative. At that juncture the Canadian authorities had not offered to issue a laissez-passer, and indeed none had been requested by the applicants. Had the first applicant travelled to Belgium, her daughter ’ s detention and subsequent removal would, no doubt, have been avoided. 44. The chances of finding accommodation in a more suitable centre were virtually non-existent and, above all, would not have guaranteed the child ’ s supervision or, therefore, her protection. There had accordingly been a risk that she would disappear. Furthermore, although the place of detention was not adapted to the needs of a five-year-old child, particularly for what turned out to be quite a lengthy period, the explanation for this lay in the exceptional circumstances of the case and in the fact that, since situations of this type were relatively rare at the time, adequate procedures and structures had yet to be established. Legislation had since been introduced in the form of the financial planning Act ( loi-programme ) of 24 December 2002, which provided for the appointment of a guardian and for the minor to be taken into care. In addition, on 19 May 2006, the Cabinet had approved in principle a measure intended to prohibit the detention in a closed centre of unaccompanied foreign minors arrested at the border. 45. The first applicant had been informed of her daughter ’ s situation straightaway and had been allowed to speak with her on the telephone for as long as she wished. The staff at the centre had gone to considerable lengths to look after the second applicant, as Mr Ma. had noted in his letter of 23 August 2002. Moreover, in his report of 23 November 2004, the director of Transit Centre no. 127 had noted that the medical and administrative staff at the centre had been attentive to her needs, that she had had daily telephone contact with her mother and uncle and had been integrated into the family life of children of her own age by the children ’ s mothers. In the light of all this, it was not so much the second applicant ’ s detention in the instant case that was in issue but the very principle of the detention of minors and the fact that the Belgian authorities had rejected the proposed alternative accommodation. 46. As to the length of the detention, the explanation for this lay in the lengths to which the authorities had gone to clarify the second applicant ’ s situation, a particular example of this being the care with which the Commissioner-General for Refugees and Stateless Persons had examined her expedited appeal. Various requests for information had been made by the Aliens Office to various persons and bodies, including international organisations and private individuals in Canada and the Democratic Republic of Congo, in order to find the most appropriate solution. Another contributory factor had been the unceasing efforts the Belgian authorities had made to find a suitable home for the second applicant in her country of origin following the dismissal of her application for asylum. 47. The Government further alleged that areas of uncertainty remained in the case. For example, why was it that no application for a visa was made at the time to enable the second applicant to continue her journey to Canada and what had become of the second applicant ’ s father. There were also question marks over the first applicant ’ s conduct : she had not mentioned the existence of her two children in her application for asylum in Canada or sought a visa to enable her to travel to Belgium as a matter of urgency, firstly to be with her daughter and then to take her back to Canada. The Government considered that both the first applicant and the family had failed to cooperate with the competent authorities and had brought the situation of which they now complained upon themselves by treating certain matters as a “ fait accompli ”. They argued that the first applicant could not therefore hold the Belgian State accountable for the two months during which it had looked after the second applicant as well as it was able. 3. The Court ’ s assessment 48. Article 3 makes no provision for exceptions. This absolute prohibition of torture and of inhuman or degrading treatment or punishment under the terms of the Convention shows that Article 3 enshrines one of the fundamental values of the democratic societies making up the Council of Europe ( see Soering v. the United Kingdom, 7 July 1989, § 8 8, Series A no. 161). In order to fall within the scope of Article 3, the ill-treatment must attain a minimum level of severity, the assessment of which depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim ( see, among other authorities, Raninen v. Finland, 16 December 1997, § 55, Reports of Judgments and Decisions, 1997 ‑ VIII ). In order to carry out this assessment, regard must be had to “ the fact that the Convention is a ‘ living instrument which must be interpreted in the light of present-day conditions ’ [and] that the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies ” ( see, mutatis mutandis, Selmouni v. France [GC], no. 25803/94, § 101, ECHR 1999-V). 49. The Court will first examine the Article 3 complaint of the second applicant – she being the person who was detained – before proceeding to consider the complaint of her mother (the first applicant), who also claims that she was a victim of the measure. ( a) The second applicant 50. The Court notes that the second applicant, who was only five years old, was held in the same conditions as adults. She was detained in a centre that had initially been designed for adults, even though she was unaccompanied by her parents and no one had been assigned to look after her. No measures were taken to ensure that she received proper counselling and educational assistance from qualified personnel specially mandated for that purpose. That situation lasted for two months. It is further noted that the respondent State have acknowledged that the place of detention was not adapted to her needs and that there were no adequate structures in place at the time. 51. A five-year-old child is quite clearly dependent on adults and has no ability to look after itself so that, when separated from its parents and left to its own devices, it will be totally disoriented. 52. The fact that the second applicant received legal assistance, had daily telephone contact with her mother or uncle and that staff and residents at the centre did their best for her cannot be regarded as sufficient to meet all her needs as a five-year-old child. The Court further considers that the uncoordinated attention she received was far from adequate. 53. It reiterates that the obligation on High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken in conjunction with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment, including such ill-treatment administered by private individuals ( see, mutatis mutandis, Z and Others v. the United Kingdom [GC], no. 29392/95, § 73, ECHR 2001-V, and A. v. the United Kingdom, 23 September 1998, § 22, Reports 1998-VI). Steps should be taken to enable effective protection to be provided, particularly to children and other vulnerable members of society, and should include reasonable measures to prevent ill-treatment of which the authorities have or ought to have knowledge ( see Osman v. the United Kingdom, 28 October 1998, § 116, Reports 1998-VIII). 54. In this connection, the Court must examine whether or not the impugned regulations and practices, and in particular the manner in which they were implemented in the instant case, were defective to the point of constituting a violation of the respondent State ’ s positive obligations under Article 3 of the Convention. 55. The second applicant ’ s position was characterised by her very young age, the fact that she was an illegal immigrant in a foreign land and the fact that she was unaccompanied by her family from whom she had become separated so that she was effectively left to her own devices. She was thus in an extremely vulnerable situation. In view of the absolute nature of the protection afforded by Article 3 of the Convention, it is important to bear in mind that this is the decisive factor and it takes precedence over considerations relating to the second applicant ’ s status as an illegal immigrant. She therefore indisputably came within the class of highly vulnerable members of society to whom the Belgian State owed a duty to take adequate measures to provide care and protection as part of its positive obligations under Article 3 of the Convention. 56. The Court observes that, whereas under the general law minors came within the jurisdiction of the youth courts, there was a legal void at the time in respect of unaccompanied foreign minors. The respondent State accepted that the prospects of finding accommodation in a more suitable centre were virtually non-existent and that such centres as did exist did not have facilities for the child ’ s supervision or, therefore, protection. Furthermore, there was no statutory basis on which the courts could review the conditions under which minors were held or require the authorities to provide legal, humanitarian and social assistance where necessary ( see, mutatis mutandis, Amuur v. France, 25 June 1996, § 53, Reports 1996-III). The only available remedy was an application to the chambre du conseil under section 71 of the aforementioned Act. In such cases, the question before the chambre du conseil was whether the detention was lawful, not whether it was appropriate. 57. Following an application by the second applicant ’ s lawyer on 9 October 2002, the chambre du conseil ruled on 16 October 2002 that the second applicant ’ s detention was unlawful under the Convention on the Rights of the Child and ordered her immediate release. It expressly found that it had no jurisdiction to examine the appropriateness of detention or the conditions in which she was held, or to modify the regime and order alternative arrangements. Moreover, prior to applying to the chambre du conseil, the second applicant ’ s lawyer had referred the matter to the Aliens Office on 26 September 2002 and, referring to her isolation and the risks of psychological damage, requested her placement with foster parents or, failing that, in a specialised institution. The inescapable conclusion must therefore be that the domestic authorities failed to take action to avoid or remedy the alleged shortcomings, despite being expressly informed of the position. Furthermore, in his decision of 25 September 2002, the Commissioner-General for Refugees and Stateless Persons had drawn the Minister of the Interior ’ s attention to the fact that the second applicant was a minor and entitled to be reunited with her family by virtue of Article 10 of the Convention on the Rights of the Child. On 13 June 2002 the Committee on the Rights of the Child had recommended that the Belgian State should expedite efforts to establish special reception centres and that stays in such centres should be for the shortest time possible. 58. The Court considers that the measures taken by the Belgian authorities – informing the first applicant of the position, giving her a telephone number where she could reach her daughter, appointing a lawyer to assist the second applicant and liaising with the Canadian authorities and the Belgian embassy in Kinshasa – were far from sufficient to fulfil the Belgian State ’ s obligation to provide care for the second applicant. The State had, moreover, had an array of means at its disposal. The Court is in no doubt that the second applicant ’ s detention in the conditions described above caused her considerable distress. Nor could the authorities who ordered her detention have failed to be aware of the serious psychological effects it would have on her. In the Court ’ s view, the second applicant ’ s detention in such conditions demonstrated a lack of humanity to such a degree that it amounted to inhuman treatment. 59. There has therefore been a violation of Article 3 of the Convention. ( b) The first applicant 60. The Court reiterates, firstly, that Article 3 affords absolute protection, irrespective of any reprehensible conduct on the part of the applicant ( see, mutatis mutandis, Soering, cited above, § 88). Accordingly, it cannot accept the Belgian Government ’ s argument that the conduct of the first applicant was such as to prevent the Court from finding a violation. 61. The Court reiterates, secondly, that the issue whether a parent qualifies as a “ victim ” of the ill-treatment of his or her child will depend on the existence of special factors which give the applicant ’ s suffering a dimension and character distinct from the emotional distress which may be regarded as inevitably caused to relatives of a victim of a serious human rights violation. Relevant elements will include the proximity of the family tie – in that context, a certain weight will attach to the parent-child bond – the particular circumstances of the relationship and the way in which the authorities responded to the parent ’ s enquiries. The essence of such a violation lies in the authorities ’ reactions and attitudes to the situation when it is brought to their attention. It is especially in respect of this latter factor that a parent may claim directly to be a victim of the authorities ’ conduct ( see, mutatis mutandis, Çakıcı v. Turkey [GC], no. 23657/94, § 98, ECHR 1999-IV, and Hamiyet Kaplan and Others v. Turkey, no. 36749/97, § 67, 13 September 2005 ). 62. As regards the Belgian authorities ’ conduct towards the first applicant, it is apparent from the material before the Court that the only action the Belgian authorities took was to inform her that her daughter had been detained and to provide her with a telephone number where she could be reached. The Court has no doubt that, as a mother, the first applicant suffered deep distress and anxiety as a result of her daughter ’ s detention. In view of the circumstances of the case, the Court concludes that the level of severity required for a violation of Article 3 of the Convention was attained in the present case. 63. There has therefore been a violation of Article 3 of the Convention. B. The second applicant ’ s deportation 1. The applicants ’ submissions 64. The applicants also alleged that the Belgian authorities had engaged in treatment proscribed by Article 3 of the Convention in that they had deported the second applicant without awaiting the Canadian authorities ’ decision on their application for family reunification and had failed to ensure that she would be met by a member of the family or, at least, a Belgian official. They said that the second applicant, who was only five years old at the time, had travelled without anyone being assigned to accompany her and had been forced to wait at Kinshasa Airport from 5 p.m. until approximately 11 p.m., when Ms T. arrived to collect her. In their submission, deporting the child of a person with recognised refugee status was contrary to the fundamental rule that asylum - seekers should not be expelled. There was, furthermore, a danger in such cases that the authorities in the country of origin would use the child ’ s presence there to compel the refugee to return or even that they would seek to exact revenge on the child. The applicants added that the Government had been aware that neither B., who was a student, nor any other member of the family was in a position to look after the second applicant. In their submission, their case had to be distinguished from the case of Nsona v. the Netherlands (28 November 1996, Reports 1996 ‑ V), in which a nine-year-old girl had been deported in an aircraft belonging to one of her father ’ s acquaintances and had been accompanied by a ( sufficiently ) close relative. The present case was different in that the second applicant had travelled alone. It was not enough to say that an air hostess had been assigned to look after her by the airline. Furthermore, the complications in Nsona had come about following the intervention of counsel for the applicant in that case, which was not the position in the present case. The fact that the Belgian authorities had been aware of the first applicant ’ s refugee status in Canada and that the second applicant had ultimately returned to Europe after five days indicated that the decision to deport her was disproportionate. Lastly, as the applicants had already stated with regard to the second applicant ’ s detention, the Government had had other means at their disposal. 2. The Government ’ s submissions 65. The Government submitted that in the absence of papers authorising the second applicant to travel and to enter the country, the Belgian authorities had had no reason not to deport her. In addition, the first applicant had at no stage established that she was the child ’ s mother and the Belgian authorities had managed to establish contact with other members of her family. In those circumstances, they had acted properly in sending the child back to her family. The Government said that removal had been necessary and that there had been a legal basis for it, so that the arguments had to be confined to the conditions in which the deportation had taken place. They observed that the applicants had not alleged that the second applicant was at risk of treatment proscribed by Article 3 if she returned to Kinshasa; the applicants ’ argument was that, on account of her age, deportation itself constituted proscribed treatment. In the Government ’ s submission, the arrangements made for the second applicant ’ s removal were comparable to those in Nsona and, indeed, in certain respects were more favourable than in that case. Although the trauma suffered by the child and the lack of anyone to meet her at Kinshasa Airport were regrettable, there had been no problems with the conditions in which the second applicant had travelled as she had been accompanied all the way to the airport by a social worker and there placed in the care of an air hostess who had been assigned to accompany her by the airline, as its report dated 25 October 2002 indicated. The Belgian authorities had, moreover, received assurances that members of the second applicant ’ s family would collect her at the airport. Nor were the authorities responsible for the fact that her uncle, B., had reneged on his promise at the last minute; in any event, his failure to turn up had been of no consequence because the child was met by a representative of the Congolese authorities, who had accommodated her for the night. The Government considered that primary responsibility for the additional inconvenience that was caused to the child lay with B. Nevertheless, they acknowledged that the deportation was not executed with proper vigilance. In particular, they admitted that they should have anticipated the possibility that B. might not turn up and regretted not having done so. The Government nonetheless considered that the child ’ s family had no grounds for complaint in that respect, as it was the family, and in particular the first applicant, who were responsible for the situation. 3. The Court ’ s assessment 66. The Court will begin by examining the complaint concerning the second applicant ’ s rights and would state at the outset that it is struck by the failure to provide adequate preparation, supervision and safeguards for her deportation. For example, the Belgian authorities stood by their decision to proceed with the second applicant ’ s deportation on 17 October 2002 despite two new factual developments, these being the chambre du conseil ’ s decision of the previous day to order her immediate release on the grounds that her detention was unlawful and the fact that the UNHCR had informed the authorities that the first applicant had acquired refugee status in Canada. 67. As regards the conditions in which the second applicant travelled, the Court notes that, although an assistant from the centre accompanied her as far as customs, the second applicant had to travel alone as the Belgian authorities had not assigned an adult to accompany her. As to the arrangements in her country of origin, the Belgian authorities merely informed her uncle B., who was the only relative they had managed to trace in Kinshasa, of her arrival, but did not expressly require his presence or make sure that he would be at the airport. The Court cannot, therefore, accept the Government ’ s submission that they were not responsible for the situation or for the fact that B. did not turn up. The Belgian authorities had not considered or made alternative arrangements for the second applicant ’ s arrival and it was only after several hours ’ wait at the airport that a solution – and a wholly improvised one at that – was found by the Congolese authorities. 68. In the Court ’ s view, this shows that the Belgian authorities did not seek to ensure that the second applicant would be properly looked after or have regard to the real situation she was likely to encounter on her return to her country of origin. This view is not altered by the fact that the airline decided to assign an air hostess – an ordinary member of the flight crew – to look after her for the duration of the flight or that the second applicant was ultimately taken into the home of a representative of the Congolese authorities after an almost six-hour wait at the airport. 69. The Court considers that the second applicant ’ s deportation in such conditions was bound to cause her extreme anxiety and demonstrated such a total lack of humanity towards someone of her age and in her situation as an unaccompanied minor as to amount to inhuman treatment. The Court also finds that, by deporting the second applicant, the Belgian State violated its positive obligations to take requisite measures and precautions. 70. As regards the first applicant and in the light of the case-law it has cited in relation to the previous complaint (see paragraph 61 above), the Court notes in particular that the Belgian authorities did not trouble themselves to advise her of her daughter ’ s deportation so that she only became aware of it when she tried to reach her at the closed centre on the telephone after the deportation had already taken place. The Court has no doubt that this caused the first applicant deep anxiety. The disregard such conduct showed for her feelings and the evidence in the case file lead the Court to find that the requisite threshold of severity has been attained in the present case. 71. It follows from the foregoing that there has been a violation of both applicants ’ rights under Article 3 of the Convention on account of the second applicant ’ s deportation. II. ALLEGED VIOLATIONS OF ARTICLE 8 OF THE CONVENTION 72. The applicants complained that the second applicant ’ s detention and deportation also violated Article 8 of the Convention, which reads: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. The second applicant ’ s detention 1. The applicants ’ submissions 73. The applicants submitted that the second applicant ’ s detention also violated Article 8 of the Convention as it constituted disproportionate interference with their right to respect for their private and family life. The Belgian State was or should have been aware of the first applicant ’ s refugee status in Canada because of the letters it had received from Mr Ma. and the UNHCR ’ s intervention. The applicants argued that family reunification was a fundamental right of refugees and cited, among other authorities, Recommendation 1327 (1997) of the Parliamentary Assembly of the Council of Europe on the protection and reinforcement of the human rights of refugees and asylum-seekers in Europe. In their submission, the obligations incumbent on States that were parties to the Convention on the Rights of the Child signed in New York on 20 November 1989 (and in particular, Articles 3 and 10 thereof) could be used as a guide when assessing whether the interference with the child ’ s family life had been necessary. The reasons given by the Government in no way justified the interference, which had consisted of the second applicant ’ s detention notwithstanding a proposal by her lawyer for her to be placed with foster parents. Her illegal entry was not a reason for denying her fundamental rights; nor did her inability to travel to the Netherlands prevent her placement with foster parents. Furthermore, although family reunification in Canada would have taken some time, there had been no need to keep the child in a closed centre. Nor could the fact that members of her family had been located in Kinshasa serve to justify her detention since she was the daughter of a person with recognised refugee status and her return to her country of origin placed her safety and even her life at risk. The fact that the first applicant had been granted refugee status in Canada should, furthermore, have alerted the Belgian authorities to the need to act with great caution. Lastly, while the applicants accepted that the first applicant had been wrong to ask her brother to bring her daughter to Europe, they said that she had done so in the belief that it was in her daughter ’ s best interests. 2. The Government ’ s submissions 74. The Government pointed out that, while Article 8 did in principle apply to cases concerning aliens, an alien ’ s family life had to be reconciled with the State ’ s prerogatives in immigration cases. The Court had consistently affirmed in its case-law the principle that the State Parties to the Convention were entitled to control the entry of non-nationals into their territory and that that prerogative, which could result in interference with the alien ’ s family life, had to be exercised in conformity with the second paragraph of Article 8. In the Government ’ s submission, keeping an alien in detention after he or she had attempted to enter the national territory without complying with the relevant conditions and had asked to be given refugee status while the application for asylum was considered could not in itself be considered to constitute a violation of his or her family life. Detention enabled the State to issue a deportation order that would be enforceable in practice in the event of the request for asylum being turned down. The Government accepted that it was legitimate to enquire whether these principles ought to be moderated when the immigrant concerned was a young child. However, they nevertheless considered that in the instant case there had been no infringement of the second applicant ’ s family life for several reasons: (i) on her arrival at the airport, her uncle had fraudulently tried to pass her off as his daughter; (ii) no members of the family lived in Belgium; (iii) according to the information that had been provided to the authorities, it would not have been legally possible for the second applicant to continue her journey to the Netherlands with her uncle; (iv) the first applicant had not made any application for family reunification at the material time; (v) certain members of the family whom it had been possible to locate in Kinshasa had been contacted personally and duly informed of the second applicant ’ s arrival in her country of origin – moreover, there was no doubt that she would be permitted to enter the country; (vi) the Belgian authorities were not informed that the first applicant had been granted refugee status until 18 October 2002, that is to say, until after the deportation order had been executed. The Government further questioned why between July 2001 and August 2002 the first applicant had not made an application to the Canadian authorities and / or to the Canadian embassy in Kinshasa with a view to arranging for her daughter ’ s lawful immigration, preferring instead to use an illegal route with her brother ’ s assistance. They said in conclusion that the second applicant ’ s detention in a closed centre during the period necessary for the examination of her request for asylum and her appeal under the expedited procedure and from then till 17 October 2002 did not amount to interference that was contrary to the Convention. 3. The Court ’ s assessment 75. The Court considers that, by its very essence, the tie between the second applicant, a minor child, and her mother – the first applicant – comes within the definition of family life within the meaning of Article 8 of the Convention ( see, among other authorities, Keegan v. Ireland, 26 May 1994, § 44, Series A no. 290, and Hokkanen v. Finland, 23 September 1994, § 54, Series A no. 299-A), especially considering that in the instant case the first applicant had been granted refugee status, so that the interruption of family life was solely a result of her decision to flee her country of origin out of a genuine fear of persecution within the meaning of the Geneva Convention Relating to the Status of Refugees of 28 July 1951. The Government did not dispute the fact that the relationship between the applicants constituted family life and, in this connection, the Court reiterates that the mutual enjoyment by parent and child of each other ’ s company constitutes a fundamental element of family life ( see, mutatis mutandis, Olsson v. Sweden ( no. 1), 24 March 1988, § 59, Series A no. 130; Eriksson v. Sweden, 22 June 1989, § 58, Series A no. 156; and Gnahoré v. France, no. 40031/98, § 50, ECHR 2000-IX). 76. In the Court ’ s view, the second applicant ’ s detention amounted to interference with both applicants ’ rights under Article 8 of the Convention. Indeed, this was not disputed by the Government. 77. The Court reiterates that an infringement of an individual ’ s right to respect for his or her private and family life will violate Article 8 unless it is “in accordance with the law”, pursues one or more of the legitimate aims set out in paragraph 2 and is “necessary in a democratic society”, in other words, proportionate to the pursued objectives. The question before the Court is whether the interference was justified under paragraph 2 of Article 8 of the Convention. 78. The Court observes that the detention was based on section 74 / 5 of the Aliens (Entry, Residence, Settlement and Expulsion) Act of 15 December 1980 and was therefore in accordance with the law. 79. The second defendant was detained under the authorities ’ powers to control the entry and residence of aliens on the territory of the Belgian State. The decision to detain could have been in the interests of national security or the economic well-being of the country or, just as equally, for the prevention of disorder or crime. The Court therefore concludes that the interference pursued a legitimate aim for the purposes of the second paragraph of Article 8 of the Convention. 80. In order to determine whether the impugned measures were “necessary in a democratic society”, the Court will examine, in the light of the case as a whole, whether the detention was necessary in a democratic society, that is to say, whether it was justified by a pressing social need and, in particular, proportionate to the legitimate aim pursued ( see Amrollahi v. Denmark, no. 56811/00, § 33, 11 July 2002; Boultif v. Switzerland, no. 54273/00, § 46, ECHR 2001 ‑ IX; Adam v. Germany (dec.), no. 43359/98, 4 October 2001; and Mokrani v. France, no. 52206/00, § 26, 15 July 2003). The Court ’ s task here is to determine whether the second applicant ’ s detention struck a fair balance between the competing interests in the case. 81. The Convention does not guarantee, as such, any right for an alien to enter or stay on the territory of the State of which he or she is not a national ( see Moustaquim v. Belgium, 18 February 1991, § 43, Series A no. 193, and Beldjoudi v. France, 26 March 1992, § 74, Series A no. 234-A). Furthermore, the Contracting States are under a duty to maintain public order, in particular by exercising their right, as a matter of well-established international law, to control the entry and residence of aliens. In this connection, detention in centres used for aliens awaiting deportation will be acceptable only where it is intended to enable the States to combat illegal immigration while at the same time complying with their international obligations, including those arising under the European Convention on Human Rights and the Convention on the Rights of the Child ( ratified by Belgium in 1991). Furthermore, the States ’ interest in foiling attempts to circumvent immigration rules must not deprive aliens of the protection afforded by these conventions or deprive foreign minors, especially if unaccompanied, of the protection their status warrants. The protection of fundamental rights and the constraints imposed by a State ’ s immigration policy must therefore be reconciled. 82. The Court observes that the effect of the second applicant ’ s detention was to separate her from the member of her family in whose care she had been placed and who was responsible for her welfare, with the result that she became an unaccompanied foreign minor, a category in respect of which there was a legal void at the time. Her detention significantly delayed the applicants ’ reunification. The Court further notes that, far from assisting her reunification with her mother, the authorities ’ actions in fact hindered it. Having been informed at the outset that the first applicant was in Canada, the Belgian authorities should have made detailed enquiries of their Canadian counterparts in order to clarify the position and bring about the reunification of mother and daughter. The Court considers that that duty became more pressing from 16 October 2002 onwards, that being the date when the Belgian authorities received the fax from the UNHCR contradicting the information they had previously held. 83. The Court considers that the complaint can also be analysed from the perspective of the second applicant ’ s private life. It has often said that the expression “private life” is broad and does not lend itself to exhaustive definition. Thus, private life, in the Court ’ s view, includes a person ’ s physical and mental integrity. The guarantee afforded by Article 8 of the Convention is primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings ( see, mutatis mutandis, Niemietz v. Germany, 16 December 1992, § 29, Series A no. 251-B; Botta v. Italy, 24 February 1998, § 32, Reports 1998-I; and Von Hannover v. Germany, no. 59320/00, § 50, ECHR 2004 -VI ). In this connection, in the absence of any risk of the second applicant ’ s seeking to evade the supervision of the Belgian authorities, her detention in a closed centre for adults was unnecessary. Other measures could have been taken that would have been more conducive to the higher interest of the child guaranteed by Article 3 of the Convention on the Rights of the Child. These included her placement in a specialised centre or with foster parents. Indeed, these alternatives had in fact been proposed by the second applicant ’ s counsel. 84. The Court considers that, in view of her young age, the second applicant cannot bear any responsibility for her uncle ’ s attempts to deceive the Belgian authorities by passing her off as his daughter. The same applies to the conduct of her mother and family. Further, although the first applicant ’ s conduct was questionable and does not appear to have been entirely fault-free, it was not such as to deprive her of victim status in the instant case. 85. Ultimately, since the second applicant was an unaccompanied foreign minor, the Belgian State was under an obligation to facilitate the family ’ s reunification ( see, mutatis mutandis, Johansen v. Norway, 7 August 1996, § 78, Reports 1996 ‑ III; Eriksson, cited above, § 71; Ignaccolo-Zenide v. Romania, no. 31679/96, § 94, ECHR 2000-I; and Nuutinen v. Finland, no. 32842/96, § 127, ECHR 2000 ‑ VIII ). 86. In the light of all the foregoing considerations, the Court finds that there has been disproportionate interference with the applicants ’ right to respect for their family life. 87. There has therefore been a violation of Article 8 of the Convention. B. The second applicant ’ s deportation 1. The applicants ’ submissions 88. The applicants relied on the arguments they had used with respect to the complaint under Article 3 of the Convention. 2. The Government ’ s submissions 89. The Government argued that it had to be remembered that the first applicant had sought to deceive the Belgian authorities with her brother ’ s help. Her brother had clearly stated to the Belgian authorities that it was not his intention to look after his niece, as he did not wish to have problems with the Dutch authorities. The first applicant could have used her refugee papers or her Congolese passport, which had been issued on 27 September 2002, to travel. Moreover, her request to the Canadian authorities for asylum did not extend to the second applicant and between July 2001 and August 2002 she had not taken any action with a view to family reunification. The enquiries that had been made had revealed that she had members of her family living in Kinshasa. Lastly, the second applicant ’ s return to her country of origin had been organised in such a way that a Congolese official representative had been there to accommodate her when her family failed to meet her in Kinshasa. 3. The Court ’ s assessment 90. The Court does not consider it necessary to recapitulate the circumstances in which the deportation took place, as these have already been described above (see paragraphs 66 et seq.). It reiterates that the Belgian State had positive obligations in the instant case, including an obligation to take care of the second applicant and to facilitate the applicants ’ reunification (see paragraph 85 above). By deporting the second applicant, the authorities did not assist their reunification (see paragraph 82 above). Nor did they ensure that the second applicant would in fact be looked after in Kinshasa ( see paragraph 67 above). In these circumstances, the Court considers that the Belgian State failed to comply with its positive obligations and interfered with the applicants ’ right to respect for their family life to a disproportionate degree. 91. There has therefore been a violation of both applicants ’ rights under Article 8 of the Convention as a result of the second applicant ’ s deportation. III. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION AS A RESULT OF THE SECOND APPLICANT ’ S DETENTION 92. The applicants also argued that the second applicant ’ s detention violated Article 5 § 1 ( d) of the Convention, which provides : “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority; ” A. The applicants ’ submissions 93. In the applicants ’ submission, the second applicant ’ s detention did not serve the purpose set out in paragraph ( d) of Article 5, which was the only provision that permitted the detention of a minor. The sole aim of the detention in the present case had been to prevent the second applicant from entering Belgium and to facilitate her subsequent deportation to her country of origin. The applicants argued in the alternative that were the Court to consider that the word “person” referred to in Article 5 § 1 ( f) of the Convention included minors, the child ’ s age and minority would nevertheless remain an important factor in assessing the lawfulness of the detention. In other words, when a minor was detained, a stricter review would be required, in accordance with the Convention on the Rights of the Child. In such cases, the Government would have to be able to prove that the detention was in the child ’ s interest. In the second applicant ’ s case, there had been no need for the detention. Alternatives had been available such as permitting her to enter the country and stay with foster parents under the supervision of the Aid to Younger People in the French Community Department. Furthermore, the second applicant ’ s deportation could not be regarded as release from detention and so was in breach of the chambre du conseil ’ s order of 16 October 2002. The applicants added that Crown Counsel had, in fact, had only one aim when he decided to defer his appeal against the order for the second applicant ’ s release and that was to facilitate her removal by the Government. They said that proof of this was to be found in the letter from the Aliens Office dated 15 October 2002. It followed that the second applicant ’ s detention subsequent to the order of 16 October 2002 was unlawful, its sole purpose being to allow her deportation before the order for her release became final. B. The Government ’ s submissions 94. The basis for the detention of a foreign minor in Belgian law was to be found in section 74 / 5 of the Law of 15 December 1980, which made no distinction between aliens who had reached their majority and those who were still minors. There could be no one single answer to the question whether the detention of a foreign minor was lawful : the minor ’ s age and the particular difficulties with which the Belgian authorities were confronted were essential criteria for deciding on the best solution for the child. In any event, it would be hazardous to work on the premise that if a child was very young, it could “as it were serve as a safe conduct for third parties”, which was the situation that was in danger of arising if a rule was established prohibiting the detention of minors. The detention of a minor was, furthermore, consistent with the provisions of Article 5 § 1 ( f) of the Convention. As regards more specifically the detention subsequent to the chambre du conseil ’ s order of 16 October 2002, while it was true that that court had ruled that the second applicant ’ s continued detention in Transit Centre no. 127 was unlawful and had ordered her release, Crown Counsel had a right under section 72 of the Law of 15 December 1980 to appeal within twenty-four hours of the date of the decision. It was only on the expiration of that period that the order became final (in accordance with section 73 of the Act) and the alien had to be released. In the present case, the order of 16 October 2002 had not become final until midnight on 17 October 2002 and it was only at that point, once the time - limit for appealing had expired, that the second applicant had to be released. The Government said that it followed from this that the second applicant ’ s continued detention until 17 October 2002 – when she was taken to the airport to be put on the plane to Kinshasa – complied with the provisions of domestic law. The second applicant could not have been released because Crown Counsel had the right to reserve his decision whether or not to appeal. While it would have been possible to find someone to look after the child for twenty-four hours, this would not have been without difficulty. In the Government ’ s submission, it was not possible to say that the Belgian authorities ’ conduct was dictated by the success of the application for release as the flight had been booked a week previously. Lastly, it was quite clear that the detention had ended when the deportation order was executed. C. The Court ’ s assessment 95. The Court notes at the outset that the first applicant has not been detained and accordingly cannot claim personally to have been a victim of a violation of Article 5 of the Convention. 96. In so far as this complaint concerns the second applicant, the Court reiterates that the Contracting States are entitled to control the entry and residence of non-nationals on their territory at their discretion, but stresses that this right must be exercised in conformity with the provisions of the Convention, including Article 5. In proclaiming the right to liberty, paragraph 1 of Article 5 contemplates the physical liberty of the person and its aim is to ensure that no one should be dispossessed of this liberty in an arbitrary fashion ( see, mutatis mutandis, Amuur, cited above, § 42). The list of exceptions to the right to liberty secured in Article 5 § 1 is an exhaustive one and only a narrow interpretation of those exceptions is consistent with the aim of that provision ( see, mutatis mutandis, K. ‑ F. v. Germany, 27 November 1997, § 70, Reports 1997 ‑ VII; Čonka v. Belgium, no. 51564/99, § 42, ECHR 2002-I; and D.G. v. Ireland, no. 39474/98, § 74, ECHR 2002-III). Detention must be lawful both in domestic and Convention terms: the Convention lays down an obligation to comply with the substantive and procedural rules of national law and requires that any deprivation of liberty should be in keeping with the purpose of Article 5 which is to protect an individual from arbitrariness ( see Winterwerp v. the Netherlands, 24 October 1979, §§ 39 and 45, Series A no. 33; Bozano v. France, 18 December 1986, § 54, Series A no. 111; and Weeks v. the United Kingdom, 2 March 1987, § 42, Series A no. 114). 97. In order to ascertain whether a deprivation of liberty has complied with the principle of compatibility with domestic law, the Court must assess not only the legislation in force in the field under consideration, but also the quality of the other legal rules applicable to the persons concerned. Quality in this sense implies that a national law authorising deprivation of liberty must be sufficiently accessible and precise, in order to avoid all risk of arbitrariness. 98. As regards the compatibility of the detention with domestic law in the instant case, the Court considers that two periods can be distinguished, these being the period prior to the order of 16 October 2002 in which the chambre du conseil declared the second applicant ’ s detention unlawful and the period after that date. It observes that the Government have not sought to argue that the chambre du conseil ’ s ruling that the detention was illegal affected the second applicant ’ s victim status. In any event, it notes that the ruling did not bring the detention to an end. In the Court ’ s view, the finding by the domestic court that the first period of detention was unlawful raises serious doubts as to the lawfulness of the second period. 99. The second applicant was placed in detention pursuant to section 74 / 5 of the Aliens (Entry, Residence, Settlement and Expulsion) Act of 15 December 1980, initially pending a decision on her application for asylum and subsequently pending her deportation. At that time, the Act did not contain any provisions specific to minors. Thus, the fact that the alien concerned was a minor was of no relevance to the application of the provisions governing his or her detention. 100. The Court does not agree with the second applicant ’ s submission that paragraph ( d) of Article 5 § 1 of the Convention is the only provision which permits the detention of a minor. It in fact contains a specific, but not exhaustive, example of circumstances in which minors might be detained, namely for the purpose of their educational supervision or for the purpose of bringing them before the competent legal authority to decide. 101. In the instant case, the ground for the second applicant ’ s detention was that she had entered the country illegally as she did not have the necessary documents. Her detention therefore came within paragraph ( f) of Article 5 § 1 of the Convention which permits “the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition”. 102. However, the fact that the second applicant ’ s detention came within paragraph ( f) of Article 5 § 1 does not necessarily mean that it was lawful within the meaning of this provision, as the Court ’ s case - law requires that there must be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention ( see, mutatis mutandis, Aerts v. Belgium, 30 July 1998, § 46, Reports 1998 ‑ V, with further references ). 103. The Court notes that the second applicant was detained in a closed centre intended for illegal immigrants in the same conditions as adults; these conditions were consequently not adapted to the position of extreme vulnerability in which she found herself as a result of her position as an unaccompanied foreign minor. 104. In these circumstances, the Court considers that the Belgian legal system at the time and as it functioned in this instance did not sufficiently protect the second applicant ’ s right to liberty. 105. There has therefore been a violation of the second applicant ’ s rights under Article 5 § 1 of the Convention. IV. ALLEGED VIOLATION OF ARTICLES 5 § 4 AND 13 OF THE CONVENTION 106. Relying on Articles 5 § 4 and 13 of the Convention, the applicants maintained that the Belgian State had rendered the second applicant ’ s appeal futile and ineffective by proceeding to deport her the day after her release was ordered, in defiance of that order. Article 5 § 4 provides : Article 5 § 4 “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” Article 13 reads as follows : Article 13 “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. The applicants ’ submissions 107. The applicants alleged that prolonging the second applicant ’ s detention and then proceeding to deport her following an order by the chambre du conseil for her immediate release was contrary to the Convention and rendered the remedy ineffective. In their submission, even assuming that detention could be prolonged in order to enable Crown Counsel to appeal against the order within twenty-four hours, detention could only be used for that purpose and not as a means to deport the alien within that period. Furthermore, once the alien had been deported, the powers of review of the chambre du conseil and the indictments division became redundant, even though deportation did not amount to release. They concluded from the above that they had not had an effective remedy in respect of the second applicant ’ s detention. B. The Government ’ s submissions 108. The Government maintained that the right of appeal to the chambre du conseil was an effective remedy within the meaning of the Convention. The chambre du conseil ’ s review concerned both the detention and the deportation order on which it was based. Referring specifically to the detention subsequent to the chambre du conseil ’ s order of 16 October 2002, the Government argued that their observations on the issue of the lawfulness of the second applicant ’ s detention showed that its extension until 17 October 2002 was lawful. The second applicant could not have been released because Crown Counsel had the right to reserve his decision whether or not to appeal. While it would have been possible to find someone to look after the child for twenty-four hours, this would not have been without difficulty. In the Government ’ s submission, it was not possible to say that the Belgian authorities ’ conduct was dictated by the success of the application for release as the flight had been booked a week previously. Lastly, it was quite clear that the detention ended when the deportation order was executed. C. The Court ’ s assessment 109. The Court has already found that since the first applicant was not detained she could not personally claim to have been a victim of a violation of Article 5 of the Convention (see paragraph 95 above). 110. In so far as this complaint is also made by the second applicant, the Court refers firstly to its case-law holding that a complaint under Article 13 will be absorbed by a complaint under Article 5 § 4 since the requirements of Article 13 are less strict than those of Article 5 § 4, which must be regarded as the lex specialis for Article 5 grievances ( see Chahal v. the United Kingdom, 15 November 1996, § 126, Reports 1996-V ). 111. The Court will therefore examine the complaint solely under Article 5 § 4 of the Convention. 112. The purpose of Article 5 § 4 is to assure to persons who are arrested and detained the right to a judicial supervision of the lawfulness of the measure to which they are thereby subjected ( see De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, § 76, Series A no. 12 ). The remedies must be made available during a person ’ s detention with a view to that person obtaining speedy judicial review of the lawfulness of the detention capable of leading, where appropriate, to his or her release ( see, mutatis mutandis, Slivenko v. Latvia [GC], no. 48321/99, § 158, ECHR 2003 ‑ X ). 113. The Court notes that the Belgian authorities made arrangements for the second applicant ’ s deportation on the day after she lodged an application to the chambre du conseil for release, that is to say, even before it had delivered its decision. Furthermore, the authorities did not at any stage reconsider the decision to deport her. The Court also notes that the second applicant was deported on the scheduled date, notwithstanding the fact that the twenty-four-hour period for an appeal by Crown Counsel, during which a stay applied, had not expired. Crown Counsel deliberately chose to reserve his decision after receiving a letter from the Belgian authorities informing him of their view that the second applicant should remain in detention so that she could be deported to Kinshasa. Lastly, the Government have acknowledged that the Belgian authorities ’ conduct was not dictated by the chambre du conseil ’ s decision to grant the application for release as her deportation had been arranged in advance. Even assuming that the second applicant ’ s deportation can be equated to “release” for the purposes of Article 5 § 4 of the Convention, it follows from the foregoing considerations that there was no link between her deportation and the exercise of the remedy or the fact that it was granted. In these circumstances, the Court finds that the second applicant ’ s appeal to the chambre du conseil appears, in the circumstances of the case, to have been ineffective. 114. There has therefore been a violation of Article 5 § 4 of the Convention. The Court does not consider that any separate examination of the complaint under Article 13 of the Convention is necessary. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 115. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 116. The applicants said that they had sustained non-pecuniary damage which they put at 10, 000 euros (EUR) for the first applicant and EUR 25, 000 for the second. 117. The Government observed that the first applicant had only requested family reunification after her daughter ’ s deportation and arrival in Canada (on 29 October 2002) and said that the first applicant ’ s role in the case had not been clearly established. Either she had been unaware that her daughter had left Kinshasa, in which case it had been on her brother ’ s initiative and it was to him and not the Government that she should address her grievances, or she herself had been the instigator, in which case she ought not to be awarded anything because she had knowingly broken the law. In the light of these considerations, the Government submitted that the finding of a violation would afford adequate compensation for the non-pecuniary damage sustained by the first applicant. They left the issue of the non-pecuniary damage sustained by the second applicant to the Court ’ s discretion whilst pointing out that they had sought to defend her interests as best they could in what, to say the least, had been a complex situation. 118. In the light of the various violations it has found, including the violation of both the first and second applicant ’ s rights under Article 3, which, as has been noted, confers absolute protection ( see Soering, cited above, § 88), the Court considers the sums claimed by each of the applicants reasonable and awards them the amounts by way of just satisfaction. B. Costs and expenses 119. The applicants, who have produced detailed fee notes, claimed EUR 14, 177. 04 for costs and expenses. This amount was broken down into EUR 10, 500 for the fees and expenses of Mr Vanheule, EUR 3, 042 for the fees and expenses of Mr Ma., EUR 141 for the fees of a Canadian lawyer, Mr A., in connection with family reunification in Canada in 2002, EUR 35 for the costs of a visa to enable the first applicant to attend the hearing before the Court and EUR 459. 04 in travel expenses. 120. The Government referred to the principles established by the Court and submitted that it should disallow the fees and expenses of Mr A., and at least part of the fees and expenses of Mr Ma. It left the remainder of the claim to the Court ’ s discretion. 121. According to the Court ’ s established case-law, costs and expenses will not be awarded under Article 41 unless it is established that they were actually and necessarily incurred and were also reasonable as to quantum. Furthermore, legal costs are only recoverable in so far as they relate to the violation found ( see Beyeler v. Italy ( just satisfaction) [GC], no. 33202/96, § 27, 28 May 2002). The Court notes that the Government have not contested Mr Vanheule ’ s fees or the first applicant ’ s claim in respect of the cost of her visa and travel expenses. It considers that the action taken by Mr Ma. was intended to prevent the violation it has found to have occurred and that the amount claimed in respect thereof is reasonable. Consequently, it awards the applicants the sum of EUR 14, 036 for costs and expenses, less the amount which the Council of Europe has granted in legal aid. C. Default interest 122. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The European Court of Human Rights held that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights in respect of the child, finding that her detention had demonstrated a lack of humanity and amounted to inhuman treatment. It noted in particular that the child, unaccompanied by her parents, had been detained for two months in a centre intended for adults, with no counselling or educational assistance from a qualified person specially mandated for that purpose. The care provided to her had also been insufficient to meet her needs. Furthermore, owing to her very young age, the fact that she was an illegal alien in a foreign land and the fact that she was unaccompanied by her family, the child was in an extremely vulnerable situation. However, no specific legal framework existed governing the situation of unaccompanied foreign minors and, although the authorities had been placed in a position to prevent or remedy the situation, they had failed to take adequate measures to discharge their obligation to take care of the child. |
32 | Placement of Roma gypsy children in “special” schools | II. RELEVANT DOMESTIC LAW AND PRACTICE A. The Schools Act 1984 (Law no. 29/1984 – since repealed by Law no. 561/2004, which came into force on 1 January 2005) 29. Prior to 18 February 2000, section 19(1) of the Schools Act provided that to be eligible for secondary-school education pupils had to have successfully completed their primary-school education. Following amendment no. 19/2000, which came into force on 18 February 2000, the amended section 19(1) provided that to be eligible for secondary-school education pupils had to have completed their compulsory education and demonstrated during the admission procedure that they satisfied the conditions of eligibility for their chosen course. 30. Section 31(1) provided that special schools were intended for children with “mental deficiencies” ( rozumové nedostatky ) that prevented them from following the curricula in ordinary primary schools or in specialised primary schools ( speciální základní škola ) intended for children suffering from sensory impairment, illness or disability. B. The Schools Act 2004 (Law no. 561/2004) 31. This new Act on school education no longer provides for special schools in the form that had existed prior to its entry into force. Primary education is now provided by primary schools and specialised primary schools, the latter being intended for pupils with severe mental disability or multiple disabilities and for autistic children. 32. Section 16 contains provisions governing the education of children and pupils with special educational needs. These are defined in subsection 1 as children suffering from a disability, health problems or a social disadvantage. Section 16(4) provides that for the purposes of the Act a child is socially disadvantaged, inter alia, if it comes from a family environment with low socio-cultural status or at risk of socio-pathological phenomena. Subsection 5 provides that the existence of special educational needs is to be assessed by an educational guidance centre. 33. The Act also makes provision, inter alia, for educational assistants, individualised education projects, preparatory classes for socially disadvantaged children prior to the period of compulsory school education and additional lessons for pupils who have not received a basic education. C. Decree no. 127/1997 on specialised schools (since repealed by Decree no. 73/2005, which came into force on 17 February 2005) 34. Article 2 § 4 of the Decree laid down that the following schools were available for pupils suffering from mental disability: specialised nursery schools ( speciální mateřské školy ), special schools, auxiliary schools ( pomocné školy ), vocational training centres ( odborná učiliště ) and practical training schools ( praktické školy ). 35. Article 6 § 2 stipulated that if during the pupil ’ s school career there was a change in the nature of his or her disability or if the specialised school was no longer adapted to the level of disability, the head teacher of the school attended by the pupil was required, after an interview with the pupil ’ s representative, to recommend the pupil ’ s placement in another specialised school or an ordinary school. 36. Article 7 § 1 stipulated that the decision to place a pupil in or transfer a pupil to, inter alia, a special school was to be taken by the head teacher, provided that the pupil ’ s legal guardians consented. Article 7 § 2 provided that a proposal for a pupil to be placed, inter alia, in a special school could be made to the head teacher by the pupil ’ s legal guardian, the pupil ’ s current school, an educational psychology centre, a hospital or clinic, an authority with responsibility for family and child welfare, a health centre, etc. In the event of the pupil not receiving a place in a special school, the head teacher was required by Article 7 § 3 to notify the pupil ’ s legal guardian and the competent school authority or the municipality in which the pupil was permanently resident of the decision. The education authority was then required, after consulting the municipality, to make a proposal regarding the school in which the pupil would receive his or her compulsory education. Article 7 § 4 required the educational psychology centre to assemble all the documents relevant to the decision and to make a recommendation to the head teacher regarding the type of school. D. Decree no. 73/2005 on the education of children, pupils and students with special educational needs and gifted children, pupils and students 37. Article 1 of the Decree provides that pupils and students with special educational needs are to be educated with the help of support measures that go beyond or are different from the individualised educational and organisational measures available in ordinary schools. 38. Article 2 provides that children whose special educational needs have been established with the aid of an educational or psychological examination performed by an educational guidance centre will receive special schooling if they have clear and compelling needs that warrant their placement in a special education system. E. Domestic practice at the material time 1. Psychological examination 39. The testing of intellectual capacity in an educational psychology centre with the consent of the child ’ s legal guardians was neither compulsory nor automatic. The recommendation for the child to sit the tests was generally made by teachers – either when the child first enrolled at the school or if difficulties were noted in its ordinary primary - school education – or by paediatricians. 40. According to the applicants, who cited experts in this field, the most commonly used tests appeared to be variants of the Wechsler Intelligence Scale for Children (PDW and WISC- III) and the Stanford-Binet intelligence test. Citing various opinions, including those of teachers and psychologists and the Head of the Special Schools Department at the Czech Ministry of Education in February 1999, the applicants submitted that the tests used were neither objective nor reliable, as they had been devised solely for Czech children, and had not recently been standardised or approved for use with Roma children. Moreover, no measures had been taken to enable Roma children to overcome their cultural and linguistic disadvantages in the tests. Nor had any instructions been given to restrict the latitude that was given in the administration of the tests and the interpretation of the results. The applicants also drew attention to a 2002 report in which the Czech Schools Inspectorate noted that children without any significant mental deficiencies were still being placed in special schools. 41. In the report submitted by the Czech Republic on 1 April 1999 pursuant to Article 25 § 1 of the Framework Convention for the Protection of National Minorities, it was noted that the psychological tests “are conceived for the majority population and do not take Romany specifics into consideration”. The Advisory Committee on the Framework Convention noted in its first report on the Czech Republic, which was published on 25 January 2002, that while these schools were designed for mentally handicapped children it appeared that many Roma children who were not mentally handicapped were placed in them owing to real or perceived language and cultural differences between Roma and the majority. The Committee stressed that “placing children in such special schools should take place only when it is absolutely necessary and always on the basis of consistent, objective and comprehensive tests”. In its second report on the Czech Republic published on 26 October 2005 the Advisory Committee observed: “Tests and methods used to assess children ’ s intellectual abilities upon school enrolment have already been revised with a view to ensuring that they are not misused to the detriment of Roma children. ” However, it noted with concern that “revision of the psychological tests used in this context has not had a marked impact. According to unofficial estimates, Roma account for up to 70% of pupils in [special] schools, and this – having regard to the percentage of Roma in the population – raises doubts concerning the tests ’ validity and the relevant methodology followed in practice”. 42. In its report on the Czech Republic published on 21 March 2000, the European Commission against Racism and Intolerance (ECRI) noted that channelling of Roma children to special schools was reported to be often quasi-automatic. According to ECRI, the poor results obtained by these children in the pre-school aptitude tests could be explained by the fact that in the Czech Republic most Roma children did not attend kindergarten education. ECRI therefore considered that the practice of channelling Roma/Gypsy children into special schools for those with mental retardation should be fully examined, to ensure that any testing used was fair and that the true abilities of each child were properly evaluated. In its next report on the Czech Republic, which was published in June 2004, ECRI noted that the test developed by the Czech Ministry of Education for assessing a child ’ s mental level was not mandatory, and was only one of a battery of tools and methods recommended to the educational guidance centres. 43. In his final report on the human rights situation of the Roma, Sinti and Travellers in Europe of 15 February 2006, the Commissioner for Human Rights observed: “Roma children are frequently placed in classes for children with special needs without an adequate psychological or pedagogical assessment, the real criteria clearly being their ethnic origin. ” 44. According to the observations submitted by the International Step by Step Association, the Roma Education Fund and the European Early Childhood Education Research Association, countries in east-central and south- eastern Europe typically lacked national definitions of “disability” (related to the placement of students in special schools) and used definitions in which some form of disability was connected to the socio-cultural background of the child, thus leaving the door to discriminatory practices open. Data on children with disabilities were drawn largely from administrative sources rather than being derived from a thorough assessment of the actual characteristics of the child. Thus, divisive practices and the use of a single test were common in the 1990s. It is alleged in the observations that the assessment used to place Roma children in special schools in the Ostrava region ran contrary to effective assessment indicators that were well known by the mid 1990s, for example, those published in 1987 by the National Association for the Education of Young Children (USA). These indicators were now associated with the Global Alliance for the Education of Young Children, which included member organisations in Europe and, more particularly, the Czech Republic. Relevant indicators included : ethical principles to guide assessment practices; the use of assessment instruments for their intended purposes and in such a way as to meet professional quality criteria; assessments appropriate to the ages and other characteristics of the children being assessed; recognition of the developmental and educational significance of the subject matter of the assessment; the use of assessment evidence to understand and improve learning; the gathering of assessment evidence from realistic settings and in situations that reflected children ’ s actual performance; the use of multiple sources of evidence gathered over time for assessments; the existence of a link between screening and follow- up; limitations on the use of individually administered, norm-referenced tests; and adequate information for staff and families involved in the assessment process. Thus, the assessment of Roma children in the Ostrava region did not take into account the language and culture of the children, or their prior learning experiences, or their unfamiliarity with the demands of the testing situation. Single rather than multiple sources of evidence were used. Testing was done in one sitting, not over time. Evidence was not obtained in realistic or authentic settings where children could demonstrate their skills. Undue emphasis was placed on individually administered, standardised tests normed on other populations. According to studies cited in these observations (UNICEF Innocenti Insight (2005); Save the Children (200 1 ), Denied a future? The right to education of Roma/Gypsy and Traveller children; D.J. Losen and G. Orfield (2002), Introduction: Racial inequity in special education, Cambridge, MA: Harvard Education Press ), disproportionately placing certain groups of students in special education resulted from an array of factors, including “unconscious racial bias on the part of school authorities, large resource inequalities, an unjustifiable reliance on IQ and other evaluation tools, educators ’ inappropriate responses to the pressures of high-stakes testing, and power differentials between minority parents and school officials”. Thus, school placement through psychological testing often reflected racial biases in the society concerned. 45. The Government observed that the unification of European norms used by psychologists was currently under way and that the State authorities had taken all reasonable steps to ensure that the psychological tests were administered by appropriately qualified experts with university degrees applying the latest professional and ethical standards in their specialised field. In addition, research conducted in 1997 by Czech experts at the request of the Ministry of Education showed that Roma children had attained in a standard test of intelligence (WISC- III) only insignificantly lower results than comparable non-Roma Czech children (one point on the IQ scale). 2. Consent to placement in a special school 46. Article 7 of Decree no. 127/1997 on specialised schools made the consent of the legal guardians a condition sine qua non for the child ’ s placement in a special school. The applicants noted that the Czech legislation did not require the consent to be in writing. Nor did information on the education provided by special schools or the consequences of the child ’ s placement in a special school have to be provided beforehand. 47. In its report on the Czech Republic published in March 2000, ECRI observed that Roma parents often favoured the channelling of Roma children to special schools, partly to avoid abuse from non-Roma children in ordinary schools and isolation of the child from other neighbourhood Roma children, and partly owing to a relatively low level of interest in education. In its report on the Czech Republic published in June 2004, ECRI noted that when deciding whether or not to give their consent parents of Roma children continued “ to lack information concerning the long-term negative consequences of sending their children to such schools ”, which were “ often presented to parents as an opportunity for their children to receive specialised attention and be with other Roma children”. 48. According to information obtained by the International Federation for Human Rights from its Czech affiliate, many schools in the Czech Republic are reluctant to accept Roma children. That reluctance is explained by the reaction of the parents of non-Roma children, which, in numerous cases, has been to remove their children from integrated schools because the parents fear that the level of the school will fall following the arrival of Roma children or, quite simply, because of prejudice against the Roma. It is in that context that Roma children undergo tests designed to ascertain their capacity to follow the ordinary curriculum, following which parents of Roma children are encouraged to place their children in special schools. The parents ’ choice to place their children in special schools, where that is what they choose to do, is consistent with the school authorities ’ desire not to admit so many Roma children that their arrival might induce the parents of non-Roma children to remove their own children from the school. 3. Consequences 49. Pupils in special schools follow a special curriculum supposedly adapted to their intellectual capacity. After completing their course of compulsory education in this type of school, they may elect to continue their studies in vocational training centres or, since 18 February 2000, in other forms of secondary school (provided they are able to establish during the admissions procedure that they satisfy the entrance requirements for their chosen course). Further, Article 6 § 2 of Decree no. 127/1997 stipulated that, if during the pupil ’ s school career there was a change in the nature of his or her disability or if the specialised school was no longer adapted to the level of disability, the head teacher of the school attended by the child or pupil was required, after an interview with the pupil ’ s guardian, to recommend the pupil ’ s placement in another specialised school or in an ordinary school. 50. In his final report on the human rights situation of the Roma, Sinti and Travellers in Europe of 15 February 2006, the Commissioner for Human Rights noted: “Being subjected to special schools or classes often means that these children follow a curriculum inferior to those of mainstream classes, which diminishes their opportunities for further education and for finding employment in the future. The automatic placement of Roma children in classes for children with special needs is likely to increase the stigma by labelling the Roma children as less intelligent and less capable. At the same time, segregated education denies both the Roma and non-Roma children the chance to know each other and to learn to live as equal citizens. It excludes Roma children from mainstream society at the very beginning of their lives, increasing the risk of their being caught in the vicious circle of marginalisation. ” 51. The Advisory Committee on the Framework Convention for the Protection of National Minorities noted in its second report on the Czech Republic, which was published on 26 October 2005, that placement in a special school “makes it more difficult for Roma children to gain access to other levels of education, thus reducing their chances of integrating in the society. Although legislation no longer prevents children from advancing from ‘ special ’ to ordinary secondary schools, the level of education offered by ‘ special ’ schools generally does not make it possible to cope with the requirements of secondary schools, with the result that most drop out of the system”. 52. According to the observations submitted by the International Step by Step Association, the Roma Education Fund and the European Early Childhood Education Research Association, the placement of children in segregated special schools was an example of a very early “ tracking ” of students, in this case by assigning children perceived to be of “low ability” or “low potential” to special schools from an early age. Such practices increased educational inequity as they had especially negative effects on the achievement levels of disadvantaged children (see, inter alia, the Communication from the Commission of the European Communities to the Council and to the European Parliament on efficiency and equity in European education and training systems (COM/2006/0481, 8 September 2006) ). The longer-term consequences of “ tracking ” included pupils being channelled towards less prestigious forms of education and training and pupils dropping out of school early. Tracking could thus help create a social construction of failure. 53. In their observations to the Court, the organisations Minority Rights Group International, European Network Against Racism and European Roma Information Office noted that children in special schools followed a simplified curriculum that was considered appropriate for their lower level of development. Thus, in the Czech Republic, children in special schools were not expected to know the alphabet or numbers up to ten until the third or fourth year of school, while their counterparts in ordinary schools acquired that knowledge in the first year. IV. RELEVANT COMMUNITY LAW AND PRACTICE 81. The principle prohibiting discrimination or requiring equality of treatment is well established in a large body of Community law instruments based on Article 13 of the Treaty establishing the European Community. This provision enables the Council, through a unanimous decision following a proposal/recommendation by the Commission and consultation of the European Parliament, to take the measures necessary to combat discrimination based on sex, race or ethnic origin, religion or belief, disability, age or sexual orientation. 82. Thus, Article 2 § 2 of Council Directive 97/80/EC of 15 December 1997 on the burden of proof in cases of discrimination based on sex provides that “ indirect discrimination shall exist where an apparently neutral provision, criterion or practice disadvantages a substantially higher proportion of the members of one sex unless that provision, criterion or practice is appropriate and necessary and can be justified by objective factors unrelated to sex”. Article 4 § 1, which concerns the burden of proof, reads: “Member States shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment. ” 83. Similarly, the aim of Council Directives 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin and 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation is to prohibit in their respective spheres all direct or indirect discrimination based on race, ethnic origin, religion or belief, disability, age or sexual orientation. The preambles to these Directives state as follows: “The appreciation of the facts from which it may be inferred that there has been direct or indirect discrimination is a matter for national judicial or other competent bodies, in accordance with rules of national law or practice. Such rules may provide in particular for indirect discrimination to be established by any means including on the basis of statistical evidence” and “The rules on the burden of proof must be adapted when there is a prima facie case of discrimination and, for the principle of equal treatment to be applied effectively, the burden of proof must shift back to the respondent when evidence of such discrimination is brought. ” 84. In particular, Directive 2000/43/EC provides as follows: Article 2 Concept of discrimination “1. For the purposes of this Directive, the principle of equal treatment shall mean that there shall be no direct or indirect discrimination based on racial or ethnic origin. 2. For the purposes of paragraph 1: (a) direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation on grounds of racial or ethnic origin; (b) indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons of a racial or ethnic origin at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary. ...” Article 8 Burden of proof “1. Member States shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment. 2. Paragraph 1 shall not prevent Member States from introducing rules of evidence which are more favourable to plaintiffs. 3. Paragraph 1 shall not apply to criminal procedures. ... 5. Member States need not apply paragraph 1 to proceedings in which it is for the court or competent body to investigate the facts of the case.” 85. Under the case-law of the Court of Justice of the European Communities (CJEC), discrimination, which entails the application of different rules to comparable situations or the application of the same rule to different situations, may be overt or covert and direct or indirect. 86. In its Giovanni Maria Sotgiu v. Deutsche Bundespost judgment of 12 February 1974 (Case 152-73, point 11), the CJEC stated: “The rules regarding equality of treatment ... forbid not only overt discrimination by reason of nationality but also all covert forms of discrimination which, by the application of other criteria of differentiation, lead in fact to the same result. ...” 87. In its Bilka-Kaufhaus GmbH v. Karin Weber von Hartz judgment of 13 May 1986 (Case 170/84, point 31), it stated: “... Article 119 of the EEC Treaty is infringed by a department store company which excludes part-time employees from its occupational pension scheme, where that exclusion affects a far greater number of women than men, unless the undertaking shows that the exclusion is based on objectively justified factors unrelated to any discrimination on grounds of sex.” 88. In Regina v. Secretary of State for Employment, ex parte Nicole Seymour-Smith and Laura Perez (judgment of 9 February 1999, Case C ‑ 167/97, points 51, 57, 62, 65 and 77), the CJEC observed: “... the national court seeks to ascertain the legal test for establishing whether a measure adopted by a Member State has disparate effect as between men and women to such a degree as to amount to indirect discrimination. ... ... ... the Commission proposes a ‘ statistically significant ’ test, whereby statistics must form an adequate basis of comparison and the national court must ensure that they are not distorted by factors specific to the case. The existence of statistically significant evidence is enough to establish disproportionate impact and pass the onus to the author of the allegedly discriminatory measure. ... It is also for the national court to assess whether the statistics concerning the situation ... are valid and can be taken into account, that is to say, whether they cover enough individuals, whether they illustrate purely fortuitous or short-term phenomena, and whether, in general, they appear to be significant (see Case C-127/92 Enderby [1993] ECR I-5535, paragraph 17). ... ... Accordingly, ... in order to establish whether a measure adopted by a Member State has disparate effect as between men and women to such a degree as to amount to indirect discrimination for the purposes of Article 119 of the Treaty, the national court must verify whether the statistics available indicate that a considerably smaller percentage of women than men is able to fulfil the requirement imposed by that measure. If that is the case, there is indirect sex discrimination, unless that measure is justified by objective factors unrelated to any discrimination based on sex. ... ... if a considerably smaller percentage of women than men is capable of fulfilling the requirement ... imposed by the disputed rule, it is for the Member State, as the author of the allegedly discriminatory rule, to show that the said rule reflects a legitimate aim of its social policy, that that aim is unrelated to any discrimination based on sex, and that it could reasonably consider that the means chosen were suitable for attaining that aim.” 89. In its judgment of 23 October 2003 in Hilde Schönheit v. Stadt Frankfurt am Main (Case C-4/02) and Silvia Becker v. Land Hessen (Case C-5/02), the CJEC noted at points 67-69 and 71: “... it must be borne in mind that Article 119 of the Treaty and Article 141(1) and (2) EC set out the principle that men and women should receive equal pay for equal work. That principle precludes not only the application of provisions leading to direct sex discrimination, but also the application of provisions which maintain different treatment between men and women at work as a result of the application of criteria not based on sex where those differences of treatment are not attributable to objective factors unrelated to sex discrimination ... It is common ground that the provisions of the BeamtVG at issue do not entail discrimination directly based on sex. It is therefore necessary to ascertain whether they can amount to indirect discrimination ... To establish whether there is indirect discrimination, it is necessary to ascertain whether the provisions at issue have a more unfavourable impact on women than on men ... ... Therefore it is necessary to determine whether the statistics available indicate that a considerably higher percentage of women than men is affected by the provisions of the BeamtVG entailing a reduction in the pensions of civil servants who have worked part-time for at least a part of their career. Such a situation would be evidence of apparent discrimination on grounds of sex unless the provisions at issue were justified by objective factors unrelated to any discrimination based on sex.” 90. In Debra Allonby v. Accrington & Rossendale College, Education Lecturing Services ... and Secretary of State for Education and Employment (judgment of 13 January 2004, Case C-256/01), it stated (point 81): “... it must be held that a woman may rely on statistics to show that a clause in State legislation is contrary to Article 141(1) EC because it discriminates against female workers. ...” 91. Lastly, in Commission of the European Communities v. Republic of Austria (judgment of 7 July 2005, Case C-147/03), the CJEC observed (points 41 and 46-48): “According to settled case-law, the principle of equal treatment prohibits not only overt discrimination based on nationality but also all covert forms of discrimination which, by applying other distinguishing criteria, lead in fact to the same result (see, in particular, Case 152/73 Sotgiu [1974] ECR 153, paragraph 11; Case C-65/03 Commission v. Belgium, cited above, paragraph 28; and Case C-209/03 Bidar [2005] ECR [I-02119], paragraph 51). ... ... the legislation in question places holders of secondary education diplomas awarded in a Member State other than the Republic of Austria at a disadvantage, since they cannot gain access to Austrian higher education under the same conditions as holders of the equivalent Austrian diploma. Thus, although paragraph ... applies without distinction to all students, it is liable to have a greater effect on nationals of other Member States than on Austrian nationals, and therefore the difference in treatment introduced by that provision results in indirect discrimination. Consequently, the differential treatment in question could be justified only if it were based on objective considerations independent of the nationality of the persons concerned and were proportionate to the legitimate aim of the national provisions (Case C-274/96 Bickel and Franz [1998] ECR I-7637, paragraph 27, and D ’ Hoop, cited above, paragraph 36).” V. RELEVANT UNITED NATIONS MATERIALS A. International Covenant on Civil and Political Rights 92. Article 26 of the Covenant provides: “ All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status .” B. United Nations Human Rights Committee 93. In points 7 and 12 of its General Comment No. 18 of 10 November 1989 on non- discrimination, the Committee expressed the following opinion: “... the Committee believes that the term ‘ discrimination ’ as used in the Covenant should be understood to imply any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms. ... ... when legislation is adopted by a State party, it must comply with the requirement of Article 26 that its content should not be discriminatory .. .” 94. In point 11.7 of its Views dated 31 July 1995 on Communication no. 516/1992 concerning the Czech Republic, the Committee noted: “ ... The Committee is of the view, however, that the intent of the legislature is not alone dispositive in determining a breach of Article 26 of the Covenant. A politically motivated differentiation is unlikely to be compatible with Article 26. But an act which is not politically motivated may still contravene Article 26 if its effects are discriminatory.” C. International Convention on the Elimination of All Forms of Racial Discrimination 95. Article 1 of this Convention provides: “ ... the term ‘ racial discrimination ’ shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life. ... ” D. Committee on the Elimination of Racial Discrimination 96. In its General Recommendation No. 14 of 22 March 1993 on the definition of discrimination, the Committee noted, inter alia : “ 1. ... A distinction is contrary to the Convention if it has either the purpose or the effect of impairing particular rights and freedoms. This is confirmed by the obligation placed upon States Parties by Article 2, paragraph 1 (c), to nullify any law or practice which has the effect of creating or perpetuating racial discrimination. 2. ... In seeking to determine whether an action has an effect contrary to the Convention, [the Committee] will look to see whether that action has an unjustifiable disparate impact upon a group distinguished by race, colour, descent, or national or ethnic origin. ... ” 97. In its General Recommendation No. 19 of 18 August 1995 on racial segregation and apartheid, the Committee observed: “ 3. ... while conditions of complete or partial racial segregation may in some countries have been created by governmental policies, a condition of partial segregation may also arise as an unintended by-product of the actions of private persons. In many cities residential patterns are influenced by group differences in income, which are sometimes combined with differences of race, colour, descent and national or ethnic origin, so that inhabitants can be stigmatized and individuals suffer a form of discrimination in which racial grounds are mixed with other grounds. 4. The Committee therefore affirms that a condition of racial segregation can also arise without any initiative or direct involvement by the public authorities. ...” 98. In its General Recommendation No. 27 of 16 August 2000 on discrimination against Roma, the Committee made, inter alia, the following recommendation in the education sphere: “17. To support the inclusion in the school system of all children of Roma origin and to act to reduce drop-out rates, in particular among Roma girls, and, for these purposes, to cooperate actively with Roma parents, associations and local communities. 18. To prevent and avoid as much as possible the segregation of Roma students, while keeping open the possibility for bilingual or mother-tongue tuition; to this end, to endeavour to raise the quality of education in all schools and the level of achievement in schools by the minority community, to recruit school personnel from among members of Roma communities and to promote intercultural education. 19. To consider adopting measures in favour of Roma children, in cooperation with their parents, in the field of education.” 99. In its concluding observations of 30 March 1998 following its examination of the report submitted by the Czech Republic, the Committee noted, inter alia : “13. The marginalization of the Roma community in the field of education is noted with concern. Evidence that a disproportionately large number of Roma children are placed in special schools, leading to de facto racial segregation, and that they also have a considerably lower level of participation in secondary and higher education, raises doubts about whether Article 5 of the Convention is being fully implemented.” E. Convention on the Rights of the Child 100. Articles 28 and 30 of this Convention provide: Article 28 “1. States Parties recognize the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity, they shall, in particular: (a) Make primary education compulsory and available free to all; (b) Encourage the development of different forms of secondary education, including general and vocational education, make them available and accessible to every child, and take appropriate measures such as the introduction of free education and offering financial assistance in case of need; (c) Make higher education accessible to all on the basis of capacity by every appropriate means; (d) Make educational and vocational information and guidance available and accessible to all children; (e) Take measures to encourage regular attendance at schools and the reduction of drop-out rates. 2. States Parties shall take all appropriate measures to ensure that school discipline is administered in a manner consistent with the child ’ s human dignity and in conformity with the present Convention. 3. States Parties shall promote and encourage international cooperation in matters relating to education, in particular with a view to contributing to the elimination of ignorance and illiteracy throughout the world and facilitating access to scientific and technical knowledge and modern teaching methods. In this regard, particular account shall be taken of the needs of developing countries.” Article 30 “In those States in which ethnic, religious or linguistic minorities or persons of indigenous origin exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion, or to use his or her own language.” F. Unesco 101. Articles 1 to 3 of the Convention against Discrimination in Education of 14 December 1960 provide: Article 1 “1. For the purposes of this Convention, the term ‘ discrimination ’ includes any distinction, exclusion, limitation or preference which, being based on race, colour, sex, language, religion, political or other opinion, national or social origin, economic condition or birth, has the purpose or effect of nullifying or impairing equality of treatment in education and in particular: (a) Of depriving any person or group of persons of access to education of any type or at any level; (b) Of limiting any person or group of persons to education of an inferior standard; (c) Subject to the provisions of Article 2 of this Convention, of establishing or maintaining separate educational systems or institutions for persons or groups of persons; or (d) Of inflicting on any person or group of persons conditions which are incompatible with the dignity of man. ...” Article 2 “ When permitted in a State, the following situations shall not be deemed to constitute discrimination, within the meaning of Article [1] of this Convention: (a) The establishment or maintenance of separate educational systems or institutions for pupils of the two sexes, if these systems or institutions offer equivalent access to education, provide a teaching staff with qualifications of the same standard as well as school premises and equipment of the same quality, and afford the opportunity to take the same or equivalent courses of study; (b) The establishment or maintenance, for religious or linguistic reasons, of separate educational systems or institutions offering an education which is in keeping with the wishes of the pupil ’ s parents or legal guardians, if participation in such systems or attendance at such institutions is optional and if the education provided conforms to such standards as may be laid down or approved by the competent authorities, in particular for education of the same level; (c) The establishment or maintenance of private educational institutions, if the object of the institutions is not to secure the exclusion of any group but to provide educational facilities in addition to those provided by the public authorities, if the institutions are conducted in accordance with that object, and if the education provided conforms with such standards as may be laid down or approved by the competent authorities, in particular for education of the same level.” Article 3 “In order to eliminate and prevent discrimination within the meaning of this Convention, the States Parties thereto undertake: (a) To abrogate any statutory provisions and any administrative instructions and to discontinue any administrative practices which involve discrimination in education; (b) To ensure, by legislation where necessary, that there is no discrimination in the admission of pupils to educational institutions; ...” 102. The Declaration on Race and Racial Prejudice adopted by the Unesco General Conference on 27 November 1978 proclaims as follows: Article 1 “1. All human beings belong to a single species and are descended from a common stock. They are born equal in dignity and rights and all form an integral part of humanity. 2. All individuals and groups have the right to be different, to consider themselves as different and to be regarded as such. However, the diversity of life styles and the right to be different may not, in any circumstances, serve as a pretext for racial prejudice; they may not justify either in law or in fact any discriminatory practice whatsoever, nor provide a ground for the policy of apartheid, which is the extreme form of racism. ... ” Article 2 “ ... 2. Racism includes racist ideologies, prejudiced attitudes, discriminatory behaviour, structural arrangements and institutionalized practices resulting in racial inequality as well as the fallacious notion that discriminatory relations between groups are morally and scientifically justifiable; it is reflected in discriminatory provisions in legislation or regulations and discriminatory practices as well as in anti-social beliefs and acts; it hinders the development of its victims, perverts those who practise it, divides nations internally, impedes international cooperation and gives rise to political tensions between peoples; it is contrary to the fundamental principles of international law and, consequently, seriously disturbs international peace and security. 3. Racial prejudice, historically linked with inequalities in power, reinforced by economic and social differences between individuals and groups, and still seeking today to justify such inequalities, is totally without justification.” Article 3 “ Any distinction, exclusion, restriction or preference based on race, colour, ethnic or national origin or religious intolerance motivated by racist considerations, which destroys or compromises the sovereign equality of States and the right of peoples to self-determination, or which limits in an arbitrary or discriminatory manner the right of every human being and group to full development is incompatible with the requirements of an international order which is just and guarantees respect for human rights; the right to full development implies equal access to the means of personal and collective advancement and fulfilment in a climate of respect for the values of civilizations and cultures, both national and world-wide.” Article 5 “1. Culture, as a product of all human beings and a common heritage of mankind, and education in its broadest sense, offer men and women increasingly effective means of adaptation, enabling them not only to affirm that they are born equal in dignity and rights, but also to recognize that they should respect the right of all groups to their own cultural identity and the development of their distinctive cultural life within the national and international contexts, it being understood that it rests with each group to decide in complete freedom on the maintenance, and, if appropriate, the adaptation or enrichment of the values which it regards as essential to its identity. 2. States, in accordance with their constitutional principles and procedures, as well as all other competent authorities and the entire teaching profession, have a responsibility to see that the educational resources of all countries are used to combat racism, more especially by ensuring that curricula and textbooks include scientific and ethical considerations concerning human unity and diversity and that no invidious distinctions are made with regard to any people; by training teachers to achieve these ends; by making the resources of the educational system available to all groups of the population without racial restriction or discrimination; and by taking appropriate steps to remedy the handicaps from which certain racial or ethnic groups suffer with regard to their level of education and standard of living and in particular to prevent such handicaps from being passed on to children. ... ” Article 6 “ 1. The State has prime responsibility for ensuring human rights and fundamental freedoms on an entirely equal footing in dignity and rights for all individuals and all groups. 2. So far as its competence extends and in accordance with its constitutional principles and procedures, the State should take all appropriate steps, inter alia by legislation, particularly in the spheres of education, culture and communication, to prevent, prohibit and eradicate racism racist propaganda, racial segregation and apartheid and to encourage the dissemination of knowledge and the findings of appropriate research in natural and social sciences on the causes and prevention of racial prejudice and racist attitudes with due regard to the principles embodied in the Universal Declaration of Human Rights and in the International Covenant on Civil and Political Rights. 3. Since laws proscribing racial discrimination are not in themselves sufficient, it is also incumbent on States to supplement them by administrative machinery for the systematic investigation of instances of racial discrimination, by a comprehensive framework of legal remedies against acts of racial discrimination, by broadly based education and research programmes designed to combat racial prejudice and racial discrimination and by programmes of positive political, social, educational and cultural measures calculated to promote genuine mutual respect among groups. Where circumstances warrant, special programmes should be undertaken to promote the advancement of disadvantaged groups and, in the case of nationals, to ensure their effective participation in the decision-making processes of the community.” Article 9 “1. The principle of the equality in dignity and rights of all human beings and all peoples, irrespective of race, colour and origin, is a generally accepted and recognized principle of international law. Consequently any form of racial discrimination practised by a State constitutes a violation of international law giving rise to its international responsibility. 2. Special measures must be taken to ensure equality in dignity and rights for individuals and groups wherever necessary, while ensuring that they are not such as to appear racially discriminatory. In this respect, particular attention should be paid to racial or ethnic groups which are socially or economically disadvantaged, so as to afford them, on a completely equal footing and without discrimination or restriction, the protection of the laws and regulations and the advantages of the social measures in force, in particular in regard to housing, employment and health; to respect the authenticity of their culture and values; and to facilitate their social and occupational advancement, especially through education. ... ” THE LAW I. SCOPE OF THE GRAND CHAMBER ’ S JURISDICTION 108. In their final observations, which were lodged with the Grand Chamber on 26 September 2006, the applicants repeated their contention that there had been a violation of their rights under Article 3 and Article 6 § 1 of the Convention. 109. Under the Court ’ s case-law, the “case” referred to the Grand Chamber is the application as it has been declared admissible (see, among other authorities, Leyla Şahin v. Turkey [GC], no. 44774/98, § 128, ECHR 2005-XI, and Üner v. the Netherlands [GC], no. 46410/99, § 41, ECHR 2006 ‑ XII ). The Grand Chamber notes that in its partial decision of 1 March 2005 the Chamber declared inadmissible all the applicants ’ complaints that did not relate to Article 14 of the Convention taken in conjunction with Article 2 of Protocol No. 1, including those under Articles 3 and 6 § 1 of the Convention. Accordingly, the latter complaints – assuming the applicants still wish to rely on them – are not within the scope of the case before the Grand Chamber. II. THE GOVERNMENT ’ S PRELIMINARY OBJECTION 110. The Court notes that in its decision on the admissibility of the application the preliminary objection made by the Government in their observations of 15 March 2004 of a failure to exhaust domestic remedies was joined to the merits of the complaint under Article 14 of the Convention taken in conjunction with Article 2 of Protocol No. 1. In its judgment of 7 February 200 6 (§ 31), the Chamber found that the parties ’ submissions on the issue of the exhaustion of domestic remedies raised questions that were closely linked to the merits of the case. It agreed with the Czech Constitutional Court that the application raised points of considerable importance and that vital interests were at stake. Accordingly, and in view of its finding that for other reasons pertaining to the merits there had been no violation, the Chamber did not consider it necessary to examine whether the applicants had satisfied that requirement in the present case. 111. It will be recalled that where a case is referred to it, the Grand Chamber may also examine issues relating to the admissibility of the application, for example where they have been joined to the merits or are otherwise relevant at the merits stage ( see K. and T. v. Finland [GC], no. 25702/94, § 141, ECHR 2001-VII). 112. In these circumstances, the Grand Chamber considers it necessary to determine whether the applicants have in the instant case satisfied the exhaustion of domestic remedies requirement. 113. The Government argued that the applicants had not used all available means to remedy their position. None of them had exercised their right to appeal against the decisions to place them in special schools. Six had failed to lodge a constitutional appeal. Further, of those applicants who had appealed to the Constitutional Court only five had actually contested the decisions to place them in special schools. No attempt had been made by the applicants to defend their dignity by bringing an action under the Civil Code to protect their personality rights and their parents had not referred the matter to the Schools Inspectorate or the Ministry of Education. 114. The applicants submitted, firstly, that there were no remedies available in the Czech Republic that were effective and adequate to deal with complaints of racial discrimination in the education sphere. More specifically, the right to lodge a constitutional appeal had been rendered ineffective by the reasoning followed by the Constitutional Court in the instant case and its refusal to attach any significance to the general practice that had been referred to by the applicants. In the applicants ’ submission, no criticism could therefore be made of those applicants who had chosen not to lodge such an appeal. As to why they had not lodged an administrative appeal, the applicants said that their parents had only gained access to the requisite information after the time allowed for lodging such an appeal had expired. Even the Constitutional Court had disregarded that omission. Finally, an action to protect personality rights could not be regarded as a means of challenging enforceable administrative decisions and the Government had not provided any evidence that such a remedy was effective. Further, even supposing that an effective remedy existed, the applicants submitted that it did not have to be exercised in cases in which an administrative practice, such as the system of special schools in the Czech Republic, made racism possible or encouraged it. They also drew the Court ’ s attention to the racial hatred and numerous acts of violence directed at Roma in the Czech Republic and to the unsatisfactory nature of the penalties imposed for racist and xenophobic criminal offences. 115. The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention is based on the assumption that the domestic system provides an effective remedy in respect of the alleged breach. It is for the Government claiming non-exhaustion to satisfy the Court that an effective remedy was available in theory and in practice at the relevant time; that is to say, that the remedy was accessible, capable of providing redress in respect of the applicant ’ s complaints and offered reasonable prospects of success ( see V. v. the United Kingdom [GC], no. 24888/94, § 57, ECHR 1999-IX). 116. The application of the rule of exhaustion of domestic remedies must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting States have agreed to set up. The Court has accordingly recognised that Article 35 § 1 must be applied with some degree of flexibility and without excessive formalism. It has further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically; for the purposes of reviewing whether it has been observed, it is essential to have regard to the circumstances of the individual case. This means, in particular, that the Court must take realistic account not only of the existence of formal remedies in the legal system of the Contracting State concerned but also of the general context in which they operate, as well as the personal circumstances of the applicant. It must then examine whether, in all the circumstances of the case, the applicant did everything that could reasonably be expected of him or her to exhaust domestic remedies ( see İlhan v. Turkey [GC], no. 22277/93, § 59, ECHR 2000 ‑ VII). 117. In the present case, the Government complained, firstly, that none of the applicants had sought to appeal against the decision ordering their placement in a special school or brought an action to protect their personality rights. 118. In this connection, the Court, like the applicants, notes that the Czech Constitutional Court decided to disregard that omission (see paragraph 28 above ). In these circumstances, it considers that it would be unduly formalistic to require the applicants to exercise a remedy which even the highest court of the country concerned had not obliged them to use. 119. Secondly, the Government stated that of the twelve applicants who had lodged a constitutional appeal, only five had actually contested the decisions to place them in special schools, so enabling the Constitutional Court to hear their cases. 120. The Court notes that by virtue of the fact that the five applicants concerned had brought a constitutional appeal in due form, the Constitutional Court was given an opportunity to rule on all the complaints which the applicants have now referred to the Court. The Constitutional Court also found that the scope of the appeals went beyond the applicants ’ own personal interests so that, in that sense, its decision was of more general application. 121. Further, it can be seen from its decision of 20 October 1999 that the Constitutional Court confined itself to verifying the competent authorities ’ interpretation and application of the relevant statutory provisions without considering their impact, which the applicants argued was discriminatory. As regards the complaint of racial discrimination, it also stated that it was not its role to assess the overall social context. 122. In these circumstances, there is nothing to suggest that the Constitutional Court ’ s decision would have been different had it been called upon to decide the cases of the thirteen applicants who did not lodge a constitutional appeal or challenge the decision of the head teacher of the special school. In the light of these considerations, the Court is not satisfied that, in the special circumstances of the present case, this remedy was apt to afford the applicants redress for their complaints or offered reasonable prospects of success. 123. Consequently, the Government ’ s preliminary objection in this case must be rejected. III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 2 OF PROTOCOL No. 1 124. The applicants maintained that they had been discriminated against in that because of their race or ethnic origin they had been treated less favourably than other children in a comparable situation without any objective and reasonable justification. They relied in that connection on Article 14 of the Convention taken in conjunction with Article 2 of Protocol No. 1, which provide as follows: Article 14 of the Convention “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” Article 2 of Protocol No. 1 “No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.” A. The Chamber judgment 125. The Chamber held that there had been no violation of Article 14 of the Convention taken in conjunction with Article 2 of Protocol No 1. In its view, the Government had succeeded in establishing that the system of special schools in the Czech Republic had not been introduced solely to cater for Roma children and that considerable efforts had been made in those schools to help certain categories of pupils to acquire a basic education. In that connection, it observed that the rules governing children ’ s placement in special schools did not refer to the pupils ’ ethnic origin, but pursued the legitimate aim of adapting the education system to the needs, aptitudes and disabilities of the children. 126. The Chamber noted in particular that the applicants had not succeeded in refuting the experts ’ findings that their learning difficulties were such as to prevent them from following the ordinary primary- school curriculum. It was further noted that the applicants ’ parents had failed to take any action or had even requested their children ’ s placement or continued placement in a special school themselves. 127. The Chamber accepted in its judgment that it was not easy to choose an education system that reconciled the various competing interests and that there did not appear to be an ideal solution. However, while acknowledging that the statistical evidence disclosed worrying figures and that the general situation in the Czech Republic concerning the education of Roma children was by no means perfect, it considered that the concrete evidence before it did not enable it to conclude that the applicants ’ placement or, in some instances, continued placement in special schools was the result of racial prejudice. B. The parties ’ submissions 1. The applicants 128. The applicants submitted that the restrictive interpretation the Chamber had given to the notion of discrimination was incompatible not only with the aim of the Convention but also with the case-law of the Court and of other jurisdictions in Europe and beyond. 129. They firstly asked the Grand Chamber to correct the obscure and contradictory test the Chamber had used for deciding whether there had been discrimination. They noted that, while reaffirming the established principle that if a policy or general measure had disproportionately prejudicial effects on a group of people, the possibility of its being considered discriminatory could not be ruled out even if it was not specifically aimed or directed at that group. The Chamber had nevertheless departed from the Court ’ s previous case-law ( see Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000-IV; Hoogendijk v. the Netherlands (dec.), no. 58 6 41/00, 6 January 2005; and Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 157, ECHR 2005-VII ) by erroneously requiring the applicants to prove discriminatory intent on the part of the Czech authorities. In the applicants ’ submission, such a requirement was unrealistic and illogical as the question whether or not special schools were designed to segregate along ethnic lines was irrelevant since that was indisputably the effect they had in practice. The reality was that well-intentioned actors often engaged in discriminatory practices through ignorance, neglect or inertia. 130. The applicants observed in particular that in explaining why it had refused to shift the burden of proof in Nachova and Others ( cited above, § 157) the Court had been careful to distinguish between racially-motivated violent crime and non-violent acts of racial discrimination in, for example, employment or the provision of services. In their submission, racial discrimination in access to education fell precisely in the latter category of discriminatory acts which could be proved in the absence of intent. More recently, the Court had ruled in Zarb Adami v. Malta (no. 17209/02, §§ 75 ‑ 76, ECHR 2006- VIII ) that a difference in treatment did not need to be set forth in legislative text in order to breach Article 14 and that a “well-established practice” or “ de facto situation” could also give rise to discrimination. As, in the instant case, the applicants considered that they had indisputably succeeded in establishing the existence of a disproportionate impact, the burden of proof had to shift to the Government to prove that the applicants ’ ethnic origin had had no bearing on the impugned decisions and that sufficient safeguards against discrimination were in place. 131. In that connection, the applicants noted that in its General Policy Recommendation No. 7, ECRI had invited the States to prohibit both direct discrimination and indirect discrimination, with neither concept requiring proof of discriminatory intent. A clear majority of the member States of the Council of Europe had already expressly prohibited discrimination in sections of their national legislation without requiring proof of such intent and this was reflected in the judicial practice of those States. The applicants referred in this context to, inter alia, the decision of the House of Lords in the case of Regina v. Immigration Officer at Prague Airport and another ex parte European Roma Rights Centre and others (see paragraph 105 above) and to the jurisprudence of the Court of Justice of the European Communities. Lastly, they noted that indirect discrimination was also prohibited under international law, including the International Covenant on Civil and Political Rights and the Convention on the Elimination of Racial Discrimination. 132. Accordingly, in view of the vital importance of Article 14 protection and the need to make it effective, the applicants considered that it would be helpful for the Court to clarify the rules it applied in such situations to ensure, inter alia, that the principle of non-discrimination was interpreted and applied consistently by the two European courts. For this reason, the applicants asked the Grand Chamber to give a clear ruling that intent was not necessary to prove discrimination under Article 14, except in cases – such as of racially motivated violence – where it was already an element of the underlying offence. 133. In the instant case, the applicants did not claim that the competent authorities had at the relevant time harboured invidiously racist attitudes towards Roma, or that they had intended to discriminate against Roma, or even that they had failed to take positive measures. All the applicants needed to prove – and, in their submission, had proved – was that the authorities had subjected the applicants to differential adverse treatment in comparison with similarly situated non-Roma, without objective and reasonable justification. The question of a common European standard that had been raised by the Government was, in the applicants ’ view, more of a political issue and the existence or otherwise of such a standard was of no relevance as the principle of equality of treatment was a binding rule of international law. 134. Similarly, the applicants asked the Grand Chamber to provide guidance concerning the kinds of proof, including but not limited to statistical evidence, which might be relevant to a claim of a violation of Article 14. They noted that the Chamber had discounted the overwhelming statistical evidence they had adduced, without checking whether or not it was accurate, despite the fact that it had been corroborated by independent specialised intergovernmental bodies (ECRI, the Committee on the Elimination of Racial Discrimination, and the Advisory Committee on the Framework Convention for the Protection of National Minorities ) and by the government ’ s own admission (see paragraphs 41 and 66 above). According to this data, although Roma represented only 5% of all primary- school pupils at the time the application was lodged, they made up more than 50% of the population of special schools. Whereas fewer than 2% of non-Roma pupils in Ostrava were assigned to special schools, over 50% of Roma children were sent to such schools. Overall, a Roma child was more than twenty-seven times more likely than a similarly situated non-Roma child to be assigned to a special school. 135. In the applicants ’ view, these figures strongly suggested that, whether through conscious design or reprehensible neglect, race or ethnicity had infected the process of school assignment to a substantial – perhaps determining – extent. The presumption that they, like other Roma children in the city of Ostrava, had been the victims of discrimination on the grounds of ethnic origin had never been rebutted. It was undisputed that as a result of their assignment to special schools the applicants had received a substantially inferior education as compared with non-Roma children and that this had effectively deprived them of the opportunity to pursue a secondary education other than in a vocational training centre. 136. In this context, they argued that both in Europe and beyond statistical data was often used in cases which, as here, concerned discriminatory effect, as sometimes it was the only means of proving indirect discrimination. Statistical data was accepted as a means of proof of discrimination by the bodies responsible for supervising the United Nations treaties and by the Court of Justice of the European Communities. Council Directive 2000/43/EC expressly provided that indirect discrimination could be established by any means “including on the basis of statistical evidence”. 137. With respect to the Convention institutions, the applicants noted that, in finding racial discrimination in East African Asians v. the United Kingdom (nos. 4403/70-4530/70, Commission ’ s report of 14 December 1973, Decisions and Reports 78-A, p. 5), the Commission took into account the surrounding circumstances including statistical data on the disproportionate effect the legislation had had on British citizens of Asian origin. Recently, the Court had indicated in its decision in Hoogendijk (cited above) that, while statistics alone were not sufficient to prove discrimination, they could – particularly where they were undisputed – amount to prima facie evidence requiring the Government to provide an objective explanation of the differential treatment. Further, in its judgment in Zarb Adami ( cited above ), the Court had relied, inter alia, on statistical evidence of disproportionate effect. 138. The applicants added that it would be helpful for the Grand Chamber to clarify the Court ’ s case-law by determining whether there was an objective and reasonable justification for the purposes of Article 14 for the difference in treatment in the present case and specifying the conclusions that should be drawn in the absence of a satisfactory explanation. Referring to, inter alia, the judgments in Timishev v. Russia (nos. 55762/00 and 55974/00, § 56, ECHR 2005 ‑ XII ) and Moldovan and Others v. Romania (no. 2) (nos. 41138/98 and 64320/01, § 140, 12 July 2005 ), they stated that where an applicant had established a difference in treatment the onus was on the respondent State to prove that it was justified. In the absence of a racially neutral explanation, it was legitimate to conclude that the difference in treatment was based on racial grounds. In the applicants ’ submission, neither an inadequate command of the Czech language, nor poverty nor a different socio-economic status could constitute an objective and reasonable justification in their case. They denied that the disproportionately large number of Roma children in special schools could be explained by the results of intellectual capacity tests or justified by parental consent (see also paragraphs 1 41 - 42 below). 139. In view of the importance of the fight against racial and ethnic discrimination that had constantly been reaffirmed by the Strasbourg institutions, the applicants considered that the Grand Chamber should state in clear terms that the States ’ “margin of appreciation” could not serve to justify segregation in education. The approach adopted by the Chamber, which left an unlimited margin of appreciation to the Czech State, was unjustified in view of the serious allegations of racial and ethnic discrimination in the instant case and was inconsistent with the Court ’ s case-law. The present case warranted all the more the Court ’ s attention in that it concerned one of the most important substantive rights, namely the right to education. 140. The applicants further argued that the Chamber had misinterpreted crucial evidence and drawn inappropriate conclusions on two decisive issues, namely parental consent and the reliability of the psychological tests. 141. There were no uniform rules at the material time governing the manner in which the tests used by the educational psychology centres were administered and the results interpreted, so that much had been left to the discretion of the psychologists and there had been considerable scope for racial prejudice and cultural insensitivity. Further, the tests which they and other Roma children had been forced to sit were scientifically flawed and educationally unsound. The documentary evidence showed that a number of the applicants had been placed in special schools for reasons other than intellectual deficiencies (such as absenteeism, bad behaviour, and even misconduct on the part of the parents). The Czech Government had themselves acknowledged the discriminatory effect of the tests (see paragraph 6 6 above). They had also admitted in their observations on the present case that one of the applicants had been placed in a special school despite possessing good verbal communication skills. 142. Nor, in the applicants ’ submission, could the discriminatory treatment to which they had been subjected be justified by their parents ’ consent to their placement in the special schools. Governments were legally bound to protect the higher interest of the child and in particular the equal right of all children to education. Neither parental conduct nor parental choice could deprive them of that right. The credibility of the “consent” allegedly given by the parents of several of the applicants had been called into question by inconsistencies in the school records that raised doubts as to whether they had indeed agreed. In any event, even supposing that consent had been given by all the parents, it had no legal value as the parents concerned had never been properly informed of their right to withhold their consent, of alternatives to placement in a special school or of the risks and consequences of such a placement. The procedure was largely formal: the parents were given a pre-completed form and the results of the psychological tests, results they believed they had no right to contest. As to the alleged right subsequently to request a transfer to an ordinary school, the applicants pointed out that from their very first year at school they had received a substantially inferior education that made it impossible for them subsequently to meet the requirements of the ordinary schools. Moreover, it was unrealistic to consider the issue of consent without taking into account the history of Roma segregation in education and the absence of adequate information on the choices available to Roma parents. Referring to the view that had been expressed by the Court (see Håkansson and Sturesson v. Sweden, 21 February 1990, § 66, Series A no. 171-A) that a waiver may be lawful for certain rights but not for others and that it must not run counter to any important public interest, the applicants submitted that there could be no waiver of the child ’ s right not to be racially discriminated against in education. 143. The instant case raised “a serious issue of general importance”, namely whether European governments were capable of coping with increasing racial and ethnic diversity and of protecting vulnerable minorities. In that connection, the most important issue was that of equality of opportunity in education as discrimination against Roma in that sphere persisted in all the member States of the Council of Europe. Putting an end to discrimination at school would enable Roma to enjoy equality of treatment generally. 144. The racial segregation of Roma children in Czech schools had not materially changed since the date the application was filed. The applicants ’ own futures and lack of prospects revealed the harm that their discriminatory placement in special schools had caused. Thus, in May 2006 eight of the applicants were continuing their education in a special school while a further six who had completed special school found themselves unemployed. Of the four applicants who had been allowed to attend ordinary primary school after passing the aptitude tests, two were still at school, one was unemployed and the fourth was enrolled in a vocational secondary school. The applicants considered that it was already clear that none of them would receive a general secondary- school education, still less a university education. 145. Finally, the applicants pointed out that a new Schools Act had been passed in late 2004, which had purported to end the special- school system. The new legislation thus acknowledged that the very existence of schools deemed “special” imposed a badge of inferiority on those placed there. In reality, however, the new law had not brought about changes in practice as it had merely altered the criteria on which educational programmes were based. Extensive research carried out by the European Roma Rights Centre in 2005 and 2006 showed that in many cases special schools had simply been renamed “remedial schools” or “practical schools” without any substantial change in the composition of their teaching staff or the content of their curriculum. 2. The Government 146. The Government stated that the case raised complex issues concerning the social problem of the position of Roma in contemporary society. Although the Roma ostensibly enjoyed the same rights as other citizens, in reality their prospects were limited by both objective and subjective factors. There could be no improvement in their situation without the involvement and commitment of all members of the Roma community. When they attempted to eliminate these inequalities, member States were confronted with numerous political, social, economic and technical problems which could not be confined to the question of respect for fundamental rights. It was for this reason that the courts, including the European Court of Human Rights, had to exercise a degree of restraint when examining measures adopted in this field and confine themselves to deciding whether or not the competent authorities had overstepped their margin of appreciation. 147. Referring to their previous written and oral observations, the Government reiterated that race, colour or association with a national minority had not played a determining role in the applicants ’ education. There was no specific evidence of any difference in treatment of the applicants on the basis of those grounds. The applicants ’ school files showed beyond doubt that their placement in special schools was not based on their ethnic origin, but on the results of psychological tests carried out at the educational psychology centres. Since the applicants had been placed in special schools on account of their specific educational needs resulting essentially from their intellectual capacity and since the criteria, the process by which the criteria were applied and the system of special schools were all racially neutral, as the Chamber had confirmed in its judgment, it was not possible to speak of overt or direct discrimination in the instant case. 148. The Government next turned to the applicants ’ argument that the instant case was one of indirect discrimination which, in some instances, could only be established with the aid of statistics. They contended that the case of Zarb Adami (cited above), in which the Court had relied extensively on statistical evidence submitted by the parties, was not comparable to the instant case. Firstly, Zarb Adami was far less complex. Secondly, the statistical disparities found in that case between the number of men and women called to perform jury service were the result of a decision by the State, whereas the statistics relied on by the applicants in the instant case reflected first and foremost the parents ’ wishes for their children to attend special school, not any act or omission on the part of the State. Had the parents not expressed such a wish ( by giving their consent) the children would not have been placed in a special school. Further, the statistical information that had been submitted in the instant case by the applicants was not sufficiently conclusive as the data had been furnished by the head teachers of the schools and therefore only reflected their subjective opinions. There was no official information on the ethnic origin of the pupils. The Government further considered that the statistics had no informative value without an evaluation of the socio-cultural background of the Roma, their family situation and their attitude towards education. They pointed out in that connection that the Ostrava region had one of the largest Roma populations in the Czech Republic. As to the comparative studies on countries from central and eastern Europe and beyond cited in the observations of the third-party interveners, the Government did not consider that there was any relevant link between those statistics and the substantive issues in the case to hand. In their submission, those studies tended to confirm that creating an education system optimised for Roma children was an extremely complex task. 149. Nevertheless, even assuming that the data submitted by the applicants were reliable and that the State could be considered responsible for the situation, that did not, in the Government ’ s submission, amount to indirect discrimination that was incompatible with the Convention. The impugned measure was consistent with the principle of non-discrimination as it pursued a legitimate aim, namely the adaptation of the education process to the capacity of children with specific educational needs. It was also objectively and reasonably justified. 150. On this latter point, the Government contested the applicants ’ claim that they had not submitted any satisfactory explanation regarding the large number of Roma in special schools. While admitting that the situation of the Roma with regard to education was not ideal, the Government considered that they had demonstrated that the special schools had not been established for the Roma community and that ethnic origin had not been a criterion for deciding on placements in special schools. They reiterated that special-school placements were only possible after prior individualised pedagogical and psychological testing. The testing process was a technical tool that was the subject of continuing scientific research and for that reason could only be carried out by qualified personnel. The courts did not possess the necessary qualifications and therefore had to exercise a degree of restraint in this field. As regards the professional standards referred to in the observations of the International Step by Step Association and others, the Government emphasised that these were not legal norms possessing force of law but, at most, non-binding recommendations or indications by specialists and that the failure to apply them could not, by definition, entail international legal responsibility. 151. The files of each of the applicants contained full details of the methods that had been used and the results of the testing. These had not been challenged at the time by any of the applicants. The applicants ’ allegations that the psychologists had followed a subjective approach appeared to be biased and not based on any evidence. 152. The Government again conceded that there might have been rare situations where the reason for the placement in a special school was on the borderline between learning difficulties and a socio-culturally disadvantaged environment. Among the eighteen cases, this had apparently happened in one case only, that of the ninth applicant. Otherwise, the pedagogical-psychological diagnostics and the testing at the educational psychology centres had proved learning difficulties in the case of all the applicants. 153. The educational psychology centres that had administered the tests had only made recommendations concerning the type of school in which the child should be placed. The essential, decisive factor was the wishes of the parents. In the instant case, the parents had been informed that their children ’ s placement in a special school depended on their consent and the consequences of such a decision had been explained to them. If the effect of their consent was not entirely clear, they could have appealed against the decision regarding placement and could at any time have required their child ’ s transfer to a different type of school. If, as they now alleged, their consent was not informed, they should have sought information from the competent authorities. The Government noted in this respect that Article 2 of Protocol No. 1 emphasised the primary role and responsibility of parents in the education of their children. The State could not intervene if there was nothing in the parents ’ conduct to indicate that they were unable or unwilling to decide on the most appropriate form of education for their children. Interference of that sort would contravene the principle that the State had to respect parents ’ wishes regarding education and teaching. In the instant case, the Government noted that apart from appealing to the Constitutional Court and lodging an application with the European Court of Human Rights, the applicants ’ parents had on the whole done nothing to spare their children the alleged discriminatory treatment and had played a relatively passive role in their education. 154. The Government rejected the applicants ’ argument that their placement in special schools had prevented them from pursuing a secondary or higher education. Whether the applicants had finished their compulsory education before or after the entry into force of the new Schools Act (Law no. 561/2004), it had been open to them to pursue their secondary education, to take additional lessons to bring them up to the appropriate level or to seek career advice. However, none of the applicants had established that they had attempted to do so (albeit unsuccessfully) or that their (alleged) difficulties were due to a more limited education as a result of their earlier placement in a special school. On the contrary, several of the applicants had decided not to pursue their studies or had abandoned them. The Government were firmly convinced that the applicants had deprived themselves of the possibility of continuing their studies through a lack of interest. Their situation, which in many cases was unfavourable, had stemmed mainly from their own lack of interest, and was not something for which the State could be held responsible. 155. The Government conceded that the national authorities had to take all reasonable steps to ensure that measures did not produce disproportionate effects or, if that was not feasible, to mitigate and compensate for such effects. However, neither the Convention nor any other international instrument contained a general definition of the State ’ s positive obligations concerning the education of Roma pupils or, more generally, of children from national or ethnic minorities. The Government noted in this connection that when determining the State ’ s positive obligations the Court sometimes referred to developments in the legislation of the Contracting Parties. However, they said that no European standard or consensus currently existed regarding the criteria to be used to determine whether children should be placed in special schools or how children with special learning needs should be educated and the special school was one of the possible and acceptable solutions to the problem. 156. Moreover, the positive obligations under Article 14 of the Convention could not be construed as an obligation to take affirmative action. That had to remain an option. It was not possible to infer from Article 14 a general obligation on the part of the State actively to compensate for all the disabilities which different sections of the population suffered from. 157. In any event, since special schools had to be regarded as an alternative, but not inferior, form of education, the Government submitted that they had in the instant case adopted reasonable measures to compensate for the disabilities of the applicants, who required a special education as a result of their individual situation, and that they had not overstepped the margin of appreciation which the Convention afforded the States in the education sphere. They observed that the State had allocated twice the level of resources to special schools as to ordinary schools and that the domestic authorities had made considerable efforts to deal with the complex issue of the education of Roma children. 158. The Government went on to provide information on the applicants ’ current situation obtained from the files of both the school and the Ostrava Job Centre ( where those applicants who were unemployed had signed on ). As a preliminary, they noted that the Ostrava region was afflicted by a high rate of unemployment and that, in general, young people who had received only a primary education had difficulties in finding work. While it was possible to obtain a qualification and career counselling from the State, the active participation of the job applicant was essential. In concrete terms, two applicants were currently in their final year at primary school. Seven had begun vocational training in a secondary school in September 2006. Four had started but later abandoned their secondary-school studies, the majority through a lack of interest, and had instead signed on at the job centre. Lastly, five of the applicants had not sought to pursue their studies at secondary-school level but had registered at the job centre. Those applicants who had registered at a job centre had not cooperated with it or shown any interest in the offers of training or employment that had been made, with the result that some of them had already been struck off the job-applicants register (in some instances repeatedly). 159. Lastly, the Government rejected the applicants ’ claim that nothing had been changed by the introduction of the Schools Act (Law no. 561/2004). The Act unified the previously existing types of primary school and standardised the educational programmes. It did not provide for a separate, independent system of specialised schools, with the exception of schools for pupils with serious mental disorders, autism or combined mental and physical defects. Pupils with disabilities were individually integrated, wherever possible and desirable, into conventional schools. However, schools were authorised to set up separate classes with educational techniques and methods adjusted to their needs. The former “special schools” could continue to function as separate institutions, but were now “primary schools” providing education under a modified educational programme for primary education. Schools at which socially disadvantaged pupils were educated often made use of their right to establish assistant teacher ’ s posts and preparatory classes designed to improve the children ’ s communication skills and command of the Czech language. Teaching assistants from the Roma community often served as a link between the school, family, and, in some instances, other experts and helped to integrate pupils into the education system. The region where the applicants lived favoured integrating Roma pupils in classes drawn from the majority population. 160. In their concluding submissions, the Government asked the Court carefully to examine the issue of the applicants ’ access to education in each individual case, though without losing sight of the overall context, and to hold that there had been no violation of the Convention. 3. The third-party interveners (a) Interights and Human Rights Watch 161. Interights and Human Rights Watch stated that it was essential that Article 14 of the Convention should afford effective protection against indirect discrimination, a concept which the Court had not yet had many occasions to consider. They submitted that aspects of the Chamber ’ s reasoning were out of step with recent developments in cases such as Timishev (cited above), Zarb Adami (cited above) and Hoogendijk (cited above). The Grand Chamber needed to consolidate a purposive interpretation of Article 14 and to bring the Court ’ s jurisprudence on indirect discrimination in line with existing international standards. 162. Interights and Human Rights Watch noted that the Court itself had confirmed in Zarb Adami that discrimination was not always direct or explicit and that a policy or general measure could result in indirect discrimination. It had also accepted that intent was not required in cases of indirect discrimination ( see Hugh Jordan v. the United Kingdom, no. 24746/94, § 154, 4 May 2001). In their submission, it was sufficient in the case of indirect discrimination that the practice or policy resulted in a disproportionate adverse effect on a particular group. 163. As to proof of indirect discrimination, it was widely accepted in Europe and internationally and also by the Court (see Timishev, cited above, § 57, and Hoogendijk, cited above) that the burden of proof had to shift once a prima facie case of discrimination had been established. In cases of indirect discrimination, where the applicant had demonstrated that significantly more people of a particular category were placed at a disadvantage by a given policy or practice, a presumption of discrimination arose. The burden then shifted to the State to reject the basis for the prima facie case, or to provide a justification for it. 164. It was therefore critical for the Court to engage with the type of evidence that might be produced in order to shift the burden of proof. Interights and Human Rights Watch submitted on this point that the Court ’ s position with regard to statistical evidence, as set out in Hugh Jordan (cited above, § 154), was at variance with international and comparative practice. In Council directives and international instruments, statistics were the key method of proving indirect discrimination. Where measures were neutral on their face, statistics sometimes proved the only effective means of identifying their varying impact on different segments of society. Obviously, courts had to assess the credibility, strength and relevance of the statistics to the case at hand, requiring that they be tied to the applicant ’ s allegations in concrete ways. If, however, the Court were to maintain the position that statistics alone were not sufficient to disclose a discriminatory practice, Interights and Human Rights Watch submitted that the general social context should be taken into account, as it provided valuable insight into the extent to which the effects of the measure on the applicants were disproportionate. (b) Minority Rights Group International, the European Network Against Racism and the European Roma Information Office 165. The Minority Rights Group International, the European Network Against Racism and the European Roma Information Office submitted that the wrongful assignment of Roma children to special schools for the mentally disabled was the most obvious and odious form of discrimination against the Roma. Children in such special schools followed a simplified curriculum considered appropriate for their lower level of intellectual development. Thus, for example, in the Czech Republic, children in special schools were not expected to know the Czech alphabet or numbers up to ten until the third or fourth year of school, while their counterparts in ordinary schools acquired that knowledge in the first year. 166. This practice had received considerable attention, both at the European level and within the human rights bodies of the United Nations, which had expressed their concern in various reports as to the over-representation of Roma children in special schools, the adequacy of the tests employed and the quality of the alleged parental consent. All these bodies had found that no objective and reasonable justification could legitimise the disadvantage faced by Roma children in the field of education. The degree of consistency among the institutions and quasi-judicial bodies was persuasive in confirming the existence of widespread discrimination against Roma children. 167. The interveners added that whatever the merits of separate education for children with genuine mental disabilities, the decision to place Roma children in special schools was in the majority of cases not based on any actual mental disability but rather on language and cultural differences which were not taken into account in the testing process. In order to fulfil their obligation to secure equal treatment for Roma in the exercise of their right to education, the first requirement of States was to amend the testing process so that it was not racially prejudiced against Roma and to take positive measures in the area of language training and social-skills training. (c) International Step by Step Association, the Roma Education Fund and the European Early Childhood Education Research Association 168. The International Step by Step Association, the Roma Education Fund and the European Early Childhood Education Research Association sought to demonstrate that the assessment used to place Roma children in special schools in the Ostrava region disregarded the numerous effective and appropriate indicators that were well known by the mid-1990s (see paragraph 4 4 above). In their submission, the assessment had not taken into account the language and culture of the children, their prior learning experiences or their unfamiliarity with the demands of the testing situation. Single rather than multiple sources of evidence had been used. Testing had been done in one sitting, not over time. Evidence had not been obtained in realistic or authentic settings where children could demonstrate their learning. Undue emphasis had been placed on individually administered, standardised tests normed on other populations. 169. Referring to various studies that had been carried out (see paragraph 4 4 above), the interveners noted that minority children and those from vulnerable families were over-represented in special education in central and eastern Europe. This resulted from an array of factors, including unconscious racial bias on the part of school authorities, large resource inequalities, unjustifiable reliance on IQ and other evaluation tools, educators ’ inappropriate responses to the pressures of “high stakes” testing and power differentials between minority parents and school officials. School placement through psychological testing often reflected racial biases in the society concerned. 170. The Czech Republic was notable for its placement of children in segregated settings because of “social disadvantage”. According to a comparison of data on fifteen countries collected by the Organisation for Economic Co-operation and Development in 1999 (see paragraph 1 8 in fine above), the Czech Republic ranked third in placing pupils with learning difficulties in special- school settings. Of the eight countries that provided data on the placement of pupils as a result of social factors, the Czech Republic was the only one to have recourse to special schools; the other countries almost exclusively used ordinary schools for educating such pupils. 171. Further, the practice of referring children labelled as being of low ability to special schools at an early age (educational tracking) frequently led, whether intentionally or not, to racial segregation and had particularly negative effects on the level of education of disadvantaged children. This had long-term detrimental consequences for both them and society, including premature exclusion from the education system with the resulting loss of job opportunities for those concerned. (d) International Federation for Human Rights ( Fédération internationale des ligues des droits de l ’ Homme – FIDH) 172. The FIDH considered that the Chamber had unjustifiably placed significant weight in its judgment on the consent the applicants ’ parents had allegedly given to the situation forming the subject of their complaint to the Court. It noted that under the Court ’ s case-law there were situations in which the waiver of a right was not considered capable of exempting the State from its obligation to guarantee to every person within its jurisdiction the rights and freedoms laid down in the Convention. That applied, in particular, where the waiver conflicted with an important public interest, or was not explicit or unequivocal. Furthermore, in order to be capable of justifying a restriction of the right or freedom of the individual, the waiver of that guarantee by the person concerned had to take place in circumstances from which it could be concluded that he was fully aware of the consequences, in particular the legal consequences, of his choice. In the case of R. v. Borden ([1994] 3 RCS 145, p. 162), the Supreme Court of Canada had developed the following principle on that precise point: “[i]n order for a waiver of the right ... to be effective, the person purporting to consent must be possessed of the requisite informational foundation for a true relinquishment of the right. A right to choose requires not only the volition to prefer one option over another, but also sufficient available information to make the preference meaningful. ” 173. The question therefore arose as to whether, in the light of the nature of the principle of equality of treatment, and of the link between the prohibition of racial discrimination and the wider concept of human dignity, waiver of the right to protection against discrimination ought not to be precluded altogether. In the instant case, the consent obtained from the applicants ’ parents was binding not solely on the applicants but on all the children of the Roma community. It was perfectly possible – indeed, in the FIDH ’ s submission, probable – that all parents of Roma children would prefer an integrated education for their children, but that, being uncertain as regards the choice that would be made by other parents in that situation, they preferred the “security” offered by special education, which was followed by the vast majority of Roma children. In a context characterised by a history of discrimination against the Roma, the choice available to the parents of Roma children was between (a) placing their children in schools where the authorities were reluctant to admit them and where they feared being the subject of various forms of harassment and of manifestations of hostility on the part of their fellow pupils and of teachers, or (b) placing them in special schools where Roma children were in a large majority and where, consequently, they would not have to fear the manifestation of such prejudices. In reality, the applicants ’ parents had chosen what they saw as being the lesser of two evils, in the absence of any real possibility of receiving an integrated education which would unreservedly welcome Roma. The disproportion between the two alternatives was such that the applicants ’ parents had been obliged to make the choice for which the Government now sought to hold them responsible. 174. For the reasons set out above, the FIDH considered that in the circumstances of the instant case, the alleged waiver by the applicants ’ parents of the right for their children to receive an education in normal schools could not justify exempting the Czech Republic from its obligations under the Convention. C. The Court ’ s assessment 1. Recapitulation of the main principles 175. The Court has established in its case-law that discrimination means treating differently, without an objective and reasonable justification, persons in relevantly similar situations ( see Willis v. the United Kingdom, no. 36042/97, § 48, ECHR 2002 ‑ IV, and Okpisz v. Germany, no. 59140/00, § 33, 25 October 2005 ). However, Article 14 does not prohibit a member State from treating groups differently in order to correct “factual inequalities” between them; indeed in certain circumstances a failure to attempt to correct inequality through different treatment may in itself give rise to a breach of the Article ( see Case “ relating to certain aspects of the laws on the use of languages in education in Belgium” v. Belgium ( merits), 23 July 1968, p. 34, § 10, Series A no. 6; Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000-IV; and Stec and Others v. the United Kingdom [GC], no. 65731/01, § 5 1, ECHR 2006 ‑ VI ). The Court has also accepted that a general policy or measure that has disproportionately prejudicial effects on a particular group may be considered discriminatory notwithstanding that it is not specifically aimed at that group ( see Hugh Jordan, cited above, and Hoogendijk, cited above ), and that discrimination potentially contrary to the Convention may result from a de facto situation ( see Zarb Adami, cited above ). 176. Discrimination on account of, inter alia, a person ’ s ethnic origin is a form of racial discrimination. Racial discrimination is a particularly invidious kind of discrimination and, in view of its perilous consequences, requires from the authorities special vigilance and a vigorous reaction. It is for this reason that the authorities must use all available means to combat racism, thereby reinforcing democracy ’ s vision of a society in which diversity is not perceived as a threat but as a source of enrichment ( see Nachova, cited above, and Timishev, cited above ). The Court has also held that no difference in treatment which is based exclusively or to a decisive extent on a person ’ s ethnic origin is capable of being objectively justified in a contemporary democratic society built on the principles of pluralism and respect for different cultures ( see Timishev, cited above, § 58). 177. As to the burden of proof in this sphere, the Court has established that once the applicant has shown a difference in treatment it is for the Government to show that it was justified (see, among other authorities, Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, §§ 91-92, ECHR 1999 ‑ III, and Timishev, cited above, § 57 ). 178. As regards the question of what constitutes prima facie evidence capable of shifting the burden of proof on to the respondent State, the Court stated in Nachova and Others ( cited above, § 147) that in proceedings before it there are no procedural barriers to the admissibility of evidence or predetermined formulae for its assessment. The Court adopts the conclusions that are, in its view, supported by the free evaluation of all evidence, including such inferences as may flow from the facts and the parties ’ submissions. According to its established case-law, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Moreover, the level of persuasion necessary for reaching a particular conclusion and, in this connection, the distribution of the burden of proof are intrinsically linked to the specificity of the facts, the nature of the allegation made and the Convention right at stake. 179. The Court has also recognised that Convention proceedings do not in all cases lend themselves to a rigorous application of the principle affirmanti incumbit probatio (he who alleges something must prove that allegation – see Aktaş v. Turkey, no. 24351/94, § 272, ECHR 2003 ‑ V). In certain circumstances, where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation ( see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII, and Anguelova v. Bulgaria, no. 38361/97, § 111, ECHR 2002 ‑ IV ). In Nachova and Others ( cited above, § 157), the Court did not rule out requiring a respondent Government to disprove an arguable allegation of discrimination in certain cases, even though it considered that it would be difficult to do so in that particular case in which the allegation was that an act of violence had been motivated by racial prejudice. It noted in that connection that in the legal systems of many countries proof of the discriminatory effect of a policy, decision or practice would dispense with the need to prove intent in respect of alleged discrimination in employment or in the provision of services. 180. As to whether statistics can constitute evidence, the Court has in the past stated that statistics could not in themselves disclose a practice which could be classified as discriminatory ( see Hugh Jordan, cited above, § 154). However, in more recent cases on the question of discrimination in which the applicants alleged a difference in the effect of a general measure or de facto situation ( see Hoogendijk, cited above, and Zarb Adami, cited above, §§ 77-78), the Court relied extensively on statistics produced by the parties to establish a difference in treatment between two groups (men and women) in similar situations. Thus, in Hoogendijk the Court stated: “[W]here an applicant is able to show, on the basis of undisputed official statistics, the existence of a prima facie indication that a specific rule – although formulated in a neutral manner – in fact affects a clearly higher percentage of women than men, it is for the respondent Government to show that this is the result of objective factors unrelated to any discrimination on grounds of sex. If the onus of demonstrating that a difference in impact for men and women is not in practice discriminatory does not shift to the respondent Government, it will be in practice extremely difficult for applicants to prove indirect discrimination.” 181. Lastly, as noted in previous cases, the vulnerable position of Roma/Gypsies means that special consideration should be given to their needs and their different lifestyle both in the relevant regulatory framework and in reaching decisions in particular cases ( see Chapman v. the United Kingdom [GC], no. 27238/95, § 96, ECHR 2001 ‑ I, and Connors v. the United Kingdom, no. 66746/01, § 84, 27 May 2004). In Chapman (cited above, §§ 93-94), the Court also observed that there could be said to be an emerging international consensus among the Contracting States of the Council of Europe recognising the special needs of minorities and an obligation to protect their security, identity and lifestyle, not only for the purpose of safeguarding the interests of the minorities themselves but to preserve a cultural diversity of value to the whole community. 2. Application of the above- mentioned principles to the instant case 182. The Court notes that as a result of their turbulent history and constant uprooting the Roma have become a specific type of disadvantaged and vulnerable minority (see also the general observations in the Parliamentary Assembly ’ s Recommendation No. 1203 (1993) on Gypsies in Europe, cited in paragraph 5 6 above, and point 4 of its Recommendation no. 1557 (2002) on the legal situation of Roma in Europe, cited in paragraph 58 above ). As the Court has noted in previous cases, they therefore require special protection (see paragraph 181 above). As is attested by the activities of numerous European and international organisations and the recommendations of the Council of Europe bodies (see paragraphs 54 - 61 above), this protection also extends to the sphere of education. The present case therefore warrants particular attention, especially as when the applications were lodged with the Court the applicants were minor children for whom the right to education was of paramount importance. 183. The applicants ’ allegation in the present case is not that they were in a different situation from non-Roma children that called for different treatment or that the respondent State had failed to take affirmative action to correct factual inequalities or differences between them ( see Thlimmenos, cited above, § 44, and Stec and Others, cited above, § 51). In their submission, all that has to be established is that, without objective and reasonable justification, they were treated less favourably than non-Roma children in a comparable situation and that this amounted in their case to indirect discrimination. 184. The Court has already accepted in previous cases that a difference in treatment may take the form of disproportionately prejudicial effects of a general policy or measure which, though couched in neutral terms, discriminates against a group ( see Hugh Jordan, cited above, § 154, and Hoogendijk, cited above). In accordance with, for instance, Council Directives 97/80/EC and 2000/43/EC (see paragraphs 82 - 84 above) and the definition provided by ECRI (see paragraph 60 above), such a situation may amount to “indirect discrimination”, which does not necessarily require a discriminatory intent. (a) Whether a presumption of indirect discrimination arises in the instant case 185. It was common ground that the impugned difference in treatment did not result from the wording of the statutory provisions on placements in special schools in force at the material time. Accordingly, the issue in the instant case is whether the manner in which the legislation was applied in practice resulted in a disproportionate number of Roma children – including the applicants – being placed in special schools without justification, and whether such children were thereby placed at a significant disadvantage. 186. As mentioned above, the Court has noted in previous cases that applicants may have difficulty in proving discriminatory treatment ( Nachova and Others, cited above, §§ 147 and 157). In order to guarantee those concerned the effective protection of their rights, less strict evidential rules should apply in cases of alleged indirect discrimination. 187. On this point, the Court observes that Council Directives 97/80/EC and 2000/43/EC stipulate that persons who consider themselves wronged because the principle of equal treatment has not been applied to them may establish before a domestic authority by any means, including on the basis of statistical evidence, facts from which it may be presumed that there has been discrimination (see paragraphs 82 - 83 above). The recent case-law of the Court of Justice of the European Communities (see paragraphs 88 - 89 above) shows that it permits claimants to rely on statistical evidence and the national courts to take such evidence into account where it is valid and significant. The Grand Chamber further notes the information furnished by the third-party interveners that the courts of many countries and the supervisory bodies of the United Nations treaties habitually accept statistics as evidence of indirect discrimination in order to facilitate the victims ’ task of adducing prima facie evidence. The Court also recognised the importance of official statistics in the above- mentioned cases of Hoogendijk and Zarb Adami and has shown that it is prepared to accept and take into consideration various types of evidence ( see Nachova and Others, cited above, § 147). 188. In these circumstances, the Court considers that when it comes to assessing the impact of a measure or practice on an individual or group, statistics which appear on critical examination to be reliable and significant will be sufficient to constitute the prima facie evidence the applicant is required to produce. This does not, however, mean that indirect discrimination cannot be proved without statistical evidence. 189. Where an applicant alleging indirect discrimination thus establishes a rebuttable presumption that the effect of a measure or practice is discriminatory, the burden then shifts to the respondent State, which must show that the difference in treatment is not discriminatory (see, mutatis mutandis, Nachova and Others, cited above, § 157). Regard being had in particular to the specificity of the facts and the nature of the allegations made in this type of case ( ibid., § 147), it would be extremely difficult in practice for applicants to prove indirect discrimination without such a shift in the burden of proof. 190. In the present case, the statistical data submitted by the applicants were obtained from questionnaires that were sent out to the head teachers of special and primary schools in the town of Ostrava in 1999. They indicate that at the time 56% of all pupils placed in special schools in Ostrava were Roma. Conversely, Roma represented only 2.26% of the total number of pupils attending primary school in Ostrava. Further, whereas only 1.8% of non-Roma pupils were placed in special schools, the proportion of Roma pupils in Ostrava assigned to special schools was 50.3%. According to the Government, these figures are not sufficiently conclusive as they merely reflect the subjective opinions of the head teachers. The Government also noted that no official information on the ethnic origin of the pupils existed and that the Ostrava region had one of the largest Roma populations. 191. The Grand Chamber observes that these figures are not disputed by the Government and that they have not produced any alternative statistical evidence. In view of their comment that no official information on the ethnic origin of the pupils exists, the Court accepts that the statistics submitted by the applicants may not be entirely reliable. It nevertheless considers that these figures reveal a dominant trend that has been confirmed both by the respondent State and the independent supervisory bodies which have looked into the question. 192. In their reports submitted in accordance with Article 25 § 1 of the Framework Convention for the Protection of National Minorities, the Czech authorities accepted that in 1999 Roma pupils made up between 80% and 90% of the total number of pupils in some special schools (see paragraph 66 above) and that in 2004 “large numbers” of Roma children were still being placed in special schools (see paragraph 67 above). The Advisory Committee on the Framework Convention observed in its report of 26 October 2005 that according to unofficial estimates Roma accounted for up to 70% of pupils enrolled in special schools. According to the report published by ECRI in 2000, Roma children were “ vastly over - represented” in special schools. The Committee on the Elimination of Racial Discrimination noted in its concluding observations of 30 March 1998 that a disproportionately large number of Roma children were placed in special schools (see paragraph 99 above). Lastly, according to the figures supplied by the European Monitoring Centre on Racism and Xenophobia, more than half of Roma children in the Czech Republic attended special school. 193. In the Court ’ s view, the latter figures, which do not relate solely to the Ostrava region and therefore provide a more general picture, show that, even if the exact percentage of Roma children in special schools at the material time remains difficult to establish, their number was disproportionately high. Moreover, Roma pupils formed a majority of the pupils in special schools. Despite being couched in neutral terms, the relevant statutory provisions therefore had considerably more impact in practice on Roma children than on non-Roma children and resulted in statistically disproportionate numbers of placements of the former in special schools. 194. Where it has been shown that legislation produces such a discriminatory effect, the Grand Chamber considers that, as with cases concerning employment or the provision of services (see, mutatis mutandis, Nachova and Others, cited above, § 157), it is not necessary in cases in the educational sphere to prove any discriminatory intent on the part of the relevant authorities (see paragraph 184 above). 195. In these circumstances, the evidence submitted by the applicants can be regarded as sufficiently reliable and significant to give rise to a strong presumption of indirect discrimination. The burden of proof must therefore shift to the Government, which must show that the difference in the impact of the legislation was the result of objective factors unrelated to ethnic origin. (b) Objective and reasonable justification 196. The Court reiterates that a difference in treatment is discriminatory if “it has no objective and reasonable justification”, that is, if it does not pursue a “legitimate aim” or if there is not a “reasonable relationship of proportionality” between the means employed and the aim sought to be realised (see, among many other authorities, Larkos v. Cyprus [GC], no. 29515/95, § 29, ECHR 1999-I, and Stec and Others, cited above, § 51). Where the difference in treatment is based on race, colour or ethnic origin, the notion of objective and reasonable justification must be interpreted as strictly as possible. 197. In the instant case, the Government sought to explain the difference in treatment between Roma children and non-Roma children by the need to adapt the education system to the capacity of children with special needs. In the Government ’ s submission, the applicants were placed in special schools on account of their specific educational needs, essentially as a result of their low intellectual capacity measured with the aid of psychological tests in educational psychology centres. After the centres had made their recommendations regarding the type of school in which the applicants should be placed, the final decision had lain with the applicants ’ parents and they had consented to the placements. The argument that the applicants were placed in special schools on account of their ethnic origin was therefore unsustainable. For their part, the applicants strenuously contested the suggestion that the disproportionately high number of Roma children in special schools could be explained by the results of the intellectual capacity tests or be justified by parental consent. 198. The Court accepts that the Government ’ s decision to retain the special - school system was motivated by the desire to find a solution for children with special educational needs. However, it shares the disquiet of the other Council of Europe institutions who have expressed concerns about the more basic curriculum followed in these schools and, in particular, the segregation the system causes. 199. The Grand Chamber observes, further, that the tests used to assess the children ’ s learning abilities or difficulties have given rise to controversy and continue to be the subject of scientific debate and research. While accepting that it is not its role to judge the validity of such tests, various factors in the instant case nevertheless lead the Grand Chamber to conclude that the results of the tests carried out at the material time were not capable of constituting objective and reasonable justification for the purposes of Article 14 of the Convention. 200. In the first place, it was common ground that all the children who were examined sat the same tests, irrespective of their ethnic origin. The Czech authorities themselves acknowledged in 1999 that “ Romany children with average or above-average intellect” were often placed in such schools on the basis of the results of psychological tests and that the tests were conceived for the majority population and did not take Roma specifics into consideration (see paragraph 66 above). As a result, they had revised the tests and methods used with a view to ensuring that they “were not misused to the detriment of Roma children” (see paragraph 72 above). In addition, various independent bodies have expressed doubts over the adequacy of the tests. Thus, the Advisory Committee on the Framework Convention for the Protection of National Minorities observed that children who were not mentally handicapped were frequently placed in these schools “[owing] to real or perceived language and cultural differences between Roma and the majority”. It also stressed the need for the tests to be “consistent, objective and comprehensive” (see paragraph 68 above). ECRI noted that the channelling of Roma children to special schools for those with mental retardation was reportedly often “quasi-automatic” and needed to be examined to ensure that any testing used was “fair” and that the true abilities of each child were “properly evaluated” (see paragraphs 63 - 64 above). The Council of Europe Commissioner for Human Rights noted that Roma children were frequently placed in classes for children with special needs “without an adequate psychological or pedagogical assessment, the real criteria clearly being their ethnic origin” (see paragraph 77 above). Lastly, in the submission of some of the third-party interveners, placements following the results of the psychological tests reflected the racial prejudices of the society concerned. 201. The Court considers that, at the very least, there is a danger that the tests were biased and that the results were not analysed in the light of the particularities and special characteristics of the Roma children who sat them. In these circumstances, the tests in question cannot serve as justification for the impugned difference in treatment. 202. As regards parental consent, the Court notes the Government ’ s submission that this was the decisive factor without which the applicants would not have been placed in special schools. In view of the fact that a difference in treatment has been established in the instant case, it follows that any such consent would signify an acceptance of the difference in treatment, even if discriminatory, in other words a waiver of the right not to be discriminated against. However, under the Court ’ s case-law, the waiver of a right guaranteed by the Convention – in so far as such a waiver is permissible – must be established in an unequivocal manner, and be given in full knowledge of the facts, that is to say on the basis of informed consent ( see Pfeifer and Plankl v. Austria, 25 February 1992, §§ 37-38, Series A no. 227) and without constraint ( see Deweer v. Belgium, 27 February 1980, § 51, Series A no. 35). 203. In the circumstances of the present case, the Court is not satisfied that the parents of the Roma children, who were members of a disadvantaged community and often poorly educated, were capable of weighing up all the aspects of the situation and the consequences of giving their consent. The Government themselves admitted that consent in this instance had been given by means of a signature on a pre-completed form that contained no information on the available alternatives or the differences between the special-school curriculum and the curriculum followed in other schools. Nor do the domestic authorities appear to have taken any additional measures to ensure that the Roma parents received all the information they needed to make an informed decision or were aware of the consequences that giving their consent would have for their children ’ s futures. It also appears indisputable that the Roma parents were faced with a dilemma: a choice between ordinary schools that were ill-equipped to cater for their children ’ s social and cultural differences and in which their children risked isolation and ostracism, and special schools where the majority of the pupils were Roma. 204. In view of the fundamental importance of the prohibition of racial discrimination ( see Nachova and Others, cited above, § 145, and Timishev, cited above, § 56), the Grand Chamber considers that, even assuming the conditions referred to in paragraph 202 above were satisfied, no waiver of the right not to be subjected to racial discrimination can be accepted, as it would be counter to an important public interest ( see, mutatis mutandis, Hermi v. Italy [GC], no. 18114/02, § 73, ECHR 2006 ‑ XII ). (c) Conclusion 205. As is apparent from the documentation produced by ECRI and the report of the Commissioner for Human Rights of the Council of Europe, the Czech Republic is not alone in having encountered difficulties in providing schooling for Roma children : other European States have had similar difficulties. The Court is gratified to note that, unlike some countries, the Czech Republic has sought to tackle the problem and acknowledges that, in its attempts to achieve the social and educational integration of the disadvantaged group which the Roma form, it has had to contend with numerous difficulties as a result of, inter alia, the cultural specificities of that minority and a degree of hostility on the part of the parents of non-Roma children. As the Chamber noted in its admissibility decision in the instant case, the choice between a single school for everyone, highly specialised structures and unified structures with specialised sections is not an easy one. It entails a difficult balancing exercise between the competing interests. As to the setting and planning of the curriculum, this mainly involves questions of expediency on which it is not for the Court to rule ( see Valsamis v. Greece, 18 December 1996, § 28, Reports of Judgments and Decisions 1996-VI). 206. Nevertheless, whenever discretion capable of interfering with the enjoyment of a Convention right is conferred on national authorities, the procedural safeguards available to the individual will be especially material in determining whether the respondent State has, when fixing the regulatory framework, remained within its margin of appreciation ( see Buckley v. the United Kingdom, 25 September 1996, § 76, Reports 1996 ‑ IV, and Connors, cited above, § 83 ). 207. The facts of the instant case indicate that the schooling arrangements for Roma children were not attended by safeguards (see paragraph 28 above) that would ensure that, in the exercise of its margin of appreciation in the education sphere, the State took into account their special needs as members of a disadvantaged class (see, mutatis mutandis, Buckley, cited above, § 76, and Connors, cited above, § 84). Furthermore, as a result of the arrangements the applicants were placed in schools for children with mental disabilities where a more basic curriculum was followed than in ordinary schools and where they were isolated from pupils from the wider population. As a result, they received an education which compounded their difficulties and compromised their subsequent personal development instead of tackling their real problems or helping them to integrate into the ordinary schools and develop the skills that would facilitate life among the majority population. Indeed, the Government have implicitly admitted that job opportunities are more limited for pupils from special schools. 208. In these circumstances and while recognising the efforts made by the Czech authorities to ensure that Roma children receive schooling, the Court is not satisfied that the difference in treatment between Roma children and non-Roma children was objectively and reasonably justified and that there existed a reasonable relationship of proportionality between the means used and the aim pursued. In that connection, it notes with interest that the new legislation has abolished special schools and provides for children with special educational needs, including socially disadvantaged children, to be educated in ordinary schools. 209. Lastly, since it has been established that the relevant legislation as applied in practice at the material time had a disproportionately prejudicial effect on the Roma community, the Court considers that the applicants as members of that community necessarily suffered the same discriminatory treatment. Accordingly, it does not need to examine their individual cases. 210. Consequently, there has been a violation in the instant case of Article 14 of the Convention taken in conjunction with Article 2 of Protocol No. 1 as regards each of the applicants. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 211. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 212. The applicants did not allege any pecuniary damage. 213. They claimed 22,000 euros (EUR) each (making a total of EUR 396,000) for the non-pecuniary damage they had sustained, including educational, psychological and emotional harm and compensation for the anxiety, frustration and humiliation they had suffered as a result of their discriminatory placement in special schools. They stressed that the effects of this violation were serious and ongoing and affected all areas of their lives. 214. Further, referring to the judgments in Broniowski v. Poland ([GC], no. 31443/96, § 189, ECHR 2004 ‑ V) and Hutten-Czapska v. Poland ([GC], no. 35014/97, §§ 235-37, ECHR 2006 ‑ VIII ), the applicants said that the violation of their rights “was neither prompted by an isolated incident nor attributable to the particular turn of events in [their] case, but was rather the consequence of administrative and regulatory conduct on the part of the authorities towards an identifiable class of citizens”. Accordingly, in their submission, general measures had to be taken at the national level either to remove any hindrance to the implementation of the right of the numerous persons affected by the situation or to provide equivalent redress. 215. The Government submitted, with particular regard to the psychological and educational damage, that it related to the complaints under Article 3 of the Convention and Article 2 of Protocol No. 1 taken individually, which had been declared inadmissible by the Court in its decision of 1 March 2005. In their submission, there was therefore no causal link between any violation of the Convention and the alleged non-pecuniary damage. They further contended that the sum claimed by the applicants was excessive and that any finding of a violation would constitute sufficient just satisfaction. 216. The Court reiterates, firstly, that by virtue of Article 46 of the Convention the High Contracting Parties have undertaken to abide by the final judgments of the Court in any case to which they are parties, execution being supervised by the Committee of Ministers. It follows, inter alia, that a judgment in which the Court finds a breach imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction under Article 41, but also to select, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in their domestic legal order to put an end to the violation found by the Court and to redress so far as possible the effects. However, the respondent State remains free to choose the means by which it will discharge its legal obligation under Article 46 of the Convention, provided that such means are compatible with the conclusions set out in the Court ’ s judgment ( see Broniowski, cited above, § 192, and Čonka v. Belgium, no. 51564/99, § 89, ECHR 2002 ‑ I ). The Court notes in this connection that the legislation impugned in the instant case has been repealed and that the Committee of Ministers recently made recommendations to the member States on the education of Roma/Gypsy children in Europe (see paragraphs 5 4 - 5 5 above). Consequently, it does not consider it appropriate to reserve the question. 217. The Court cannot speculate on what the outcome of the situation complained of by the applicants would have been had they not been placed in special schools. It is clear, however, that they have sustained non-pecuniary damage – in particular as a result of the humiliation and frustration caused by the indirect discrimination of which they were victims – for which the finding of a violation of the Convention does not afford sufficient redress. However, the amounts claimed by the applicants are excessive. Ruling on an equitable basis, the Court assesses the non-pecuniary damage sustained by each of the applicants at EUR 4,000. B. Costs and expenses 218. The applicants have not amended the initial claim they made before the Chamber. The costs and expenses do not, therefore, include those incurred in the proceedings before the Grand Chamber. The Court notes that the total amount claimed in the request signed by all the applicants ’ representatives was EUR 10 ,737, comprising EUR 2,550 ( 1,750 pounds sterling (GBP) ) for the fees invoiced by Lord Lester of Herne Hill, QC, and EUR 8,187 for the costs incurred by Mr D. Strupek in the domestic proceedings and those before the Chamber. However, the bill of costs drawn up by Lord Lester, enclosed with the claim for just satisfaction, put his fees at GBP 11,750 (approximately EUR 17,000), including GBP 1,750 in value- added tax ( VAT ), for 45 hours of legal work. The applicants ’ other representatives, Mr J. Goldston and the European Centre for Roma Rights, have not sought the reimbursement of their costs. 219. The Government noted that, apart from a detailed list of the legal services he had provided, Mr Strupek had not submitted any invoice to prove that the alleged costs and expenses had in fact been paid to him by the applicants. They did not comment on the discrepancy between the claim for just satisfaction as formulated by the applicants and the fee note submitted by Lord Lester. The Government further pointed out that only part of the application had been declared admissible and continued to be the subject of examination by the Court. They therefore submitted that the applicants should not be awarded more than a reasonable portion (not exceeding EUR 3,000) of the costs and expenses claimed. 220. The Court reiterates that legal costs are only recoverable to the extent that they relate to the violation that has been found ( see Beyeler v. Italy (just satisfaction) [GC], no. 33202/96, § 27, 28 May 2002). In the present case, this is solely the violation of Article 14 of the Convention taken in conjunction with Article 2 of Protocol No. 1. The Court notes that Lord Lester has submitted details of his professional fees, which were invoiced to the European Centre for Roma Rights. Mr Strupek has produced a breakdown of the 172 hours of legal services he rendered at an hourly rate of EUR 40, to which has to be added VAT at the rate of 19%. Having regard to all the relevant factors and to Rule 60 § 2 of the Rules of Court, the Court makes a joint award to all the applicants of EUR 10 ,000 for costs and expenses. C. Default interest 221. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court noted in particular that, at the relevant time, the majority of children in special schools in the Czech Republic were of Roma origin. Roma children of average/above average intellect were often placed in those schools on the basis of psychological tests which were not adapted to people of their ethnic origin. The Court concluded that the law at that time had a disproportionately prejudicial effect on Roma children, in violation of Article 14 (prohibition of discrimination) of the Convention taken in conjunction with Article 2 (right to education) of Protocol No. 1. |
641 | Journalists and publishing companies | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Relevant constitutional provisions 44. Article 14 of the Constitution provides as follows: “The Republic of Poland shall ensure freedom of the press and other means of social communication.” Article 31 § 3 of the Constitution, which lays down a general prohibition on disproportionate limitations on constitutional rights and freedoms (the principle of proportionality), provides: “Any limitation upon the exercise of constitutional freedoms and rights may be imposed only by statute, and only when necessary in a democratic State for the protection of its security or public order, or to protect the natural environment, health or public morals, or the freedoms and rights of other persons. Such limitations shall not violate the essence of freedoms and rights.” Article 54 § 1 of the Constitution guarantees freedom of expression. It states, in so far as relevant: “Everyone shall be guaranteed freedom to express opinions and to acquire and to disseminate information.” B. The Civil Code 45. Article 23 of the Civil Code contains a non-exhaustive list of “ personal rights” ( dobra osobiste ). This provision states: “The personal rights of an individual, such as, in particular, health, liberty, honour, freedom of conscience, name or pseudonym, image, secrecy of correspondence, inviolability of the home, scientific or artistic work, [as well as] inventions and improvements, shall be protected by the civil law regardless of the protection laid down in other legal provisions.” Article 24 § 1 of the Civil Code provides: “A person whose personal rights are at risk [of infringement] by a third party may seek an injunction, unless the activity [complained of] is not unlawful. In the event of infringement [the person concerned] may also require the party who caused the infringement to take the necessary steps to remove the consequences of the infringement ... In compliance with the principles of this Code [the person concerned] may also seek pecuniary compensation or may ask the court to award an adequate sum for the benefit of a specific public interest.” C. The Press Act 46. In accordance with section 12 § 1 (1) of the Press Act a journalist is under the duty to act with particular diligence in gathering and using the information, and, in particular, to verify the truthfulness of obtained information. THE LAW I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 47. The applicants complained that the judgments given in their case had interfered with their right to freedom of expression and that the interference could not be regarded as necessary in a democratic society. They relied on Article 10 of the Convention which reads as follows: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” A. Admissibility 48. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The applicants ’ submissions 49. The applicants averred that their article concerned a matter of public interest. They were informed by a very reliable source, namely the chief executive of the Polish branch of one of the world largest pharmaceutical companies that the company had received a proposal to arrange the placement of its drug on the list of refunded drugs in exchange for a bribe. A.F. had asserted that the proposal had been made by W.D., the Head of the Private Office of the Minister of Health. The applicants emphasised that W.D., a Government official had decided to conduct official talks with the representatives of an international pharmaceutical company not in his office but in town. During the meeting W.D. had introduced himself as a Ministry official and handed his business card. 50. Before writing their article, the applicants had spoken with A.F., the chief executive and H.M.N., the finance director of the company who had participated in the meetings. They had also obtained a written statement from the Minister of Health. In their view, the information at their disposal before the publication of the article had been sufficiently reliable to reach the conclusion presented in it. 51. The applicants asserted that the discontinuation of the investigation against W.D. for lack of evidence to support the charge was not a decisive factor and did not point to the lack of diligence on their part. Their article was published on 12 May 2003 and on 17 March 2004 the Warsaw Appellate Prosecutor charged W.D. with bribery and procurement fraud. The prosecutor imposed preventive measures on W.D., namely a ban on leaving the country and ordered him to put up a bail. The criminal proceedings against W.D. lasted nearly three years and the charges were serious enough to justify the imposition of preventive measures. The discontinuation of the investigation against a politician which took place after the publication did not demonstrate that the journalist who had levelled certain allegations had published false information for which s/he should be sanctioned. The obligation incumbent on journalist could not be interpreted as a simple obligation to publish only “true” information. It should be borne in mind that journalists had only limited resources at their disposal. The press fulfilled an essential role in a democratic society and had a duty to impart information on all matters of public interest. 52. The applicants disagreed with the argument that their failure to seek information from Ł .Z. had amounted to lack of due diligence on their part. They underlined that their source of information was the chief executive of a pharmaceutical company and that his information had been confirmed by H.M.N., a participant to the meeting. They had further obtained statements from W.D. and B.O. and spoken to some members of parliament. They did not speak to Ł.Z. because they had suspicion that he had acted for both parties (the pharmaceutical company and W.D.) and thus could not be treated as a reliable source. Moreover, he was not an active participant in the meetings. Ł.Z. was an employee of the company who presented summary information concerning the meetings to the chief executive and it was clear to the applicants that A.F. was the most competent person to provide them with information. 53. The applicants also submitted that the impugned statements in the article, which they accurately reported, had been made by the chief executive and not by the journalists themselves. The applicants had not made any corruption allegations against W.D. but only referred the statement of the chief executive. In this respect they relied on the judgment Thoma v Luxembourg. In the applicants ’ view, the interference complained of was not necessary in democratic society and the authorities did not give relevant and sufficient reasons to justify it. 2. The Government ’ s submissions 54. The Government maintained that the interference with the applicants ’ right to freedom of expression was in accordance with Article 10 of the Convention. It was prescribed by law ( Articles 23 and 24 of the Civil Code) and pursued the legitimate aim of protection of the reputation or the rights of others. 55. With regard to the necessity for the interference, the Government submitted that the allegations made by the applicants against W.D. were factual statements. They referred, inter alia, to the following passages from the article: “ the pharmaceutical company claims that the Head of the Private Office of the Minister of Health demanded a large bribe ” and “ W.D., the Head of the Private Office of M. Ł ., demanded a multi-million dollar bribe, offering assistance in placing drugs on the list of refunded drugs – claims the foreign pharmaceutical company ”. The assessment of the above statements should be conducted in terms of their truthfulness. With regard to the factual statements, the requirement for the journalists to prove that the allegation was substantially true was not contrary to the Convention. The Government recalled that the Warsaw Court of Appeal and the Supreme Court found that the testimonies of witnesses Ł .Z., B.O. and H.M.N. had not confirmed that the allegations made by the applicants had been true. 56. The Government submitted that the allegation made by the applicants had been of a very serious nature as it concerned the corruption offer made by a prominent State official. Such an act constituted a crime under Article 228 § 1 of the CC punishable by up to eight years ’ imprisonment. However, the applicants did not act with due diligence and failed to comply with the ordinary journalistic obligation to verify this factual allegation. 57. First of all, the applicants did not collect sufficiently accurate and reliable information and did not consult with all the relevant sources which were available to them. Mainly, they had failed to question Ł .Z. who had been one of only four participants to the meetings at which the alleged corruption proposals had been made. Ł.Z. had been serving as an interpreter between W.D. and B.O who spoke only Polish and H.M.N. who spoke English. They also failed to observe due diligence in their assessment of A.F. ’ s statements despite the fact that he had not participated in the meetings and relied on the information provided by Ł.Z. and H.M.N. The applicants did not question the fact that A.F. had not wanted them to speak to Ł.Z. 58. Secondly, with regard to the applicant ’ s assertion that at the time of publication it was impossible for them to verify the truthfulness of the allegations, the Government stressed that the domestic courts had examined this issue and found that the information at the applicants ’ disposal had been insufficient to make the allegation of corruption. The Supreme Court stated that it was obvious that the applicants had not had the same resources as the authorities; however they had been obliged to act with requisite diligence in order to rebut the unlawfulness of their allegations. It further noted that “when the circumstances indicated a higher probability of inaccuracy in the submissions of persons who were the source of information for the journalist, a particularly meticulous verification of the truthfulness of the allegations was necessary”. 59. The Government further maintained that the domestic courts had given relevant and sufficient reasons for their decisions. The sanctions imposed on the applicants were proportionate as they had been held liable only under the civil law. The applicants were ordered to publish an apology and to pay the costs of the claimant and the court fees. They did not have to pay compensation. In the Government ’ s view, the domestic courts struck a fair balance between the restriction of the applicants ’ freedom of expression and the protection of W.D. ’ s reputation. 3. The Court ’ s assessment 60. It was common ground between the parties that the domestic courts ’ decisions complained of by the applicants amounted to “interference” with the exercise of their right to freedom of expression. The Court also finds that the interference complained of was prescribed by law, namely Articles 23 and 24 of the Civil Code, and pursued the legitimate aim referred to in Article 10 § 2 of the Convention, namely “the protection of the reputation or rights of others”. 61. It remains to be established whether the interference was “necessary in a democratic society”. This determination must be based on the following general principles emerging from the Court ’ s case ‑ law (see, among other authorities, Cumpǎnǎ and Mazǎre v. Romania [GC], no. 33348/96, §§ 88 ‑ 91, ECHR 2004 ‑ XI, with further references): (a) The test of “necessity in a democratic society” requires the Court to determine whether the interference corresponded to a pressing social need. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those delivered by independent courts. The Court is therefore empowered to give the final ruling on whether a “restriction” is reconcilable with freedom of expression as protected by Article 10. (b) The Court ’ s task in exercising its supervisory function is not to take the place of the competent domestic courts but rather to review under Article 10 the decisions they have taken pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully or in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole, including the content of the statements held against the applicant and the context in which he or she has made them. (c) In particular, the Court must determine whether the reasons adduced by the national authorities to justify the interference were relevant and sufficient and whether the measure taken was proportionate to the legitimate aims pursued. In doing so, the Court has to satisfy itself that the national authorities, basing themselves on an acceptable assessment of the relevant facts, applied standards which were in conformity with the principles embodied in Article 10. (d) The Court must also ascertain whether the domestic authorities struck a fair balance between the protection of freedom of expression as enshrined in Article 10 and the protection of the reputation of those against whom allegations have been made, a right which, as an aspect of private life, is protected by Article 8 of the Convention. 62. However, Article 10 of the Convention does not guarantee wholly unrestricted freedom of expression even with respect to press coverage of matters of serious public concern and relating to politicians or public officials. Under the terms of its second paragraph, the exercise of this freedom carries with it “duties and responsibilities”, which also apply to the press. These “duties and responsibilities” are liable to assume significance when there is a question of attacking the reputation of a named individual and infringing the “rights of others”. By reason of the “duties and responsibilities” inherent in the exercise of the freedom of expression, the safeguard afforded by Article 10 to journalists in relation to reporting on issues of general interest is subject to the proviso that they are acting in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism (see, among other authorities, Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 65, ECHR 1999 ‑ III; Kasabova v. Bulgaria, no. 22385/03, § 63, 19 April 2011). 63. In previous cases, when the Court has been called upon to decide whether to exempt newspapers from their ordinary obligation to verify factual statements that are defamatory of private individuals, it has taken into account various factors, particularly the nature and degree of the defamation and the extent to which the newspaper could have reasonably regarded its sources as reliable with regard to the allegations ( Bladet Tromsø and Stensaas, cited above, § 66). These factors, in turn, require consideration of other elements such as the authority of the source ( Bladet Tromsø and Stensaas, cited above), whether the newspaper had conducted a reasonable amount of research before publication ( Prager and Oberschlick v. Austria, 26 April 1995, § 37, Series A no. 313), whether the newspaper presented the story in a reasonably balanced manner ( Bergens Tidende and Others v. Norway, no. 26132/95, § 57, ECHR 2000 ‑ IV) and whether the newspaper gave the persons defamed the opportunity to defend themselves ( Bergens Tidende and Others, cited above, § 58). Hence, the nature of such an exemption from the ordinary requirement of verification of defamatory statements of fact is such that, in order to apply it in a manner consistent with the case-law of this Court, the domestic courts have to take into account the particular circumstances of the case under consideration. If the national courts apply an overly rigorous approach to the assessment of journalists ’ professional conduct, the latter could be unduly deterred from discharging their function of keeping the public informed. The courts must therefore take into account the likely impact of their rulings not only on the individual cases before them but also on the media in general (see Kasabova, cited above, § 55 and Yordanova and Toshev v. Bulgaria, no. 5126/05, § 48, 2 October 2012 ). 64. An additional factor of particular importance in the present case is the vital role of “public watchdog” which the press performs in a democratic society. Although it must not overstep certain bounds, in particular in respect of the reputation and rights of others, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities ‑ information and ideas on political issues and on other matters of general interest (ibid., § 93, with further references). The Court must apply the most careful scrutiny when the sanctions imposed by a national authority are capable of discouraging the participation of the press in debates over matters of legitimate public concern (see, among other authorities, Tønsbergs Blad A.S. and Haukom v. Norway, no. 510/04, § 88, ECHR 2007 ‑ III). 65. The matters discussed in the applicants ’ article concerned issues of public interest, namely allegations of improper conduct of W.D., a high ‑ ranking official of the Ministry of Health. The article described W.D. ’ s involvement in the negotiations with the representatives of a pharmaceutical company where he had allegedly requested a financial advantage. The wider context of the article dealt with the issue of irregularities in the process related to placement of drugs on the list of refunded drugs. 66. At the material time W.D. held the position of the Head of the Private Office of the Minister of Health. Appointment to and dismissal from this position depended entirely on the discretion of the Minister. It further appears from the article that W.D. was a member of the regional branch of the Alliance of the Democratic Left and a close associate of the Minister of Health M. Ł. The limits of acceptable criticism are wider with regard to a person holding a public office than with regard to a private individual. Unlike the latter, the former inevitably and knowingly lays himself open to close scrutiny of his words and deeds by journalists and the public at large, and he must consequently display a greater degree of tolerance (see, among other authorities, Lingens v. Austria, 8 July 1986, § 42, Series A no. 103; Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 80, ECHR 2004 ‑ XI; Mamère v. France, no. 12697/03, § 27, ECHR 2006 ‑ XIII). 67. In the present case the Court of Appeal found that the applicants had infringed the personal rights of W.D. by having alleged that he had offered to a pharmaceutical company to place its drug on the list of refunded drugs in return for a significant bribe. The Supreme Court confirmed the Court of Appeal ’ s judgment. 68. The domestic courts ’ analysis focused on the issue of special diligence required of journalist in order to rebut the presumption of unlawfulness of the infringement of personal rights. They referred to the case-law of the Supreme Court which held that in order to rebut the above presumption of unlawfulness it was sufficient to establish that a journalist had acted with requisite diligence and that s/he was not required to demonstrate the truthfulness of the allegations raised (see paragraph 32 above). In the instant case, the first-instance court (the Regional Court) found that the applicants had shown sufficient diligence in the preparation of their article, while the two higher courts reached the opposite conclusion. 69. The Court recalls that in situations where on the one hand a statement of fact is made and insufficient evidence is adduced to prove it, and on the other the journalist is discussing an issue of genuine public interest, verifying whether the journalist has acted professionally and in good faith becomes paramount (see Flux v. Moldova (no. 7), no. 25367/05, § 41, 24 November 2009; Kasabova, cited above, § 63 in fine; Ziembiński v. Poland, no. 46712/06, § 53, 24 July 2012; and Yordanova and Toshev, cited above, § 55). 70. The Court of Appeal considered that the applicants had not acted professionally because their allegations against W.D. had not been sufficiently researched. It reproached the applicants essentially for their failure to speak to Ł .Z. who had been one of the four participants at the meetings and the one who had served as an interpreter. It emphasised that the journalists relied on the story of A.F. (the chief executive) while his knowledge had been based on account of the meetings given by Ł.Z. and H.M.N. and that the journalists should have confronted the story put to them by A.F. with the version of Ł.Z. The Court of Appeal found that A.F. ’ s story was not credible because he had apparently not wished that the journalist speak to Ł.Z. However, it appears that the journalists themselves did not consider Ł.Z. as trustworthy source suspecting him of double loyalty and because he was not an active participant at the meetings. They relied on the story of the chief executive corroborated by H.M.N. 71. The Court of Appeal focused its assessment of journalistic diligence on one element without paying regard to other aspects of the journalists ’ professionalism and the overall context in which the business meetings with the participation of W.D. took place. It is true that A.F. broke the story to the journalists. However, they undertook to verify the story meticulously. Firstly, they considered his account credible because A.F. pledged to repeat it in the court if necessary and because it was consistent with the account of H.M.N., one of the representatives of the company at the meetings. Secondly, they contacted the Minister of Health and spoke to two other major protagonists of the story, namely B.O. and W.D. The journalists ’ impression of the credibility of the story was reinforced by inconsistent accounts given by W.D. (see paragraph 11 above). Thirdly, the journalists spoke to A.N., the Deputy Minister of Health in charge of the drugs policy at the relevant time who had given a very critical opinion of W.D. ’ s involvement in the meetings. The statements of the Deputy Minister supported the applicants ’ thesis that W.D. acted improperly in mixing his official position with business ventures. Fourthly, the Court of Appeal entirely omitted to note the fact of W.D. ’ s presence at the private meetings between two companies where he had taken part in the negotiations having introduced himself as a high-ranking Government official. The Court agrees with the Regional Court that this fact, bordering on a conflict of interest, lends credibility to A.F. ’ s account. 72. The extent to which the applicants could have reasonably regarded the impugned information provided by the representatives of pharmaceutical company as reliable must be determined in the light of the situation at the time of the preparation of the article, rather than with the benefit of hindsight (see Bladet Tromsø and Stensaas, cited above, §§ 66 in fine and 72; and Kasabova, cited above, § 67). In this respect it should be noted that the domestic courts refrained from assessing the diligence of the two journalists from the perspective of the information available at the time of preparation of the article. 73. Furthermore, it should be noted that the allegations raised in the article resulted in the opening of the criminal investigation into the matter and the charges of bribery being laid against W.D. Although the investigation was eventually discontinued for lack of sufficient evidence, the mere length of it (more than three and a half years of proceedings) and the significant amount of evidence examined by the prosecutor would indicate that the allegations could not have been ignored (see paragraphs 42 ‑ 43 above). 74. The Court further notes that the Court of Appeal found, relying essentially on one sentence from the testimony of H.M.N., that there had been no correlation between the project concerning the network of osteoporosis clinics and the placement of the drug on the list (see paragraph 35 above). At the same time it was undisputed that the parties to the meetings discussed the financial involvement of M. S. D. in the project in the region of 1-1.5 USD million and that the project collapsed when the M. S. D. refused to transfer this amount to an unspecified bank account. In addition, three out of four participants (Ł.Z., W.D. and H.M.N.) testified that they discussed the issue of placement of the M. S. D. ’ s drug on the list of refunded drugs. 75. Having regard to the above elements and the overall content of the impugned publication, the Court considers that the applicants complied with the tenets of responsible journalism. The research done by the applicants before the publication of their allegations was in good faith and complied with the ordinary journalistic obligation to verify the facts from reliable sources (compare and contrast, Rumyana Ivanova v. Bulgaria, no. 36207/03, § § 64- 65, 14 February 2008; Kania and Kittel v. Poland, no. 35105/04, § § 45-46, 21 June 2011 ). The Court is of the view that the allegations against W.D. were underpinned by a sufficient factual basis. It should also be noted that the content and the tone of the article was on the whole fairly balanced. The applicants, having approached a number of sources, gave as objective picture as possible of W.D. and offered him to present his version of the relevant events and to comment on the allegations raised. W.D. ’ s version of events was presented in the article. 76. In assessing the necessity of the interference, it is also important to examine the way in which the domestic courts dealt with the case, and in particular whether they applied standards which were in conformity with the principles embodied in Article 10 of the Convention. In the instant case, the domestic courts did not take into account the status of W.D. and the wider limits of permissible criticism applicable to politicians or public officials. Similarly, they omitted to consider the fact that the allegations of corruption had emanated from the pharmaceutical company and had been reported as such by the applicants. Furthermore, the Court of Appeal and the Supreme Court appear to have been unconcerned by the fact that one of the top officials in the Ministry of Health took part in the negotiations between two private companies on their joint business venture in which the public authorities had no involvement. Nor did they appreciate that the subject-matter of the publication concerned issues of public interest or the role of the press as a “public watchdog”. In consequence, the judicial authorities did not carry out a careful balancing exercise between the right to impart information and protection of the reputation or rights of others ( compare and contrast, Keller v. Hungary (dec.), no. 33352/02, 4 April 2006; Kwiecień v. Poland, no. 51744/99, § 52, 9 January 2007; Błaja News sp. Z o. o. v. Poland, no. 59545/10, § 64, 26 November 2013). 77. It follows that the reasons relied on by the respondent State to justify the interference with the applicants ’ right to freedom of expression, although relevant, are not sufficient to show that that interference was “necessary in a democratic society”. 78. There has accordingly been a violation of Article 10 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 79. The applicants complained under Article 6 § 1 of the Convention that the Warsaw Court of Appeal had lacked impartiality, as one of the judges of this court was W.D. ’ s brother-in-law and W.D. ’ s mother-in-law had previously served as the President of this court. The applicants also indicated that W.D. ’ s father-in-law was a former judge of the Supreme Court. 80. The Court notes, however, that the applicants did not raise this complaint in the course of the proceedings before the Court of Appeal or later on in their cassation appeal to the Supreme Court. It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 81. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 82. The first applicant, Mr Andrzej Stankiewicz and the second applicant, Ms Małgorzata Solecka each claimed EUR 5,000 in respect of non-pecuniary damage. They submitted that the national courts ’ decisions in their case had resulted in adverse publicity, loss of professional reliability and reputation as well as emotional strain. 83. The Government argued that the applicants had been held liable only under the civil law for infringement of W.D. ’ s personal rights. They maintained that the claims were exorbitant and unsubstantiated. 84. The Court accepts that the first and second applicants suffered non ‑ pecuniary damage – such as distress and frustration – which is not sufficiently compensated by the finding of a violation of the Convention. Having regard to the nature of the breach and making its assessment on an equitable basis, the Court awards the first and the second applicants each EUR 5,000, plus any tax that may be chargeable, in respect of non ‑ pecuniary damage. 85. The third applicant, Presspublica sp. z o. o. sought, under the head of costs and expenses, reimbursement of the court fees in the amount of EUR 1,100 and of the legal costs of W.D. in the amount of EUR 1,550 which the applicants were jointly ordered to pay by the Court of Appeal. It submitted that all costs related to the proceedings were borne by the Presspublica sp. z o. o. 86. The Government commented that the applicants did not make a claim in respect of pecuniary damage. 87. The Court, however, notes that the third applicant is in principle entitled to recover any sums that it has paid in fees and costs to W.D., by reason of their direct link with the Court of Appeal ’ s judgment which the Court found to be in breach of its right to freedom of expression (see Lingens v. Austria, 8 July 1986, § 50, Series A no. 103; Scharsach and News Verlagsgesellschaft v. Austria, no. 39394/98, § 50, ECHR 2003 ‑ XI; and Yordanova and Toshev, cited above, § 78 ). The claim made by the third applicant clearly falls under the heading of pecuniary damage resulting from a breach of the Convention, not costs and expenses. Having regard to the above, the Court awards the third applicant EUR 2,650 in respect of pecuniary damage. B. Costs and expenses 88. The costs and expenses related to the domestic proceedings and the proceedings before the Court were borne exclusively by the third applicant, Presspublica sp. z o. o. The third applicant claimed a total of EUR 8,387.50 for legal fees incurred before the domestic courts and those incurred before the Court, producing relevant invoices. 89. The Government submitted that only the costs actually incurred in the preparation and defense of the applicants ’ case before the Court and not before the domestic courts can be taken into consideration. 90. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. Furthermore, an applicant is entitled to an award in respect of the costs and expenses incurred by him/her at domestic level to prevent the breach found by the Court or to obtain redress therefor (see, among other authorities, Le Compte, Van Leuven and De Meyere v. Belgium (Article 50), 18 October 1982, § 17, Series A no. 54). In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the third applicant EUR 6, 000 plus any tax that may be chargeable to it, in respect of its legal costs in both domestic and Strasbourg proceedings. C. Default interest 91. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 10 (freedom of expression) of the Convention, finding in particular that the Polish judicial authorities had not carried out a careful balancing exercise between the right to impart information and protection of the reputation or rights of others. The reasons relied on by Poland to justify the interference with the applicants’ right to freedom of expression, although relevant, were not sufficient to show that that interference was necessary in a democratic society. |
202 | Access to a lawyer | II. RELEVANT DOMESTIC LAW AND PRACTICE AT THE MATERIAL TIME A. Constitution of Ukraine 1996 121. Articles 28 and 29 of the Constitution, which are relevant to the case, read as follows: “ Article 28 Everyone has the right to respect for his or her dignity. No one shall be subjected to torture, cruel, inhuman or degrading treatment or punishment that violates his or her dignity. ... Article 29 Every person has the right to freedom and personal inviolability. No one shall be arrested or held in custody other than pursuant to a reasoned court decision and only on the grounds and in accordance with a procedure established by law. In the event of an urgent necessity to prevent or stop a crime, bodies authorised by law may hold a person in custody as a temporary preventive measure, the reasonable grounds for which shall be verified by a court within seventy-two hours. The detained person shall be released immediately if he or she has not been provided, within seventy-two hours of the moment of detention, with a reasoned court decision in respect of their holding in custody. Everyone who has been arrested or detained shall be informed without delay of the reasons for his or her arrest or detention, apprised of his or her rights, and from the moment of detention shall be given the opportunity to personally defend himself or herself, or to have the legal assistance of defence counsel. Everyone who has been detained has the right to challenge his or her detention in court at any time. Relatives of an arrested or detained person shall be informed immediately of his or her arrest or detention.” 122. Articles 59 and 63 concerning the right to legal assistance and the right not to incriminate oneself can be found in the judgment of 19 February 2009 in the case of Shabelnik v. Ukraine (no. 16404/03, § 25 ). B. Criminal Code 2001 123. Article 115 envisages seven to fifteen years'imprisonment as the penalty for premeditated murder and imprisonment of ten to fifteen years or for life as the penalty for premeditated murder for profit and/or committed following conspiracy by a group of persons. 124. Article 121 penalises premeditated infliction of grievous bodily harm causing the victim's death by imprisonment for seven to ten years. 125. Under paragraph 4 of Article 187, assault with intent to rob committed by an organised group or coupled with infliction of grievous bodily harm is punishable by imprisonment for a term of eight to fifteen years, with confiscation of property. 126. Paragraph 1 of Article 263 provides for two to five years'imprisonment for illegal possession and use of weapons. 127. Under Article 371, deliberately unlawful arrest is a crime punishable by a maximum of five years'imprisonment. C. Administrative Offences Code 1984 128. Article 44 prohibits production, purchase, storage, transport, or dispatch of drugs or psychotropic substances in small quantities without the purpose being trafficking. 129. Article 263 provides for administrative detention on account of an administrative offence for a maximum of three hours. In exceptional cases envisaged in the legislation the duration of the administrative detention may be longer. Persons suspected of a drug offence may be detained for up to three hours for compilation of the offence report. If the identity of the suspect is not known, or if there is a need for a medical examination or clarification of the circumstances in which the drug had been procured, or if the drug needs to be analysed, the administrative detention may last up to three days subject to the prosecutor's notification, or up to ten days – subject to the prosecutor's approval and if the offender's identity is unknown. D. Code of Criminal Procedure (CCP) 1960 130. The provisions concerning the application of preventive measures and their types, time-limits for pre-trial detention and also the grounds for and procedure of detention by an enquiry body (the investigator in the instant case), can be found in the Molodorych v. Ukraine judgment, no. 2161 /0 2, §§ 5 6 -5 8, 28 October 2010. 131. The provisions concerning the obligation to institute criminal proceedings and investigate a crime can be found in the judgment of 27 November 2008 in the case of Spinov v. Ukraine (no. 34331/03, § 33 ). 132. Under Article 23 -2, if the court discovers a violation of law and/or of citizens'rights in the course of a pre-trial enquiry or investigation, or during an examination of a case in a lower-level court, it issues a separate ruling by which it draws the attention of the respective authorities to the established facts and directs them to take certain measures to remedy the situation. Failure to take the requisite measures is considered an administrative offence. 133. Article 45 provides that legal representation during the enquiry, the pre-trial investigation and the trial before the first-instance court is obligatory if, inter alia, the possible penalty is a life sentence. It further specifies that in this case the legal representation must be provided from the moment of the arrest or the laying of charges against the person. 134. Article 97 obliges prosecutors, investigators, bodies of enquiry and judges to accept applications or communications as to the crimes committed or prepared, including in cases that fall outside their competence, and to adopt one of the following decisions within the three-day time limit: ( 1) to institute criminal proceedings; ( 2) to refuse to institute criminal proceedings; or ( 3) to remit the application or communication for further examination according to jurisdiction. 135. Pursuant to paragraphs 2 and 4 of Article 155, persons remanded in custody are held in Pre-Trial Detention Centres (SIZOs, part of the penal system). Exceptionally, they may also be held in Temporary Detention Facilities (ITTs, part of the police infrastructure), but for no longer than three days. If it is impossible to ensure a transfer to a SIZO within the aforementioned time-limit, because of its remote location or lack of infrastructure, a detainee may stay in an ITT for up to ten days. 136. Under Article 236-1, complaints against decisions of an investigator or prosecutor refusing to initiate criminal proceedings may be filed by a person whose interests it concerns with the local court at the place of the respective authority or official. 137. Before the amendments of 21 June 2001, Article 244 had specified that a court ruling following the preparatory hearing prior to a trial had to give reasons in the event of changing the preventive measure. By the aforementioned amendments, that provision was repealed. Article 237, as worded at the material time, obliged the judge of a trial court dealing with the case to consider in the preparatory hearing, inter alia, whether there were grounds for changing, lifting or applying a preventive measure. 138. Under paragraph 1 of Article 370, essential violations of the criminal procedure legislation are those which have impeded or could have impeded the court in the complete and thorough examination of a case and in issuing a lawful, reasoned and just judgment. Paragraph 2 of this Article includes a violation of the right of an accused to defence, as well as a breach of the territorial jurisdiction rules, among such essential violations which warrant the quashing of a judgment in any event (that is, regardless of whether the requirements of paragraph 1 have been met). E. Code of Civil Procedure 1963 139. Chapter 31-A of the Code dealt with complaints against decisions, acts or inactivity on the part of State and local self-government bodies as well as their officials. In particular, Article 248-1 of the Code provided that anyone who considered that his or her rights or freedoms had been infringed by a decision, act or omission on the part of a State body, legal entity or official could lodge a complaint with a court. F. Law of Ukraine “On the Procedure for the Compensation of Damage caused to Citizens by the Unlawful Actions of Bodies in charge of Operational Enquiries, Pre-trial Investigation Authorities, Prosecutors or Courts” (“the Compensation Act”) ” 140. Articles 1 and 2 (as worded before the amendments of 1 December 2005) can be found in the following judgments respectively: Kobtsev v. Ukraine, no. 7324/02, § 35, 4 April 2006, and Afanasyev v. Ukraine, no. 38722/02, § 52, 5 April 2005). 141. Following the amendments to the Compensation Act of 1 December 2005, the list of cases where the right to compensation would arise was expanded by the following point: “ ( 1-1) where ... unlawfulness of remand and holding in custody ... has been established by a conviction or other judgment of a court (save for rulings on remittal of cases for additional investigation)”. G. Extracts from the Report of the Commissioner for Human Rights of the Parliament of Ukraine (Ombudsman) for 2004 and 2005 142. The relevant extracts from Chapter 4.4 provide as follows: “While being held in police stations detainees are particularly exposed to the risk of being beaten or humiliated. ... The Commissioner has been underlining in each annual report that law-enforcement officials systematically subject detainees to torture. ... The Commissioner has emphasised on numerous occasions that one of the main reasons for violence by the police is the actual preservation of the rate of resolved crimes as a benchmark for performance reporting. The police achieve the required statistics of resolved crimes by torturing innocent persons. And the figures in support of this statement are dramatic. ... The following phenomenon was noted in the past and still remains in place. In order to verify whether a person is involved in a crime, he/she is placed under administrative arrest on falsified grounds and subjected to intensive torture with a view of breaking his/her will and extracting a confession to the crime. It is this period when the detainee is particularly exposed to serious risk of loss of life or becoming disabled or being subjected to unbearable humiliation and loss of dignity. ... ” III. RELEVANT INTERNATIONAL MATERIAL 143. The relevant extracts from the Report to the Ukrainian Government on the visit to Ukraine carried out by the CPT from 9 to 21 October 2005 [CPT/Inf (2007) 22] read as follows: “ ... 15. Since the CPT's first visit to Ukraine, the treatment of persons deprived of their liberty by Internal Affairs staff has been a cause of very serious concern. The 2005 visit revealed a slight reduction as regards the scale of the phenomenon of ill-treatment, although not sufficient to dispel the Committee's misgivings. Indeed, in the course of the 2005 visit, the Committee's delegation received a significant number of allegations of deliberate physical ill-treatment of detainees [ ... ] inflicted by operational officers, in particular during initial questioning in district police stations with a view to securing confessions in respect of the criminal offence for which the persons in question were detained or additional confessions relating to unsolved crimes. [ ... ] In some cases, the severity of the ill-treatment alleged – which could also consist of a combination of several forms of ill-treatment – was such that it could be considered as amounting to torture. ... 18. In the light of the delegation's findings, the Committee has no alternative but to revert back to the conclusion it reached in paragraph 20 of its 2002 visit report. Three years later, it has to be said that persons deprived of their liberty by Internal Affairs staff still run a significant risk of being subject to ill-treatment – on occasion, severe ill-treatment/torture – by operational officers, in particular during interrogation. ” THE LAW I. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION IN RESPECT OF THE FIRST APPLICANT 144. The first applicant complained that he had been tortured while in police custody and that the domestic authorities had failed to perform a due investigation into the matter. He relied on Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 145. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. B. Merits 1. Alleged ill-treatment (a) The parties'submissions 146. The first applicant alleged that he had been subjected to torture by electric shocks while in police custody. Referring to the medical reports of 24 May and 10 June 2004 and the findings of the Shepetivka Court in its ruling of 10 July 2006, he emphasised that it was an established fact that he had sustained injuries while being held in the hands of the police. The first applicant further submitted that although the authorities had denied that electric shocks had been administered to him, they had failed to advance any plausible explanation regarding the origin of his injuries. Moreover, the medical report of 29 June 2005 corroborating his allegation had never been challenged or even commented on by the authorities. 147. The Government contended that the first applicant had not proven the veracity of the allegation of his ill-treatment beyond reasonable doubt. They noted that he had never raised that complaint before the medical personnel or administration of either the Khmelnytskyy ITT or the SIZO. Although the medical reports of 24 May and 10 June 2004 found that the first applicant had sustained some bodily injuries, they refuted his allegation as to their origin. Furthermore, the injuries in question were classified as minor. Overall, the Government considered that the first applicant's complaint had been duly verified by the domestic courts in the context of his trial and had rightly been dismissed as unfounded. ( b ) The Court's assessment 148. The Court reiterates that Article 3 of the Convention enshrines core values of the democratic societies making up the Council of Europe and ranks as one of the most fundamental provisions in the Convention, from which no derogation is permitted (see, among many other references, Selmouni v. France [GC], no. 25803/94, § 95, ECHR 1999 ‑ V ). Where allegations are made under this provision, the Court must conduct a particularly thorough scrutiny and will do so on the basis of all the material submitted by the parties (see Matyar v. Turkey, no. 23423/94, § 109, 21 February 2002, and Ülkü Ekinci v. Turkey, no. 27602/95, § 136, 16 July 2002 ). 149. In determining whether a particular form of ill-treatment should be classified as torture, consideration must be given to the distinction, embodied in Article 3, between this notion and that of inhuman or degrading treatment. As noted in previous cases, it appears that it was the intention that the Convention should, by means of such a distinction, attach a special stigma to deliberate inhuman treatment causing very serious and cruel suffering (see Ireland v. the United Kingdom, 18 January 1978, § 167, Series A no. 25 ). In addition to the severity of the treatment, there is a purposive element to torture, as recognised in the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which in Article 1 defines torture in terms of the intentional infliction of severe pain or suffering with the aim, inter alia, of obtaining information, inflicting punishment or intimidating (see Selmouni, cited above, § 97; and Akkoç v. Turkey, nos. 22947/93 and 22948/93, § 115, ECHR 2000 ‑ X). In the Selmouni judgment, cited above, the Court took the view that the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably required greater firmness in assessing breaches of the fundamental values of democratic societies (§ 101). 150. As the Court has held on many occasions, allegations of ill-treatment must be supported by appropriate evidence. In assessing evidence, the Court adopts the standard of proof “beyond reasonable doubt”. Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see, as a classic authority, Ireland v. the United Kingdom, cited above, § 161 ). Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries occurring during such detention. The burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000 ‑ VII). 151. Turning to the facts of the present case, the Court notes that two forensic medical examinations, of 24 May and 10 June 2004, undertaken on the investigator's orders discovered injuries on the applicant's body –consisting of some twenty pinpoint sores on both ankles and a purple bruise on the thigh – and found that they had been inflicted at the time when he was in police custody (see paragraphs 17 and 22 above). This was not disputed by the parties. 152. At the same time the Court observes that the parties advanced different explanations as to the origin of those injuries. On the one hand, the first applicant gave a detailed and consistent account supported by a private institution's forensic medical report of 29 June 2005 (see paragraph 32 above), according to which electric shocks had been administered to him in the police station. On the other hand, the authorities'version supported by official medical reports of 24 May and 10 June 2004 was that the injuries at issue “might have been caused by blunt objects”, with no further details available and without any comments concerning the 29 June 2005 report although it had been included in the case file in the criminal proceedings against the first applicant (see paragraphs 17, 22 and 82 above). 153. The Court does not find convincing the Government's explanation as to how the first applicant's injuries were caused. Nor does it accept their view that the first applicant's failure to raise the ill-treatment allegation before the ITT or SIZO administration undermines its plausibility. He might have been discouraged from complaining to the ITT administration by its structural link with the police whom he accused of torture (see paragraph 135 above). At the same time, the Court does not lose sight of his prompt attempts to bring the matter to the attention of the prosecution authorities, as is confirmed by the fact that the KCPO ordered his forensic medical examination as early as 24 May 2004. As regards the first applicant's silence on the matter before the SIZO administration, the Court finds it to be of no relevance, as by the time of his transfer there (on 22 June 2004), the prosecution authorities had arranged for his two medical examinations and had delivered a ruling refusing to bring proceedings against the police officers to establish their criminal liability. 154. Bearing that in mind, and given the authorities'failure to challenge, or even to explain, the medical evidence in support of the applicant's allegation of ill- treatment by electric current, the Court finds it established to the standard of proof required in Convention proceedings that the injuries recorded in the medical reports were the result of the treatment of which the applicant complained and for which the Government bore responsibility (see Polonskiy v. Russia, no. 30033/05, § 123, 19 March 2009, and cited therein Mehmet Emin Yüksel v. Turkey, no. 40154/98, § 30, 20 July 2004). 155. Having regard to the fact that the applicant confessed to the murder of Ms I. for the first time on 21 May 2004 while being formally under arrest for an unrelated administrative offence and noting the allegations of his beatings by the police prior to his repeated confessions on 26 and 28 May 2004 (see paragraphs 14, 20 and 42 above), the Court considers it probable that the police had intentionally ill-treated him with the aim of extracting confessions from him (see and compare with Durmuş Kurt and Others v. Turkey, no. 12101/03, § 30, 31 May 2007). 156. Furthermore, given that both the first applicant and his wife (the second applicant), who was in her eight month of pregnancy at the time, were questioned at about the same time during the day on 21 May 2004 in the same police station, the Court considers plausible the first applicant's allegation about having been implicitly threatened with his wife's torture (see paragraphs 14 and 116 above, as well as paragraph 18 9 below ). The Court reiterates that a threat of conduct prohibited by Article 3, provided it is sufficiently real and immediate, may fall foul of that provision (see Gäfgen v. Germany [GC], no. 22978/05, § 91, ECHR 2010- ... ). The Court recalls that in the Akkoç v. Turkey case, cited above, it took into consideration the psychological impact of threats made against the victim's children in qualifying the acts in question as amounting to torture (§§ 116 and 117). Similarly, it considers that in the present case the threats concerning the torture of the first applicant's wife – who was particularly vulnerable given her advanced stage of pregnancy and who, as the first applicant knew, was also in police custody – must have exacerbated considerably his mental suffering. 157. The Court has already held that subjecting a person to electric shocks is a particularly serious form of ill-treatment capable of provoking severe pain and cruel suffering and therefore falling to be treated as torture, even if it does not result in any long-term health damage (see Polonskiy, cited above, § 124; and Buzilov v. Moldova, no. 28653/05, § 32, 23 June 2009). It sees no reason to apply a different approach to the present case. Moreover, the Court considers that, as suggested by all the circumstances of this case, the ill-treatment sustained by the first applicant was aimed at intimidating and debasing him, driving him into submission and making him confess to a criminal offence. 158. Lastly, but no less importantly, the Court does not lose sight of the disturbing findings – concordant with the first applicant's allegations in the present case – made at the material time, by both the Ukrainian Ombudsman and the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment, that there was a significant risk of torture for those in police custody, especially during questionings aimed at resolving crimes (see paragraphs 142-143 above). 159. Having regard to the severity of the ill-treatment suffered by the first applicant and the surrounding circumstances, the Court finds that he was a victim of very serious and cruel suffering that may be characterised as torture. Accordingly, there has been a violation of Article 3 of the Convention under its substantive limb. 2. Effectiveness of the investigation 160. The first applicant contended that there had been no effective domestic investigation into his allegation of torture by the police. 161. The Government contested that view. They maintained that the effectiveness of the investigation had been verified and confirmed by the courts at two levels of jurisdiction in the course of the first applicant's trial. 162. The Court emphasises that where an individual raises an arguable claim that he has been seriously ill-treated in breach of Article 3, that provision, read in conjunction with the State's general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation (see, among other authorities, Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000 ‑ IV). Thus the authorities must always make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or as the basis for their decisions (see Assenov and Others v. Bulgaria, 28 October 1998, § 103 et seq., Reports of Judgments and Decisions 1998 ‑ VIII). 163. The Court considers that in the present case the authorities did not make adequate efforts to establish what had happened to the first applicant in Pivdenno-Zakhidna Police Station. It was never disputed that he had sustained injuries in police custody. The authorities, however, consistently confined their reasoning that the applicant's complaint was unsubstantiated to finding implausible the allegation that he had been tortured with electric shocks. At the same time, they did not even attempt to clarify the circumstances in which he had in fact been injured. 164. Although the aforementioned omission was admitted and criticised by the domestic authorities on several occasions (see paragraphs 61, 67, 82 and 83 above), it was never remedied. Thus, the Court notes that the first applicant's attempts to reverse the KCPO ruling of 18 June 2004 on its refusal to prosecute the police officers were dismissed under the pretext that the matter would be examined in the context of his own trial (see paragraph 95 above). The Court questions the adequacy of such approach in principle given that the purpose of the criminal proceedings against the applicant was to find him innocent or guilty of the criminal charges levelled against him rather than to attribute responsibility for alleged beatings or afford redress for an alleged breach of Article 3 of the Convention (see Toteva v. Bulgaria (dec.), no. 42027/98, 3 April 2003). The Court observes that the examination by the Ternopil Court of the applicant's allegations of his ill-treatment in police custody was confined to the repeated questioning of the police officers concerned and of the medical experts, who denied that electric shocks had been given to the applicant and submitted that his injuries might have been inflicted by “blunt objects” without giving further explanations. The Court finds it striking that the trial court ignored altogether – as is apparent from its judgment of 31 August 2007 – the alternative medical findings in the case file supporting the first applicant's allegation (see paragraphs 32 and 109 above). As to the subsequent examination of the case by the Supreme Court, the Court cannot but conclude that it was superficial and in apparent disregard of essential documents and facts. In particular, the Supreme Court confined its efforts to analysing the video -recording of the investigative activities in which no injuries were visible on the applicant's body, and this was sufficient for it to find his complaint unsubstantiated. Furthermore, it found that the first applicant “had never referred to any specific persons who had allegedly ill ‑ treated him” and that he “had always replied that he was well when enquiries were made about his health”, although it had been established by that time that he had raised quite specific complaints on numerous occasions naming specific officers (see paragraphs 61, 82 and 113 above), and his injuries sustained in police custody had been officially documented. 165. Overall, the Court concludes that the first applicant was denied an effective investigation of his allegation of ill-treatment by the police. There has therefore been a violation of Article 3 of the Convention under its procedural limb as well. II. ALLEGED VIOLATIONS OF ARTICLE 5 §§ 1, 2, 3 AND 5 OF THE CONVENTION IN RESPECT OF THE FIRST APPLICANT 166. The first applicant complained that his detention from 20 to 26 May 2004 had been unlawful and arbitrary. He further complained that he had not been informed promptly about the reasons for his arrest on 20 May 2004 and that he had not been brought before a judge until the sixth day of his detention. He also complained that his repeated arrests from 22 to 23 November and from 18 to 21 December 2006 respectively had been unlawful, as were the following periods of his detention: from 23 February to 21 March 2007 – as not being covered by any decision; as well as from 14 October 2004 to 5 May 2005 and from 21 March to 31 August 2007 – as being based on unreasoned judicial decisions without any time-limits. Furthermore, the first applicant considered that the overall length of his pre ‑ trial detention could not be regarded as reasonable. Lastly, he complained that the Ukrainian legislation did not envisage the possibility for him to seek compensation for his allegedly unlawful detention. The first applicant relied on Article 5 §§ 1, 2, 3 and 5 of the Convention, which reads as follows: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ... 2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him. 3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial. ... 5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.” A. Admissibility 167. The Government submitted that the first applicant's complaint under Article 5 § 5 of the Convention was to be rejected as being incompatible ratione personae with the Convention provisions, in so far as it concerned the lack of compensation to him for the alleged violations of his rights under paragraphs 2, 3 and 4 of Article 5 of the Convention. They noted in this connection that the first applicant had claimed in substance to be a victim of a violation of paragraph 5 of Article 5 only in conjunction with its paragraph 1 (c), but not in respect of its other provisions. 168. The applicant disagreed, noting that in his application he had relied on paragraph 5 of Article 5 in conjunction with its paragraphs 1-4. 169. The Court reiterates that it views complaints before it as characterised by the facts alleged in them and not merely by the legal grounds or arguments relied on. Being master of the characterisation to be given in law to the facts of the case and having regard to the substance of the first applicant's complaint under Article 5 § 5 of the Convention, the Court decides to examine it only in conjunction with Article 5 § 1 (c) (see Guerra and Others v. Italy, 19 February 1998, § 44, Reports 1998 ‑ I). 170. In the light of such classification, the Government's objection needs be neither upheld nor rejected. 171. The Court notes that these complaints are not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. They must therefore be declared admissible. B. Merits 1. Article 5 § 1 of the Convention 172. The Court notes that the first applicant's complaints under this heading concern several distinct instances or periods of his deprivation of liberty and it will examine them separately. (a) From 2 0 to 26 May 2004 173. The first applicant maintained that his apprehension on 20 May 2004 had not been based on a reasonable suspicion that he had committed an offence. He further noted that his detention from 1 p.m. until 10. 45 p.m on 20 May 2004 had not been documented at all, whereas his subsequent detention classified as administrative had been a mere pretext for keeping him available for questioning in respect of the investigated murder. The first applicant emphasised that even that allegedly artificial pretext ceased to exist on 22 May 2004, when an expert concluded that the substance found on him was not a drug. He further submitted that his administrative detention had been converted into criminal and that he had remained detained as a criminal suspect without a judicial warrant from 23 to 26 May 2004, which he considered to be contrary to the safeguards of Article 29 of the Constitution permitting such detention only in specific urgent cases allegedly not applicable to his situation. 174. The Government submitted that the first applicant had been arrested on 20 May 2004 on suspicion of a drug offence and that his arrest had been in compliance with Article 263 of the Code of Administrative Offences. They noted that he had been held under administrative detention without a prosecutorial or judicial warrant for the three-day period permissible under the aforementioned legal provision, after which he had been released (on 23 May 2004). As regards the subsequent three days of the first applicant's detention (from 23 to 26 May 2004), the Government maintained that they had been based on a reasonable suspicion of his involvement in a murder and had been in compliance with the criminal procedure legislation. 175. The Court reiterates that a “reasonable suspicion” presupposes the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence (see Fox, Campbell and Hartley v. the United Kingdom, 30 August 1990, § 32, Series A no. 182). The object of detention for questioning is to further a criminal investigation by confirming or dispelling suspicions which were the grounds for detention (see Murray v. the United Kingdom, 28 October 1994, § 55, Series A no. 300 ‑ A). However, the requirement that the suspicion must be based on reasonable grounds forms an essential part of the safeguard against arbitrary arrest and detention. Moreover, in the absence of a reasonable suspicion, the arrest or detention of an individual must never be imposed for the purpose of making him confess, testify against others or elicit facts or information which may serve to ground a reasonable suspicion (see Cebotari v. Moldova, no. 3561 5/06, § 48, 13 November 2007). 176. The Court also emphasises that unrecorded detention of an individual is a complete negation of the fundamentally important guarantees contained in Article 5 of the Convention and discloses a grave violation of that provision. The absence of a record of such matters as the date, time and location of detention, the name of the detainee, the reasons for the detention and the name of the person effecting it must be seen as incompatible with the requirement of lawfulness and with the very purpose of Article 5 of the Convention (see Kurt v. Turkey, 25 May 1998, § 125, Reports 1998 ‑ III). 177. Turning to the present case, the Court notes that the only document providing explanations as to the grounds for the first applicant's arrest on 20 May 2004 (prior to his administrative detention) and formulating suspicions on the basis of which the police decided to arrest him, was an internal explanatory note of the arresting officers addressed to their superior, according to which the arrest had been caused by the observation that the applicant had been “walking fast and looking around” and that he had appeared hesitant as to whether to go home or elsewhere (see paragraph 7 above). The Court considers that, firstly, that was not a valid document recording the arrest and, secondly, there was no reasonable suspicion of any crime committed by the first applicant at that stage. 178. As regards the subsequent three - day detention of the first applicant ( from 20 to 23 May 2004), documented by the police as based on an administrative offence suspicion, the Court notes that during that period the first applicant was treated as a suspect in the criminal case concerning the murder of Ms I. He was thus interviewed by the investigator in respect of that murder and confessed to it, and the police conducted searches at his registered and actual places of residence (see paragraphs 35-38 above). Looking beyond the appearances and the language used, and concentrating on the realities of the situation, the Court considers that the applicant's administrative detention was in reality part of his detention on remand under Article 5 § 1 (c) as a criminal suspect in the murder case without, however, safeguarding his procedural rights as a suspect, notably the right to defence (see Kafkaris v. Cyprus [GC], no. 21906/04, § 116, ECHR 2008 ‑ ..., and Doronin v. Ukraine, no. 16505/02, § 55-56, 19 February 2009). In the Doronin case cited above (§ 56), the Court condemned such conduct by the authorities as being incompatible with the principle of legal certainty and arbitrary, and as running counter to the principle of the rule of law. That finding holds true even more in the present case, where, unlike in the case of Doronin, there was no judicial decision regarding the applicant's administrative detention, and the suspicion of the drug offence ceased to exist even formally on 22 May 2004, whilst the applicant spent another day in administrative detention (see paragraphs 11-12 and 129 above). 179. The Court further observes that from 23 to 26 May 2004 the first applicant was detained upon the investigator's order, on suspicion of murder and assault (see paragraphs 39-40 above). The major point of disagreement between the parties on this point concerned the compliance of that period of detention with the domestic legislation. 180. The Court reiterates that the expressions “lawful” and “in accordance with a procedure prescribed by law” in Article 5 § 1 essentially refer back to national law and enshrine the obligation to conform to the substantive and procedural rules thereof. Although it is in the first place for the national authorities, notably the courts, to interpret and apply domestic law, under Article 5 § 1 failure to comply with domestic law entails a breach of the Convention and the Court can and should review whether this law has been complied with (see, among many other references, Benham v. the United Kingdom, 10 June 1996, § 41, Reports 1996 ‑ III, and Assanidze v. Georgia [GC], no. 71503/01, § 171, ECHR 2004 ‑ II). 181. The Court notes that, under Ukrainian legislation, deprivation of liberty without a reasoned court decision was possible only in a limited number of situations defined with sufficient precision. Thus, Article 29 of the Constitution permitted such a measure for a maximum of three days only as a response to an urgent need to prevent or stop a crime (see paragraph 121 above). According to further indications in Articles 106 and 115 of the CCP ( see the reference in paragraph 130 above), an investigator could arrest a person if the latter was caught in flagrante delicto, was pointed out as the offender by eyewitnesses /victims, or had clear traces of the crime on his body or clothing. Having regard to the pre ‑ prepared and standard wording of the first applicant's arrest report in the present case, which did not even mention any of those legally envisaged preconditions for arrest (see paragraph 39 above), as well as noting that by the time the applicant was formally detained as a criminal suspect he had already been in detention without judicial supervision for three days, the Court considers that his deprivation of liberty by the investigator from 23 to 26 May 2004 was in breach of the national legal safeguards and therefore unlawful within the meaning of the Convention. 182. The Court therefore concludes that there has been a violation of Article 5 § 1 of the Convention in respect of the first applicant's detention from 20 to 26 May 2004. (b) From 14 October 2004 to 5 May 2005 and from 21 March to 31 August 2007 183. The first applicant submitted that he had been detained during those periods on the basis of the rulings of the Khmelnytskyy City Court and the Ternopil Court of 14 October 2004 and 21 March 2007, respectively, delivered following the preparatory hearings for the trial, and that, in both cases, the rulings had neither given any reasons nor set any time-limits for his detention. 184. The Government maintained that the trial courts had been obliged under the domestic law to examine the appropriateness of the preventive measure at the preparatory hearing stage and that there was no indication in the present case that they had not fulfilled that obligation. 185. The Court observes that the Ukrainian legislation at the material time did not contain any requirement for a domestic court, when committing a person for trial, to give reasons for changing the preventive measure or for continuing the detention of an accused, or to fix any time-limit when maintaining the detention (see paragraph 137 above). 186. The Court notes that the two periods of the first applicant's detention were based on the preliminary hearing rulings of the Khmelnytskyy City Court and the Ternopil Court of 14 October 2004 and 21 March 2007 respectively. The case-file materials before it contain only the second of the aforementioned rulings (see paragraphs 59 and 106 above). The Court observes that the available ruling failed both to give any reasons for the first applicant's detention and to set any time-limits for it. Having regard to the applicable domestic legislation (see paragraphs 130 and 137 above) and in the absence of any evidence to the contrary, the Court infers that the other ruling in question had addressed the issue of the first applicant's detention in the same manner. 187. The Court considers that the absence of any precise provisions laying down whether – and if so, under what conditions – detention ordered for a limited period at the investigation stage could properly be prolonged at the stage of the court proceedings does not satisfy the test of “foreseeability” of a “law” for the purposes of Article 5 § 1 (see Baranowski v. Poland, no. 28358/95, § 55, ECHR 2000-III). 188. It has already found a violation of Article 5 § 1 of the Convention in many cases where Ukrainian courts extended detention for an indefinite period of time and without giving reasons (see, for example, Yeloyev v. Ukraine, no. 17283/02, §§ 52-55, 6 November 2008; Solovey and Zozulya v. Ukraine, nos. 40774/02 and 4048/03, § 59, 27 November 2008; and Doronin, cited above, § 59, 19 February 2009). Moreover, the Court concluded that this has been a recurrent issue in the case-law against Ukraine stemming from legislative lacunae (see Kharchenko v. Ukraine, no. 40107/02, § 98, 10 February 2011, not yet final). 189. The Court therefore concludes that these two periods of the first applicant's detention were in breach of Article 5 § 1 of the Convention. ( c ) From 22 to 23 November 2006 190. The applicant reiterated his argument in respect of his detention without a reasoned court decision from 23 to 26 May 2004 as equally applicable to his detention from 22 to 23 November 2006 (see paragraph 17 3 above). 191. The Government disagreed, stressing that the prosecutorial supervision of the applicant's arrest by the investigator had been in the applicant's favour and had resulted in his release. 192. Referring to its findings in paragraph 18 1 above, the Court considers that the applicant's detention from 22 to 23 November 2006 was contrary to domestic law and thus in breach of the lawfulness principle enshrined in Article 5 § 1 of the Convention. 193. Accordingly, the Court finds a violation of Article 5 § 1 of the Convention also in respect of this instance of the applicant's deprivation of liberty. ( d ) From 18 to 21 December 2006 194. The applicant maintained that his arrest from 18 to 21 December 2006 (see paragraph 98 above) had been arbitrary. 195. The Government submitted that the first applicant had been remanded in custody under a judicial decision in compliance with the legislation on preventive measures in criminal proceedings. 196. The Court emphasises that in order for deprivation of liberty to be considered free from arbitrariness within the meaning of Article 5 § 1 of the Convention, it does not suffice that this measure is executed in conformity with national law; it must also be necessary in the circumstances (see Nešťák v. Slovakia, no. 65559/01, § 74, 27 February 2007; and Khayredinov v. Ukraine, no. 38717/04, §§ 27-28, 14 October 2010). 197. Regarding the present case, the Court notes that the Khmelnytskyy City Court decided on 18 December 2006 to change the preventive measure imposed on the applicant from an undertaking not to abscond to remand in custody, for the following three reasons: gravity of the charges, risk of absconding and risk of influencing witnesses (see paragraph 98 above). None of those reasons appears valid. The gravity of the charges had not changed significantly, being limited to reclassification on 30 November 2006 of the actions of which the applicant was suspected, without any new facts or circumstances being revealed. As to the stated risk of absconding, neither the prosecutor nor the courts referred to any examples of the applicant's behaviour, while under the undertaking not to abscond, which could indicate such a risk. Finally, the witnesses'alleged fears for their safety were apparently confined to their impression about being followed by some unspecified persons and were not based on any evidence of the first applicant's involvement (see paragraph 99 above). On the other hand, the courts made no assessment of the arguments advanced by the applicant in favour of his release pending trial, such as his frail health, or family and personal situation, all of which were supported by documentary evidence. 198. In the light of the foregoing, the Court considers that in the circumstances of the present case the domestic authorities failed to advance comprehensive reasoning to justify the first applicant's deprivation of liberty from 18 to 21 December 2006, which therefore cannot be regarded as being free from arbitrariness. 199. Accordingly, the Court finds that there has been a violation of Article 5 § 1 of the Convention on that account as well. ( e ) From 23 February to 2 1 March 2007 200. The first applicant submitted that his detention during this period had not been covered by any decision and was therefore unlawful. 201. The Government disagreed, noting that the impugned detention had been in compliance with the domestic legislation. 202. The Court observes that during the said period, which indeed does not appear to have been covered by any decision, the pre-trial investigation in the applicant's case was declared complete and the case was sent by the prosecution authorities to a court and later transferred to another court (see paragraphs 103-106 above). 203. The Court notes that while the relevant domestic law regulated the procedural steps in committal proceedings, it did not set clear rules as to by what authority, on what grounds and for what term the detention of the accused could be extended (see Solovey and Zozulya, cited above, § 72). 204. The Court has already examined and found a violation of Article 5 § 1 of the Convention in many cases concerning the practice of holding defendants in custody solely on the basis of the fact that a bill of indictment has been submitted to the trial court. It has held that the practice of keeping defendants in detention without a specific legal basis or clear rules governing their situation – with the result that they may be deprived of their liberty for an unlimited period without judicial authorisation – is incompatible with the principles of legal certainty and protection from arbitrariness, which are common threads throughout the Convention and the rule of law (see, for example, Yeloyev, cited above, §§ 50-51, with further references). This problem, which has been found to be of the structural nature in Ukraine (see Kharchenko, cited above, §§ 98 and 101), has also manifested itself in the present case. 205. The Court therefore concludes that the applicant's detention during this period was not in accordance with Article 5 § 1 of the Convention and finds a violation of that provision. 2. Article 5 § 2 of the Convention 206. The applicant submitted that he had not received any information about the grounds for his arrest on 20 May 2004 for several hours, whereas the administrative detention report subsequently produced confined those grounds to a mere reference to a legal provision which did not mean anything to him. Lastly, the applicant insisted that his administrative detention had been based on fictitious grounds and had in fact been a pretext for questioning him as a suspect in the criminal investigation into a murder. 207. The Government disagreed. They noted that the applicant had been arrested on suspicion of illegal drug possession and that the police report in that regard had been sufficiently clear. 208. The Court reiterates that Article 5 § 2 of the Convention contains the elementary safeguard that any person arrested should know why he is being deprived of his liberty. By virtue of this provision any person arrested must be told, in simple, non- technical language that he can understand, the essential legal and factual grounds for his arrest, so as to be able, if he sees fit, to apply to a court to challenge its lawfulness (see Fox, Campbell and Hartley, cited above, § 40). 209. As regards the present case, the Court has already found in the context of its examination of the first applicant's complaints under Article 5 § 1 of the Convention that there was no clearly announced suspicion against him at the time of his arrest on 20 May 2004 and that he was treated as a criminal suspect in a murder case while being formally detained on suspicion of an administrative offence (see paragraphs 17 7 -17 8 above). Furthermore, the Court observes that the police report on the first applicant's administrative detention merely referred to a legal provision as a ground for the detention, and there is no indication that more comprehensive information was provided to the applicant verbally ( for the facts see paragraph 9 above; and for case-law where the Court has considered the bare indication of a legal provision as a basis for the arrest to be insufficient for the purposes of Article 5 § 2 of the Convention, see Fox, Campbell and Hartley, cited above, § 41). 210. It is not discernible from these circumstances how the first applicant could have been aware of the factual and legal grounds for his detention. On the contrary, he must consequently have been left in a state of uncertainty and confusion as to why he had been deprived of his liberty on 20 May 2004. 211. It follows that there has been a violation of Article 5 § 2 of the Convention in the present case. 3. Article 5 § 3 of the Convention (a) The right to “be brought promptly before a judge” 212. The first applicant contended that the six-day delay in bringing him before a judge following his arrest on 20 May 2004 was not compatible with the aforementioned right. 213. The Government stressed that on 20 May 2004 the applicant had been arrested on suspicion of an administrative offence, and that the legal procedure for that type of arrest did not require that he be brought before a judge. 214. The Court reiterates that prompt judicial control is an essential feature of the guarantee embodied in Article 5 § 3, which is intended to minimise the risk of arbitrariness and to secure the rule of law, one of the fundamental principles of a democratic society (see Brogan and Others v. the United Kingdom, 29 November 1988, § 58, Series A no. 145 ‑ B). While promptness has to be assessed in each case according to its special features (see, among other authorities, Aquilina v. Malta [GC], no. 25642/94, § 48, ECHR 1999 ‑ III), the strict time constraint imposed by this requirement of Article 5 § 3 leaves little flexibility in interpretation, otherwise there would be a serious weakening of a procedural guarantee to the detriment of the individual and the risk of impairing the very essence of the right protected by this provision (see McKay v. the United Kingdom [GC], no. 543/03, § 33, ECHR 2006 ‑ X). 215. In the present case, the Court considers, in the light of its findings in paragraphs 17 7-179 and 182 above, that the first applicant's detention within the meaning of Article 5 § 1 (c) of the Convention commenced on 20 May 2004 and was not subjected to any judicial scrutiny until 26 May 2004. There is no objective justification for that delay. Moreover, the Court has established that during the aforementioned period the first applicant was detained in an unlawful and arbitrary manner and suffered serious ill ‑ treatment at the hands of the police (see paragraphs 15 4, 15 9 and 18 2 above). Prompt judicial control might have prevented all that from happening, but there was none for six days, which the Court considers an unacceptably long time. 216. The Court therefore finds a violation of Article 5 § 3 of the Convention in respect of the first applicant's right to “be brought promptly before a judge”. (b) The right to “trial within a reasonable time or to release pending trial” 217. The first applicant maintained that the overall length of the periods of his pre-trial detention from 20 May 2004 to 5 May 2005 and from 18 December 2006 to 31 August 2007 was unreasonable. 218. The Government considered that the first applicant's administrative detention from 20 to 23 May 2004 had to be excluded from the period to be taken into consideration for the purposes of Article 5 § 3 of the Convention (from 23 May 2004 to 5 May 2005). In the Government's view, the length of that period was not unreasonable given the seriousness of the charges against the applicant, the complexity of the case, the amount of the inherent investigation work, and the diligence demonstrated by the investigation authorities and the trial court. They also noted that during the aforementioned period the first applicant had never requested a change in the preventive measure. As regards the applicant's detention from 18 December 2006 to 31 August 2007, the Government submitted that, on the one hand, it had been based on adequate and sufficient grounds, and, on the other hand, the competent authorities had been dealing with the case with due diligence. 219. The Court reiterates that the issue of whether a period of detention is reasonable cannot be assessed in abstracto. Whether it is reasonable for an accused to remain in detention must be assessed in each case according to its special features. Continued detention may be justified in a given case only if there are clear indications of a genuine public interest which, notwithstanding the presumption of innocence, outweighs the right to liberty (see Ječius v. Lithuania, no. 34578/97, § 93, ECHR 2000 ‑ IX). The persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the validity of the continued detention. However, after a certain lapse of time it does not in itself justify deprivation of liberty and the judicial authorities should give other grounds for continued detention (see Jabłoński v. Poland, no. 33492/96, § 80, 21 December 2000). Those grounds, moreover, should be expressly mentioned by the domestic courts, and the arguments brought for and against release must not be “general and abstract” (see Iłowiecki v. Poland, no. 27 504/95, § 61, 4 October 2001, and Smirnova v. Russia, nos. 46133/99 and 48183/99, § 63, ECHR 2003-IX). 220. Having regard to the Court's considerations and findings in paragraphs 17 2 -20 5 above, it considers that the periods to be taken into consideration were from 20 May 2004 to 5 May 2005 and from 18 December 2006 to 31 August 2007 and lasted in total for one year and eight months (see, for the calculation approach, Isayev v. Russia, no. 20756/04, § 144, 22 October 2009). 221. The Court notes that Article 5 § 3 of the Convention forms a whole with Article 5 § 1 (c) and that these two provisions must be read in conjunction with each other (see Smirnova, cited above, § 56, and Ciulla v. Italy, 22 February 1989, § 38, Series A no. 148). Thus, in the present case, the Court has already examined certain periods of the first applicant's detention from the angle of Article 5 § 1 (c) of the Convention, namely: the period from 14 October 2004 to 5 May 2 005 and from 21 March to 31 August 2007, being based on judicial decisions without giving reasons or setting time-limits for the detention, which, in its turn, was not contrary to the domestic law; the applicant's repeated remand in custody on 1 8 December 2006 without due justification; and from 23 February to 21 March 2007, being a period not covered by any decision (see paragraphs 18 9, 19 9 and 20 5, respectively, above). 222. To supplement its aforementioned findings under Article 5 § 1 (c), the Court will assess whether the first applicant's continued detention can be considered reasonable within the meaning of Article 5 § 3 of the Convention. 223. It notes that, as regards the first term complained of (from 20 May 2004 to 5 May 2005), the Khmelnytskyy City Court, in its rulings of 26 May and 20 July 2004, justified the first applicant's continued detention by relying, in a general and abstract manner, on the seriousness of the charges against him and the inherent risk of his absconding or hindering the investigation if at large. It did not consider the applicant's personality or any other specific facts regarding his situation which could have corroborated or, by contrast, dispelled those fears. 224. As regards the second term in question (from 18 December 2006 to 31 August 2007), it appears from the documents on the domestic proceedings at the Court's disposal that during that period the Ukrainian courts extended the applicant's pre-trial detention twice in December 2006 and January 2007 (with the exact dates being illegible in the available copies). The Court notes that it has found flawed the reasoning advanced by the domestic courts for the first applicant's re-arrest on 18 December 2006 (see paragraphs 19 8-199 above). It further observes that their reasoning for continuing his detention thereafter did not evolve to meet the standards of Article 5 § 3 of the Convention. 225. The Court therefore concludes that there has been a violation of Article 5 § 3 of the Convention on account of the insufficiency of the grounds for the first applicant's continued pre-trial detention during the above- mentioned periods. 4. Article 5 § 5 of the Convention 226. The first applicant contended that he had no enforceable right to compensation in respect of the alleged breaches of Article 5. 227. The Government submitted that, in the absence of recognition by the domestic courts of the unlawfulness of the applicant's detention as alleged, his compensation claim had been without basis. 228. The Court reiterates that Article 5 § 5 guarantees an enforceable right to compensation to those who have been the victims of arrest or detention in contravention of the other provisions of Article 5 (see Steel and Others v. the United Kingdom, 23 September 1998, § 81, Reports 1998 ‑ VII). 229. In the present case the Court has found several violations of Article 5 § 1 in conjunction with which the present complaint is to be examined (see paragraphs 18 2, 18 9, 19 3, 19 9 and 20 5, as well as paragraph 16 9, above). It follows that Article 5 § 5 of the Convention is applicable. The Court must therefore establish whether Ukrainian law afforded or now affords the first applicant an enforceable right to compensation for the breaches of Article 5 § 1 of the Convention in his case. 230. The Court observes that it has found violations of Article 5 § 1 on account of the first applicant's detention: from 20 to 26 May 2004; from 14 October 2004 to 5 May 2005; from 22 to 23 November 2006; upon his re-arrest from 18 to 21 December 2006; as well as his detention from 23 February to 31 August 2007 ( follow the references given in paragraph 22 9 above). 231. The Court notes that the issue of compensation for unlawful detention is regulated in Ukraine by the Law “On the Procedure for the Compensation of Damage caused to Citizens by the Unlawful Actions of Bodies in charge of Operational Enquiries, Pre-trial Investigation Authorities, Prosecutors or Courts” (“the Compensation Act” – see paragraphs 140-141 above). Before its amendments of 1 December 2005, it provided for compensation for unlawful detention only in case of the ultimate acquittal of the detainee or termination of the criminal proceedings against him/her on exonerative grounds. Following those amendments, the right to such compensation also arose where the unlawfulness of the detention was established by a judicial decision. 232. The Court observes that at the time of the first period of the applicant's detention found to be unlawful (from 20 to 26 May 2004) the Compensation Act was not applicable to his situation unless the charges against him were dropped. As regards his detention from 14 October 2004 to 5 May 2005, from 23 February to 31 August 2007 and his re-arrest on 18 December 2006, they were not contrary to the domestic law, and the first applicant would therefore have had no prospect of their recognition as unlawful by the Ukrainian courts. Lastly, as to the applicant's detention from 22 to 23 November 2006, the courts found it to be lawful, thus depriving the applicant of any basis for a compensation claim in that regard. 233. It follows that in the first applicant's case the Compensation Act did not provide for an enforceable right to compensation. It does not appear that such a right was or is secured under any other provision of the Ukrainian legislation, given the absence of any legally envisaged procedure for bringing proceedings to seek compensation for the deprivation of liberty found to be in breach of one of the other paragraphs by the Strasbourg Court. 234. The Court concludes that the first applicant did not have an enforceable right to compensation for his unlawful detention, as required by Article 5 § 5 of the Convention. There has therefore been a violation of that provision. III. ALLEGED VIOLATIONS OF ARTICLE 5 § 4 OF THE CONVENTION IN RESPECT OF THE FIRST APPLICANT 235. The first applicant also raised a number of complaints under Article 5 § 4 of the Convention which reads as follows: “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” A. The parties'submissions 236. The first applicant denied that any effective procedure had been available to him for judicial review of the lawfulness of his detention. He contended that there had been violations of Article 5 § 4 of the Convention on the following grounds: (a) the alleged procedural unfairness of the court hearing of 18 December 2006 following which he had been remanded in custody instead of the earlier measure, an undertaking not to abscond (namely, no timely access to the prosecutor's application or other materials in the case file essential for his defence); (b) the same issues alleged in respect of the hearing of 21 December 2006, further exacerbated by the fact that it had taken place in the first applicant's absence; (c) the lack of any possibility for the first applicant to obtain judicial review of the lawfulness of his detention during the pre-trial investigation; and (d) the lack of any legally-enshrined guarantees of speedy judicial review of the lawfulness of his pre-trial detention during the judicial proceedings. 237. The Government disagreed. They noted that it had been open to the applicant to challenge on appeal the court rulings ordering his detention delivered before the trial, but that neither he nor his lawyer had done so. Furthermore, the first applicant had not been limited in his right to introduce requests for release during the judicial proceedings, but had refrained from doing so for unknown reasons. The Government also maintained that the courts had provided adequate judicial review of the lawfulness of the first applicant's detention where they had had that duty under the criminal procedure legislation (namely, during the preparatory hearings and when examining the prosecutor's applications for the detention extension). 238. In his observations in reply to those of the Government, the first applicant further submitted that in those cases where the domestic courts had examined the lawfulness of his detention following the prosecutor's applications, they had failed to make any assessment of the arguments in favour of his release. B. The Court's assessment 1. General principles 239. The Court reiterates that the purpose of Article 5 § 4 is to assure to persons who are arrested and detained the right to judicial supervision of the lawfulness of the measure to which they are thereby subjected (see, mutatis mutandis, De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, § 76, Series A no. 12, and Ismoilov and Others v. Russia, no. 2947/06, § 145, 24 April 2008). A remedy must be made available during a person's detention to allow that person to obtain speedy judicial review of the lawfulness of the detention, capable of leading, where appropriate, to his or her release. The accessibility of a remedy implies, inter alia, that the circumstances voluntarily created by the authorities must be such as to afford applicants a realistic possibility of using the remedy (see, mutatis mutandis, Čonka v. Belgium, no. 51564/99, §§ 46 and 55, ECHR 2002 ‑ I). 240. The requirement of procedural fairness under Article 5 § 4 does not impose a uniform, unvarying standard to be applied irrespective of the context, facts and circumstances. Although it is not always necessary that an Article 5 § 4 procedure be attended by the same guarantees as those required under Article 6 for criminal or civil litigation, it must have a judicial character and provide guarantees appropriate to the type of deprivation of liberty in question (see A. and Others v. the United Kingdom [GC], no. 3455/05, § 203, ECHR 2009 ‑ ..., with further references). The possibility for a detainee to be heard either in person or through some form of representation features among the fundamental guarantees of procedure applied in matters of deprivation of liberty (see Kampanis v. Greece, 13 July 1995, § 47, Series A no. 318 ‑ B). Furthermore, although the Convention does not compel the Contracting States to set up a second level of jurisdiction for the examination of the lawfulness of detention, “a State which institutes such a system must in principle accord to the detainees the same guarantees on appeal as at first instance” (see, for example, Navarra v. France, 23 November 1993, § 28, Series A no. 273 ‑ B). 241. Lastly, the Court stresses that the question whether a person's right under Article 5 § 4 has been respected has to be determined in the light of the circumstances of each case ( see Rehbock v. Slovenia, no. 29462/95, § 84, ECHR 2000 ‑ XII). 2. Application in the present case 242. The Court will examine the first applicant's complaints in the order presented in his application. (a) Alleged unfairness of the hearing of 18 December 2006 243. The Court observes that this complaint concerns the following two aspects: firstly, the judicial review of the first applicant's detention from 22 to 23 November 2006, which took place at the hearing in question, and, secondly, his repeated remand in custody. The Court notes in respect of the first-mentioned aspect that, since the purpose of the remedy required by Article 5 § 4 is to facilitate a detained person's release (see paragraph 23 9 above), it was no longer applicable to the applicant's situation following his release on 23 November 2006 prior to any judicial control (see Fox, Campbell and Hartley, cited above, § 45). As to the second-mentioned aspect, the Court notes that the judicial review complained of was incorporated in the applicant's initial placement in pre-trial detention on 18 December 2006, which the Court has already examined from the angle of Article 5 § 1 of the Convention (see paragraph 19 4 -19 9 above). In any event, the Court notes that the applicant failed to raise the allegation about his lack of timely access to the case file, which is his major argument in support of the procedural unfairness allegation, before the appellate court (see also paragraph 24 4 below). Accordingly, he cannot be considered to have exhausted the domestic remedies, and this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention. (b) Alleged unfairness of the hearing of 21 December 2006 244. In so far as the first applicant complained about the alleged procedural unfairness of the hearing of the Khmelnytskyy Regional Court of 21 December 2006, the Court observes that the proceedings in question were those at appellate level in respect of the ruling of the Khmelnytskyy City Court of 18 December 2006. As to the applicant's allegation about the limited possibility of the defence to study the case file, the Court observes that although the applicant lodged before this Court the same complaint in respect of the first-instance proceedings, neither he nor any of his representatives had mentioned that grievance in their appeals against the ruling of 18 December 2006 (see paragraphs 99 and 24 3 above). The Court therefore finds them unsubstantiated. Regarding the examination of the case by the Khmelnytskyy Regional Court in the first applicant's absence, the Court notes that, in principle, it is permissible for the court of appeal reviewing a detention order issued by a lower court to examine only the detainee's lawyer, subject to sufficient procedural guarantees at the hearing before the first-instance court (see Lebedev v. Russia, no. 4493/04, § 114, 25 October 2007). Given that the first applicant had personally participated in the first-instance proceedings on 18 December 2006 (see paragraph 98 above) and noting that he did not allege any concrete matters which would have made his personal presence in the appellate-level hearing indispensable, the Court finds that his absence from that hearing was not incompatible with the Article 5 § 4 safeguards. 245. The Court therefore rejects this complaint as being manifestly ill-founded under Article 35 §§ 3 (a) and 4 of the Convention. (c) Alleged inability of the first applicant to obtain judicial review of the lawfulness of his detention during the pre-trial investigation 246. The Court notes that the first applicant has not provided any information or documents showing that he challenged on appeal the court rulings on his remand in custody and on the extension of his detention, of 26 May and 20 July 2004 respectively, although such a possibility was envisaged by the national legislation ( see the case referred to in paragraph 130 above ). The Court cannot examine in abstracto the quality and speediness of a judicial review which was not sought by the applicant and did not therefore take place (see Shalimov v. Ukraine, no. 20808/02, § 57, 4 March 2010). 247. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. (d) Alleged inability of the first applicant to obtain speedy judicial review of the lawfulness of his detention during the judicial proceedings 248. The Court notes that indeed at that stage of the proceedings the judicial review of the first applicant's detention (still considered pre-trial, before the delivery of a judgment on the merits ) was dependent on the schedule of hearings in the case, as the Code of Criminal Procedure did not differentiate between requests for release and any other applications examined in the course of the trial hearings. The Court has examined this issue in a number of other cases against Ukraine and found it to be a recurring problem due to lack of clear and foreseeable provisions that would provide for the procedure during the trial stage which is compatible with requirements of Article 5 § 4 of the Convention (see Molodorych v. Ukraine, cited above, § 108; and Kharchenko v. Ukraine, cited above, § 86). 249. It follows that there has been a violation of Article 5 § 4 of the Convention in the present case. IV. ALLEGED VIOLATIONS OF ARTICLE 6 § § 1 AND 3 (C) OF THE CONVENTION IN RESPECT OF THE FIRST APPLICANT'S PRIVILEGE AGAINST SELF-INCRIMINATION AND RIGHT TO DEFENCE 250. The first applicant complained that he had been convicted on the basis of statements given under torture and without the assistance of a lawyer while being held in police custody. He relied on Article 6 § § 1 and 3 (c) of the Convention, which in so far as relevant provides: “In the determination ... of any criminal charge against him, everyone is entitled to a fair ... hearing ... by [ a ] ... tribunal ... 3. Everyone charged with a criminal offence has the following minimum rights: ... (c) to defend himself in person or through legal assistance of his own choosing ...” A. Admissibility 251. The Government submitted that the above complaints concerned the first applicant's confession statements before the commencement of the criminal proceedings against him and were therefore incompatible ratione materiae with Article 6 § 1 of the Convention. 252. The first applicant maintained that at the time he had made the confessions complained of he had been treated de facto as a criminal suspect and had therefore been subject to the protection guaranteed by Article 6 § 1. 253. The Court notes that the time from which Article 6 applies in “criminal” matters depends on the circumstances of the case. The prominent place held in a democratic society by the right to a fair trial prompts the Court to prefer a “substantive”, rather than a “formal”, conception of the “charge” contemplated by Article 6 § 1 (see Šubinski v. Slovenia, no. 19611/04, § 62, 18 January 2007). 254. As regards the present case, the Court has already upheld the above assertion of the first applicant in the context of the examination of his complaint under Article 5 § 1 (see paragraph 17 8 above). It therefore concludes that Article 6 § 1 of the Convention was applicable to him from the time of his arrest by the police on 20 May 2004. 255. Accordingly, the Court rejects the Government's objection. It further notes that theses complaints are neither manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds. They must therefore be declared admissible. B. Merits 1. The parties'submissions 256. The first applicant maintained that he had been coerced into confessing to the murder and attempted robbery of Ms I. in the absence of any legal assistance. He stressed the serious nature and degree of the coercion applied to him, considering it to amount to torture and noted that the confessions in question had had a considerable probative value in securing his conviction. The first applicant stressed that his legal representation had been mandatory under the domestic legislation from the time of his arrest, given the possibility of a life sentence. He further submitted that the contracted lawyer had not had regular access to him, and that he had continued to fear ill-treatment by the police even after being legally represented. 257. The Government disagreed. They submitted that the first applicant had been questioned in a lawyer's presence on 23 May 2004 – from his very first interrogation as a suspect in the criminal proceedings – and thereafter, whereas his earlier confessions had not been decisive for his trial. The Government emphasised that the admissibility of evidence was primarily a matter for regulation under national law, and that the applicant had been given an opportunity to challenge the evidence against him in adversarial proceedings with the benefit of legal advice. They noted that his grievances in that regard had been duly verified and dismissed as unsubstantiated by the domestic courts in the course of his trial. 2. The Court's assessment (a) The right not to incriminate oneself 258. As regards the use of evidence obtained in breach of the right to silence and the privilege against self-incrimination, the Court emphasises that these are generally recognised international standards which lie at the heart of the notion of fair procedures under Article 6 of the Convention. Their rationale lies, inter alia, in the protection of the accused against improper compulsion by the authorities, thereby contributing to the avoidance of miscarriages of justice and to the fulfilment of the aims of Article 6. The right not to incriminate oneself, in particular, presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused (see Saunders v. the United Kingdom, 17 December 1996, § 68, Reports 1996 ‑ VI). 259. Although the admissibility of evidence is, as a matter of principle, a prerogative of domestic courts, with the role of this Court being limited to assessing the overall fairness of the proceedings, particular considerations apply to evidence recovered by a measure found to violate Article 3 of the Convention. Thus, according to the Court's case-law, admission of statements obtained as a result of torture as evidence to establish the relevant facts in criminal proceedings renders the proceedings as a whole unfair irrespective of their probative value and of whether their use was decisive in securing the defendant's conviction (see Gäfgen v. Germany, cited above, § 166, with further references). 260. The Court has found in the present case that the first applicant's initial confessions had been extracted from him by ill-treatment amounting to torture within the meaning of Article 3 of the Convention (see paragraphs 154 -15 9 above). It also notes that the domestic courts admitted those confessions as evidence in his trial (see paragraph 109 above). In the light of the principles of its case-law as outlined above, the Court considers that this extinguished the very essence of the first applicant's privilege against self-incrimination irrespective of the weight of the impugned confessions in the evidential basis for his conviction and regardless of the fact that he had confessed again several times during the investigation. 261. Accordingly, there has been a violation of Article 6 § 1 of the Convention in this respect. (b) The right to defence 262. The Court emphasises that, although not absolute, the right of everyone charged with a criminal offence to be effectively defended by a lawyer, assigned officially if need be, is one of the fundamental features of a fair trial ( see Krombach v. France, no. 29731/96, § 89, ECHR 2001 ‑ II). As a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right (see Salduz v. Turkey [GC], no. 36391/02, § 55, 27 November 2008). The right to defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction (ibid). 263. The Court has consistently viewed early access to a lawyer as a procedural guarantee of the privilege against self-incrimination and a fundamental safeguard against ill-treatment, noting the particular vulnerability of an accused at the early stages of the proceedings when he is confronted with both the stress of the situation and the increasingly complex criminal legislation involved. Any exception to the enjoyment of this right should be clearly circumscribed and its application strictly limited in time. These principles are particularly called for in the case of serious charges, for it is in the face of the heaviest penalties that respect for the right to a fair trial is to be ensured to the highest possible degree by democratic societies (see Salduz, cited above, § 54). 264. Although it is not known in the present case when exactly the applicant became legally represented, it transpires from the facts of the case and is not disputed by the parties that it was not before 23 May 2004. The Court emphasises that by having formally placed the applicant in administrative detention but in fact treating him as a criminal suspect, the police deprived him of access to a lawyer, which would have been obligatory under the Ukrainian legislation had he been charged with the offence of murder committed by a group of persons and/or for profit, an offence in respect of which he was in fact being questioned. 265. The Court notes that the first applicant confessed several times to assault and murder at the early stage of his interrogation when he was not assisted by counsel, and was undoubtedly affected by the restrictions on his access to a lawyer in that his confessions to the police were used for his conviction (see Salduz, cited above, § 58). Although the first applicant repeated his confessions in the lawyer's presence, the Court considers that the early restrictions of his defence rights were not remedied in the course of the trial, as the courts failed to give an adequate response to the first applicant's complaint of ill-treatment. 266. Furthermore, as admitted by the domestic authorities, once legally represented the first applicant did not enjoy unimpeded access to his contracted lawyer (see paragraphs 58 and 84 above). 267. The Court therefore concludes that there has been a violation of Article 6 § 3 (c) of the Convention. V. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION IN RESPECT OF THE FIRST APPLICANT ON ACCOUNT OF THE REASONING OF THE DOMESTIC COURTS'JUDGMENTS, BY WHICH HE WAS CONVICTED 268. The first applicant complained that his conviction by the Ternopil Court and the Supreme Court's ruling upholding that judgment had been manifestly ill-reasoned. A. Admissibility 269. The Court notes that this complaint is neither manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 270. The first applicant submitted that the domestic courts had failed to make any assessment of the circumstances in which the statements of Mr K. as the key witness for the prosecution had been obtained, even though the defence had consistently referred to specific facts and documents suggesting that the investigation had resorted to coercion of that witness. 271. The Government contended that the judicial decisions convicting the first applicant had been well- reasoned. They noted in particular that the statements of the witness Mr K. had been duly assessed and admitted in evidence. The Government stressed that the first applicant, having been legally represented and having participated personally in the hearings of the courts at two levels of jurisdiction, had an adequate opportunity to contest that evidence. 272. The Court notes that, according to its established case-law reflecting a principle linked to the proper administration of justice, judgments of courts and tribunals should adequately state the reasons on which they are based. The extent to which this duty to give reasons applies may vary according to the nature of the decision and must be determined in the light of the circumstances of the case (see García Ruiz v. Spain [GC], no. 30544/96, § 26, ECHR 1999 ‑ I, with further references). 273. The Court also reiterates that its duty, according to Article 19 of the Convention, is to ensure the observance of the engagements undertaken by the Contracting States to the Convention. In particular, it is not its function to deal with errors of fact or of law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. While Article 6 guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence as such, which is therefore primarily a matter for regulation under national law (see Schenk v. Switzerland, 12 July 1988, § 45-46, Series A no. 140, and Teixeira de Castro v. Portugal, 9 June 1998, § 34, Reports 1998 ‑ IV). It is not the role of the Court to determine, as a matter of principle, whether particular types of evidence – for example, unlawfully obtained evidence – may be admissible or, indeed, whether the applicant was guilty or not. The question which must be answered is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair (see Allan v. the United Kingdom, no. 48539/99, § 42, ECHR 2002 ‑ IX). 274. In that context, regard must also be had, in particular, to whether the applicant was given the opportunity of challenging the authenticity of the evidence and of opposing its use. The quality of the evidence is also taken into account, including whether the circumstances in which it was obtained cast doubts on its reliability or accuracy (see Jalloh v. Germany [GC], no. 54810/00, § 96, ECHR 2006 ‑ IX). 275. The Court observes that, in the present case, in their finding of the first applicant's guilt the domestic courts relied on the statements of Mr K., whom they considered to be a key witness in the case (see paragraphs 63 and 81 above). The first applicant alleged during his trial that Mr K. had incriminated him under pressure from the police, which Mr K. himself denied in the hearing. On the surface, the procedural safeguards appear to have been respected. Having regard to the particular circumstances of this case, the Court considers, however, that the first applicant was not allowed an adequate opportunity to challenge the probative value of those statements. 276. The Court thus observes that the first applicant referred to specific facts and documents showing that at the time of his questioning by the investigator Mr K. (a taxi - driver without any criminal record or history of other offences mentioned in the case-file materials) had been in administrative detention on account of a drug -related offence. As contended by the first applicant (and confirmed by the Khmelnytskyy City Court in its judgment of 5 May 2005), the statements of Mr K. changed during that particular period of time to the first applicant's disadvantage. The applicant also submitted to the trial court an audiotape of a conversation he had had with Mr K., in which the latter had allegedly admitted to having slandered the first applicant under police pressure (see paragraph 112 above). 277. The Court finds the responses of both the first-instance court and the Supreme Court to those arguments to be strikingly scant and inadequate. While dismissing as unfounded the first applicant's allegations about pressure on the witness and noting that “there [was] no information from which it could be discerned [otherwise] ” (see paragraphs 108 and 114 above), the courts failed to comment on the undisputed fact of the administrative detention of Mr K. and ignored the existence of the audiotape referred to by the applicant even though it had been included in the case-file materials ( see paragraph 112 above). 278. By way of contrast, the Court refers to its decision of 16 March 2000 in the case of Camilleri v. Malta ( no. 51760/99 ), in which it rejected as manifestly ill-founded the applicant's complaint that his conviction had been based on an incriminating statement by his cellmate because: firstly, the domestic courts had given detailed reasons for its decision to attach weight to the accusatory statement of that key witness; secondly, it was established that the statement in question had been given of the witness'own volition; and, lastly, it had remained consistent throughout the investigation. 279. Turning to the present case, the Court notes that : firstly, the courts decided to attach weight to the accusatory statements of Mr K. in disregard of specific and pertinent facts with a potential to undermine their reliability and accuracy; secondly, it was never established in a convincing manner that Mr K. had made those statements of his own free will – the fact that he had pursued that approach in the court might merely have resulted from continuing intimidation; and, lastly, the statements of Mr K. became consistently unfavourable for the first applicant from the time of his questioning, coinciding with his own detention. 280. The Court has held, in the context of its examination of the fairness of civil proceedings, that by ignoring a specific, pertinent and important point of the applicant, the domestic courts fall short of their obligations under Article 6 § 1 of the Convention (see Pronina v. Ukraine, no. 63566/00, § 25, 18 July 2006). It observes a similar issue in the present case, where that requirement, although being even more stringent in the context of criminal proceedings, was not met. 281. Having regard to the above considerations, the Court concludes that there has been a violation of Article 6 § 1 of the Convention in this regard. VI. OTHER ALLEGED VIOLATIONS OF THE CONVENTION IN RESPECT OF THE FIRST APPLICANT 282. The first applicant raised a general complaint about the allegedly inadequate conditions of his detention in the Khmelnytskyy ITT from 21 May to 22 June 2004. Referring to the allegedly unlawful and unjustified transfer of his case for trial to the Ternopil Court, he further complained that he had not been tried and convicted by “an independent and impartial tribunal established by law” as required by Article 6 § 1 of the Convention. The first applicant also complained under the same provision that the length of the criminal proceedings against him had not been reasonable. He next complained under Article 6 § 2 that the Shepetivka Court and the Ternopil Court violated the principle of the presumption of innocence by their rulings of 10 July and 4 October 2006, having allegedly, de facto, found him guilty while remitting the case for additional investigation. The first applicant further alleged a violation of Article 18 of the Convention in respect of his arrests on 22 November and 18 December 2006, contending that their actual purpose had been retaliation on the part of the authorities for his attempts to have criminal proceedings brought against the police officers. Lastly, he invoked Articles 8 and 13 of the Convention, without being more specific. 283. However, in the light of all the material before it, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the provisions on which the applicant relied. 284. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. VII. ALLEGED VIOLATIONS OF THE CONVENTION IN RESPECT OF THE SECOND APPLICANT A. Article 3 of the Convention 285. The second applicant complained that on 21 May 2004 she had been subjected to threats and humiliations by the police, which had amounted to degrading treatment contrary to Article 3 of the Convention given her condition at that time (being in the eighth month of pregnancy). 286. The Court reiterates that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 (see Ireland v. the United Kingdom, cited above, § 162). The assessment of this minimum is relative and depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim. 287. Having regard to all those factors in the present case, the Court observes that, while the second applicant's questioning in the police station might have been a source of stress and anxiety for her, it cannot be said to have reached the threshold proscribed by Article 3 of the Convention. 288. Consequently, this part of the application must be rejected under Article 35 §§ 3 (a) and 4 of the Convention as being manifestly ill-founded. B. Article 5 § 1 of the Convention 289. The second applicant also complained that on 21 May 2004 the police had deprived her of liberty for about four hours in the absence of any grounds or the safeguards envisaged by Article 5 § 1 of the Convention. 290. The Court notes that the second applicant failed to challenge the refusal of the prosecution authorities to initiate a criminal investigation into the matter – if a formal decision had been taken in that regard, which is not clear from the facts of the case; or to contest the inaction of the prosecution authorities – if no decision had been issued following her complaint (for the applicable legislation, see paragraphs 131 and 134 above). 291. Accordingly, the Court considers that she cannot be regarded as having exhausted domestic remedies as required by Article 35 § 1 and rejects this complaint under Article 35 § 4 of the Convention. VIII. APPLICATION OF ARTICLE 41 OF THE CONVENTION 292. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 293. Having found no violations of the Convention or the Protocols thereto in respect of the second applicant, the Court notes that Article 41 of the Convention is not applicable to her. It will therefore not examine her just satisfaction claims. A. Damage in respect of the first applicant 294. The first applicant claimed EUR 80,000 in respect of non-pecuniary damage. 295. The Government contested that claim. 296. The Court notes that it has found a combination of violations in the present case and accepts that the first applicant has suffered non-pecuniary damage which cannot be compensated for solely by the findings of violations. The Court therefore finds it appropriate to award him EUR 35,000 under that head. 297. Furthermore, given the Court's findings regarding the unfairness of the domestic proceedings resulting in the first applicant's conviction and having regard to the extremely grave and disconcerting circumstances of this case, including the fact that confessions obtained in violation of the absolute prohibition on torture were admitted into evidence, the Court considers it indispensable for the proper protection of human rights that a retrial (a possibility of which is envisaged in the Ukrainian legislation) be provided forthwith should the first applicant so request. Any such trial must observe, strictly, the substantive and procedural safeguards enshrined in Article 6 of the Convention. B. Costs and expenses in respect of the first applicant 1. Legal representation in the proceedings before the Court 298. The first applicant claimed EUR 14,444 in respect of his legal representation by Mr Bushchenko in the proceedings before the Court, which included: EUR 12,950 for legal work at EUR 100 per hour; EUR 1,036 for administrative costs (including translation services, photocopying, etc.); and EUR 458 for postal expenses. To substantiate that claim, he submitted a legal assistance contract of 8 August 2004, which stipulated that it would remain valid until the completion of the proceedings in Strasbourg and that payment would be made thereafter and within the limits of the sum awarded by the Court in costs and expenses. The first applicant also submitted seven time-sheets and expense reports completed by Mr Bushchenko in respect of the work done over the period 2004-2010. 299. The Government emphasised that the first applicant had been granted legal aid by the Council of Europe, without disputing the details of the calculations submitted by him. 300. The Court must establish, firstly, whether the costs and expenses indicated by the first applicant were actually incurred and, secondly, whether they were necessary (see McCann and Others v. the United Kingdom, 27 September 1995, § 220, Series A no. 324 ). 301. As is apparent from the case-file materials, Mr Bushchenko has been representing the first applicant throughout the proceedings before the Court and is therefore entitled to seek payment of his fees under the contract. Accordingly, the Court considers those fees to have been “actually incurred” (see Tebieti Mühafize Cemiyyeti and Israfilov v. Azerbaijan, no 37083/03, § 106, ECHR 2009 ‑ ... ). 302. Taking into account the complexity of the present case as well as the quality and volume of the legal work carried out, the Court does not consider that the claim is excessive and awards it to the first applicant in full, namely EUR 13,594 (which is equal to the requested amount of EUR 14,444 less EUR 850 as the sum received by way of legal aid), plus any value-added tax that may be chargeable to the first applicant. 2. Legal representation in the domestic proceedings 303. The first applicant also claimed EUR 15,000 in respect of his legal representation in the domestic proceedings, without submitting any documents. 304. The Government contested the claim as being exorbitant and not supported by documents. 305. In the absence of any evidence before it as to whether the costs claimed were actually and necessarily incurred, the Court makes no award under this head. 3. Other expenses 306. The first applicant claimed USD 374 in respect of the travel expenses of his father, who was his representative in the domestic proceedings, and USD 227 in respect of the travel expenses of his other family members. 307. The Government contested those claims. 308. Regard being had to the information and documents in its possession and the criteria regarding the reimbursement of costs and expenses set out in its case-law (see paragraph 300 above), the Court rejects these claims. C. Default interest 309. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 6 §§ 1 and 3 (c) of the Convention. It was undisputed by the parties that the applicant had not become legally represented until having spent three days in detention. The applicant had confessed several times to murder at the early stage of his interrogation when he was not assisted by counsel, and had undoubtedly been affected by the restrictions on his access to a lawyer in that his confessions to the police were used for his conviction. |
786 | Organ transplantation | II. RELEVANT INTERNATIONAL DOCUMENTS AND DOMESTIC LAW A. Council of Europe documents 34. On 11 May 1978 the Committee of Ministers of the Council of Europe adopted Resolution (78) 29 on harmonisation of legislations of member States relating to removal, grafting and transplantation of human substances, which recommended that the governments of the member States ensure that their laws conform to the rules annexed to the Resolution or adopt provisions conforming to these rules when introducing new legislation. Article 10 of this Resolution provides: “1. No removal must take place when there is an open or presumed objection on the part of the deceased, in particular, taking into account his religious and philosophical convictions. 2. In the absence of the explicit or implicit wish of the deceased the removal may be effected. However, a state may decide that the removal must not be effected if, after such reasonable inquiry as may be practicable has been made into the views of the family of the deceased and in the case of a surviving legally incapacitated person those of his legal representative, an objection is apparent; when the deceased was a legally incapacitated person the consent of his legal representative may also be required.” 35. The Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine : Convention on Human Rights and Biomedicine (ETS No. 164) is the first international treaty in the field of bioethics. It came into force on 1 December 1999 in respect of the States that had ratified it. Latvia signed the Convention on Human Rights and Biomedicine on 4 April 1997, ratified it on 25 February 2010, and it came into force in respect of Latvia on 1 June 2010. The Convention on Human Rights and Biomedicine is not applicable to organ and tissue removal from deceased persons. It concerns organ and tissue removal from living donors for transplantation purposes (Articles 19 ‑ 20). 36. In relation to organ and tissue removal from deceased persons, an Additional Protocol on Transplantation of Organs and Tissues of Human Origin was adopted ( ETS No. 186), to which the Government referred. On 1 May 2006 it came into force in respect of the States that had ratified it. Latvia has neither signed nor ratified this Protocol. 37. The relevant Articles of the Additional Protocol read as follows. Article 1 – Object “Parties to this Protocol shall protect the dignity and identity of everyone and guarantee, without discrimination, respect for his or her integrity and other rights and fundamental freedoms with regard to transplantation of organs and tissues of human origin.” Article 16 – Certification of death “Organs or tissues shall not be removed from the body of a deceased person unless that person has been certified dead in accordance with the law. The doctors certifying the death of a person shall not be the same doctors who participate directly in removal of organs or tissues from the deceased person, or subsequent transplantation procedures, or having responsibilities for the care of potential organ or tissue recipients.” Article 17 – Consent and authorisation “Organs or tissues shall not be removed from the body of a deceased person unless consent or authorisation required by law has been obtained. The removal shall not be carried out if the deceased person had objected to it.” Article 18 – Respect for the human body “During removal the human body must be treated with respect and all reasonable measures shall be taken to restore the appearance of the corpse.” The relevant parts of the Explanatory Report to the Additional Protocol read as follows. Introduction “2. The purpose of the Protocol is to define and safeguard the rights of organ and tissue donors, whether living or deceased, and those of persons receiving implants of organs and tissues of human origin.” Drafting of the Protocol “7. This Protocol extends the provisions of the Convention on Human Rights and Biomedicine in the field of transplantation of organs, tissues and cells of human origin. The provisions of the Convention are to be applied to the Protocol. For ease of consultation by its users, the Protocol has been drafted in such a way that they need not keep referring to the Convention in order to understand the scope of the Protocol ’ s provisions. However, the Convention contains principles which the Protocol is intended to develop. Accordingly, systematic examination of both texts may prove helpful and sometimes indispensable.” Comments on the provisions of the Protocol Preamble “13. The Preamble highlights the fact that Article 1 of the Convention on Human Rights and Biomedicine protecting the dignity and the identity of all human beings and guaranteeing everyone respect for their integrity, forms a suitable basis on which to formulate additional standards for safeguarding the rights and freedoms of donors, potential donors and recipients of organs and tissues.” Article 1 – Object “16. This article specifies that the object of the Protocol is to protect the dignity and identity of everyone and guarantee, without discrimination, respect for his or her integrity and other rights and fundamental freedoms with regard to transplantation of organs and tissues of human origin. 17. The term ‘ everyone ’ is used in Article 1 because it is seen as the most concordant with the exclusion of embryonic and foetal organs or tissues from the scope of the Protocol as stated in Article 2 ... The Protocol solely concerns removal of organs and tissues from someone who has been born, whether now living or dead, and the implantation of organs and tissues of human origin into someone else who has likewise been born.” Article 16 – Certification of death “ 94. According to the first paragraph, a person ’ s death must have been established before organs or tissues may be removed ‘ in accordance with the law ’. It is the responsibility of the States to legally define the specific procedure for the declaration of death while the essential functions are still artificially maintained. In this respect, it can be noted that in most countries, the law defines the concept and the conditions of brain death. 95. The death is confirmed by doctors following an agreed procedure and only this form of death certification can permit the transplantation to go ahead. The retrieval team must satisfy themselves that the required procedure has been completed before any retrieval operation is started. In some States, this procedure for certification of death is separate from the formal issuance of the death certificate. 96. The second paragraph of Article 16 provides an important safeguard for the deceased person by ensuring the impartiality of the certification of death, by requiring that the medical team which certifies death should not be the same one that is involved in any stage of the transplant process. It is important that the interests of any such deceased person and the subsequent certification of death are, and are seen to be, the responsibility of a medical team entirely separate from those involved in transplantation. Failure to keep the two functions separate would jeopardise the public ’ s trust in the transplantation system and might have an adverse effect on donation. 97. For the purposes of this Protocol, neonates including anencephalic neonates receive the same protection as any person and the rules on certification of death are applicable to them. ” Article 17 – Consent and authorisation “ 98. Article 17 bars the removal of any organ or tissue unless the consent or authorisation required by national law has been obtained by the person proposing to remove the organ or tissue. This requires member States to have a legally recognised system specifying the conditions under which removal of organs or tissues is authorised. Furthermore, by virtue of Article 8, the Parties should take appropriate measures to inform the public, namely about matters relating to consent or authorisation with regard to removal from deceased persons ... 99. If a person has made known their wishes for giving or denying consent during their lifetime, these wishes should be respected after his/her death. If there is an official facility for recording these wishes and a person has registered consent to donation, such consent should prevail: removal should go ahead if it is possible. By the same token, it may not proceed if the person is known to have objected. Nonetheless, consultation of an official register of last wishes is valid only in respect of the persons entered in it. Nor may it be considered the only way of ascertaining the deceased person ’ s wishes unless their registration is compulsory. 100. The removal of organs or tissues can be carried out on a deceased person who has not had, during his/her life, the capacity to consent if all the authorisations required by law have been obtained. The authorisation may equally be required to carry out a removal on a deceased person who, during his/her life, was capable of giving consent but did not make known his wishes regarding an eventual removal post-mortem. 101. Without anticipating the system to be introduced, the Article accordingly provides that if the deceased person ’ s wishes are at all in doubt, it must be possible to rely on national law for guidance as to the appropriate procedure. In some States the law permits that if there is no explicit or implicit objection to donation, removal can be carried out. In that case, the law provides means of expressing intention, such as drawing up a register of objections. In other countries, the law does not prejudge the wishes of those concerned and prescribes enquiries among relatives and friends to establish whether or not the deceased person was in favour of organ donation. 102. Whatever the system, if the wishes of the deceased are not sufficiently established, the team in charge of the removal of organs must beforehand endeavour to obtain testimony from relatives of the deceased. Unless national law otherwise provides, such authorisation should not depend on the preferences of the close relatives themselves for or against organ and tissue donation. Close relatives should be asked only about the deceased persons expressed or presumed wishes. It is the expressed views of the potential donor which are paramount in deciding whether organs or tissue may be retrieved. Parties should make clear whether organ or tissue retrieval can take place if a deceased person ’ s wishes are not known and cannot be ascertained from relatives or friends. 103. When a person dies in a country in which he/she is not normally resident, the retrieval team shall take all reasonable measures to ascertain the wishes of the deceased. In case of doubt, the retrieval team should respect the relevant applicable laws in the country in which the deceased is normally resident or, by default, the law of the country of which the deceased person is a national. ” Article 18 – Respect for the human body “ 104. A dead body is not legally regarded as a person, but nonetheless should be treated with respect. This article accordingly provides that during removal the human body must be treated with respect and after removal the body should be restored as far as possible to its original appearance. ” 38. In May 2002 the Secretary General of the Council of Europe sent a questionnaire to the Council of Europe member States concerning aspects of law and practice in relation to transplantation [1]. The Latvian government replied in the affirmative to the question of whether removal from a living donor required authorisation and referred to Articles 19 and 20 of the Convention on Human Rights and Biomedicine and section 13 of the Law on the protection of the body of a deceased person and use of human organs and tissue. They noted that written consent was required. In their response to the question “What kind of relationships should exist between the living donor of an organ and the recipient?”, they referred to Articles 19 and 20 of the Convention on Human Rights and Biomedicine. In their response to the question “What sanctions are provided for [organ-trafficking] offenders, in particular, for intermediaries and health professionals?”, the Latvian government referred to section 139 of the Criminal Law (see paragraph 53 below). B. European Union documents 39. On 21 July 1998 the European Group on Ethics in Science and New Technologies (EGE) [2] issued Opinion no. 11 on ethical aspects of human tissue banking. Its relevant parts read as follows. “ 2.3 Information and consent The procurement of human tissues requires, as a principle, the prior, informed and free consent of the person concerned. This does not apply in the case of tissue procurement ordered by a judge in the context of judicial, in particular criminal, proceedings. While consent is a fundamental ethical principle in Europe, the procedures involved and forms of such consent (oral or in writing, before a witness or not, explicit or presumed, etc.) are a matter for national legislation based on the legal traditions of each country. ... 2.3.2 Deceased donors Consent of a donor for retrieval of tissues after death may take different forms depending on the national systems ( ‘ explicit ’ or ‘ presumed ’ consent). However, no retrieval of tissues may take place, with the exception of judicial proceedings, if the party concerned formally objected while alive. Furthermore, if there has been no expression of will and the applicable system is that of ‘ presumed ’ consent, doctors must ensure as far as possible that relatives or next of kin have the opportunity to express the deceased person ’ s wishes, and must take these into account.” 40. The relevant parts of Directive 2004/23/EC of the European Parliament and of the Council of 31 March 2004 on setting standards of quality and safety for the donation, procurement, testing, processing, preservation, storage and distribution of human tissues and cells provide as follows. Article 13 – Consent “1. The procurement of human tissues or cells shall be authorised only after all mandatory consent or authorisation requirements in force in the Member State concerned have been met. 2. Member States shall, in keeping with their national legislation, take all necessary measures to ensure that donors, their relatives or any persons granting authorisation on behalf of the donors are provided with all appropriate information as referred to in the Annex.” ANNEX – INFORMATION TO BE PROVIDED ON THE DONATION OF CELLS AND/OR TISSUES B. Deceased donors “1. All information must be given and all necessary consents and authorisations must be obtained in accordance with the legislation in force in Member States. 2. The confirmed results of the donor ’ s evaluation must be communicated and clearly explained to the relevant persons in accordance with the legislation in Member States.” C. World Health Organisation (WHO) documents 41. The WHO Guiding Principles on Human Cell, Tissue and Organ Transplantation (endorsed by the sixty-third World Health Assembly on 21 May 2010, Resolution WHA63.22) provide, in so far as relevant, as follows. Guiding Principle 1 “Cells, tissues and organs may be removed from the bodies of deceased persons for the purpose of transplantation if: (a) any consent required by law is obtained, and (b) there is no reason to believe that the deceased person objected to such removal.” Commentary on Guiding Principle 1 “ Consent is the ethical cornerstone of all medical interventions. National authorities are responsible for defining the process of obtaining and recording consent for cell, tissue and organ donation in the light of international ethical standards, the manner in which organ procurement is organized in their country, and the practical role of consent as a safeguard against abuses and safety breaches. Whether consent to procure organs and tissues from deceased persons is ‘ explicit ’ or ‘ presumed ’ depends upon each country ’ s social, medical and cultural traditions, including the manner in which families are involved in decision-making about health care generally. Under both systems any valid indication of deceased persons ’ opposition to posthumous removal of their cells, tissues or organs will prevent such removal. Under a regime of explicit consent – sometimes referred to as ‘ opting in ’ – cells, tissues or organs may be removed from a deceased person if the person had expressly consented to such removal during his or her lifetime; depending upon domestic law, such consent may be made orally or recorded on a donor card, driver ’ s license or identity card or in the medical record or a donor registry. When the deceased has neither consented nor clearly expressed opposition to organ removal, permission should be obtained from a legally specified surrogate, usually a family member. The alternative, presumed consent system – termed ‘ opting (or contracting) out ’ – permits material to be removed from the body of a deceased person for transplantation and, in some countries, for anatomical study or research, unless the person had expressed his or her opposition before death by filing an objection with an identified office, or an informed party reports that the deceased definitely voiced an objection to donation. Given the ethical importance of consent, such a system should ensure that people are fully informed about the policy and are provided with an easy means to opt out. Although expressed consent is not required in an opting-out system before removal of the cells, tissues or organs of a deceased person who had not objected while still alive, procurement programmes may be reluctant to proceed if the relatives personally oppose the donation; likewise, in opting-in systems, programmes typically seek permission from the family even when the deceased gave pre-mortem consent. Programmes are more able to rely on the deceased ’ s explicit or presumed consent, without seeking further permission from family members, when the public ’ s understanding and acceptance of the process of donating cells, tissues and organs is deep-seated and unambiguous. Even when permission is not sought from relatives, donor programmes need to review the deceased ’ s medical and behavioural history with family members who knew him or her well, since accurate information about donors helps to increase the safety of transplantation. For tissue donation, which entails slightly less challenging time constraints, it is recommended always to seek the approval of the next of kin. An important point to be addressed is the manner in which the appearance of the deceased ’ s body will be restored after the tissues are removed. ” D. Domestic law 1. Law on the protection of the body of a deceased person and use of human organs and tissues 42. The Law on protection of the body of a deceased person and use of human organs and tissue ( likums “ Par miruša cilvēka ķermeņa aizsardzību un cilvēka audu un orgānu izmantošanu medicīnā ” – “the Law”), as in force at the relevant time (with amendments effective as of 1 November 1995 and up until 31 December 2001 ), provides in section 2 that every living person with legal capacity is entitled to consent or object, in writing, to the use of his or her body after death. The wish expressed, unless it is contrary to the law, is binding. 43. Section 3 provides that any such refusal of or consent to the use of one ’ s body after death has legal effect only if it has been signed by a person with legal capacity, recorded in his or her medical record and denoted by a special stamp in his or her passport. The Department of Health in the Ministry of Welfare is responsible for prescribing the procedure for recording refusal or consent in a person ’ s medical record (contrast with the situation following legislative amendments effective as of 1 January 2002, Petrova v. Latvia, no. 4605/05, § 35, 24 June 2014 ). 44. Pursuant to section 4, which is entitled “The rights of the closest relatives”, the organs and tissues of a deceased person may not be removed against his or her wishes as expressed during his or her lifetime. In the absence of express wishes, removal may be carried out if none of the closest relatives (children, parents, siblings or spouse) objects. Transplantation may be carried out after the biological or brain death of the potential donor (section 10). 45. More specifically, section 11 of the Law provides that organs and tissue from a deceased donor may be removed for transplantation purposes if that person has not objected to such removal during his or her lifetime and if his or her closest relatives have not prohibited it. 46. By virtue of a transitional provision of the Law, a stamp in a person ’ s passport added before 31 December 2001 denoting objection or consent to the use of his or her body after death has legal effect until a new passport is issued or an application to the Office of Citizenship and Migration Affairs is submitted. 47. Section 17 provides that the State is responsible for protecting the body of a deceased person and for using organs or tissues for medical purposes. At the material time this function was entrusted to the Department of Health in the Ministry of Welfare (as of 1 January 2002, the Ministry of Welfare, as of 30 June 2004, the Ministry of Health). No organisation or authority can carry out the removal of organs and tissues and use them without an authorisation issued by the Department of Health (as of 1 January 2002, the Minister of Welfare, as of 30 June 2004, the Minister of Health). 48. Section 18 prohibits the selection, transportation and use of the removed organs and tissues for commercial purposes. It also provides that the removal of organs and tissues from any living or deceased person can only be carried out with strict respect for that person ’ s expressed consent or objection. 49. Section 21 originally provided that the prosecutor ’ s office was to supervise compliance with this Law (paragraph 1). The Department of Health of the Ministry of Welfare and other competent bodies were responsible for monitoring the legality of the use of human tissue and organs (paragraph 2). By virtue of amendments effective from 1 January 2002, paragraph 1 was repealed; the remaining paragraph provided that the Ministry of Welfare was to bear responsibility for checking the compatibility of the use of human tissue and organs with law and other legislative instruments. From 30 June 2004 this task was entrusted to the Ministry of Health. Lastly, since 27 August 2012 this section has been repealed in its entirety. 50. On 2 June 2004 amendments to sections 4 and 11 of the Law were passed by Parliament, effective as of 30 June 2004. From that date onwards, section 4 provides that if no information is recorded in the population register about a deceased person ’ s refusal of or consent to the use of his or her body, organs or tissue after death, the closest relatives have the right to inform the medical institution in writing of the wishes of the deceased person expressed during his or her lifetime. Section 11 provides that the organs and body tissue of a deceased person may be removed for transplantation purposes if no information is recorded in the population register about the deceased person ’ s refusal of or consent to the use of his or her organs or body tissue after death and if the closest relatives of the deceased have not, before the start of the transplantation, informed the medical institution in writing of any objection by the deceased person to the use of his or her organs and body tissue after death expressed during his or her lifetime. It is forbidden to remove organs and body tissue from a dead child for transplantation purposes unless one of his or her parents or his or her legal guardian has consented to it in writing. 2. Regulation of the Cabinet of Ministers no. 431 (1996) 51. This Regulation ( Noteikumi par miruša cilvēka audu un orgānu uzkrāšanas un izmantošanas kārtību medicīnā ) provides that removal of organs and tissue may be carried out after the biological or brain death of a person if his or her passport and medical record contain a stamp denoting consent to such removal ( see paragraph 3 of the Regulation ). In the absence of such a stamp, the provisions of the Law (see paragraphs 42-50 above) are to be followed. 3. Legal regulation of the MADEKKI 52. The legal regulations governing the Inspectorate of Quality Control for Medical Care and Working Capability (“MADEKKI”) in Latvian law are summarised in L.H. v. Latvia (no. 52019/07, §§ 24-27, 29 April 2014). For the purposes of the present case it suffices to note that these regulations ‒ approved by the Cabinet of Ministers (Regulation no. 391 (1999), effective from 26 November 1999 to 30 June 2004) ‒ provided, inter alia, that one of the main functions of the MADEKKI was to monitor the professional quality of healthcare in medical institutions. 4. Criminal law provisions 53. Section 139 of the Criminal Law ( Krimināllikums ) provides that the unlawful removal of organs or tissues from a living or deceased human being in order to use them for medical purposes is a criminal offence if carried out by a medical practitioner. 54. The relevant provisions pertaining to the rights of civil parties in criminal proceedings under the former Code of Criminal Procedure ( Latvijas Kriminālprocesa kodekss, effective until 1 October 2005) are described in Liģeres v. Latvia (no. 17/02, §§ 39-41, 28 June 2011) and Pundurs v. Latvia ((dec.), no. 43372/02, §§ 12-17, 20 September 2011). 55. In addition, the relevant provisions pertaining to the rights of civil parties in criminal proceedings under the Criminal Procedure Law ( Kriminālprocesa likums, effective from 1 October 2005), as in force at the material time, read as follows. Section 22 – Right to compensation for damage “A person who has sustained psychological distress, physical injury or pecuniary loss as a result of a criminal offence shall be guaranteed procedural opportunities to request and receive compensation for pecuniary and non-pecuniary damage.” Section 351 – Claim for compensation “(1) An injured party shall have the right to submit a claim for compensation for harm caused at any stage of criminal proceedings up to the commencement of a judicial investigation in a court of first instance. The claim shall contain justification of the amount of compensation requested. (2) A claim may be submitted in writing or expressed orally. An oral request shall be recorded in the minutes by the person directing the proceedings. (3) During pre-trial proceedings, the public prosecutor shall indicate the submission of a claim and the amount of compensation claimed, as well as his or her opinion thereon, in the document concerning the completion of pre-trial proceedings. (4) Failure to ascertain the criminal liability of a person shall not be an impediment to the submission of a compensation claim. (5) An injured party shall have the right to withdraw a submitted compensation claim at any stage of criminal proceedings up to the moment when the court retires to give judgment. The refusal of compensation by a victim may not constitute grounds for the revocation or modification of charges, or for acquittal.” 5. The right to receive compensation 56. Article 92 of the Constitution ( Satversme ) provides, inter alia, that “any person whose rights are violated without justification has a right to commensurate compensation ”. 57. Domestic legal provisions pertaining to compensation for pecuniary and non-pecuniary damage under the Civil Law ( Civillikums ), before and after the amendments that were effective from 1 March 2006, are quoted in full in Zavoloka v. Latvia (no. 58447/00, §§ 17-19, 7 July 2009). Sections 1635 and 1779 are further described in Holodenko v. Latvia (no. 17215/07, § 45, 2 July 2013). 58. Under section 92 of the Administrative Procedure Law ( Administratīvā procesa likums ), in force since 1 February 2004, everyone has the right to receive commensurate compensation for pecuniary and non ‑ pecuniary damage caused by an administrative act or action of a public authority. Under section 93 of the same Law, a claim for compensation can be submitted either together with an application to the administrative courts to declare an administrative act or action of a public authority unlawful, or to the public authority concerned following a judgment adopted in such proceedings. Under section 188, an application to an administrative court regarding an administrative act or action of a public authority must be lodged within one month or one year depending on the circumstances. In relation to an action of a public authority, the one - year time-limit runs from the date on which the applicant finds out that such action has occurred. Lastly, under section 191(1) an application will be refused if more than three years have elapsed since the applicant found out or ought to have found out that such action occurred. This time-limit is not amenable to extension ( atjaunots ). 59. The amount of compensation and the procedure for claiming damages from a public authority on account of an unlawful administrative act or an unlawful action of a public authority are prescribed by the Law on compensation for damage caused by public authorities ( Valsts pārvaldes iestāžu nodarīto zaudējumu atlīdzināšanas likums ), in force since 1 July 2005. Chapter III of the Law provides for the procedure to be followed when an individual claims damages from a public authority. Under section 15, an individual is entitled to lodge an application with the public authority that was responsible for the damage. Pursuant to section 17, such an application must be lodged not later than one year from the date when the individual became aware of the damage and, in any event, not later than five years after the date of the unlawful administrative act or unlawful action of a public authority. THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 60. The applicant complained in substance under Article 8 of the Convention, firstly, that the removal of tissue from her husband ’ s body had been carried out without his or the applicant ’ s prior consent. Secondly, she complained that ‒ in the absence of such consent ‒ his dignity, identity and integrity had been breached and his body had been treated disrespectfully. 61. Article 8 of the Convention reads as follows. “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 62. The Government denied that there had been a violation of that Article. A. Preliminary issues 63. The Court must start by examining whether it is competent ratione personae to examine the applicant ’ s complaint; this issue calls for consideration by the Court of its own motion (see Sejdić and Finci v. Bosnia and Herzegovina [GC], nos. 27996/06 and 34836/06, § 27, ECHR 2009). 64. The Court ’ s approach as concerns direct and indirect victims has been recently summarised in Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania ( [GC], no. 47848/08, §§ 96-100, ECHR 2014 ) as follows (references omitted). “ (i) Direct victims 96. In order to be able to lodge an application in accordance with Article 34, an individual must be able to show that he or she was ‘ directly affected ’ by the measure complained of ... This is indispensable for putting the protection mechanism of the Convention into motion, although this criterion is not to be applied in a rigid, mechanical and inflexible way throughout the proceedings ... Moreover, in accordance with the Court ’ s practice and with Article 34 of the Convention, applications can only be lodged by, or in the name of, individuals who are alive ... Thus, in a number of cases where the direct victim has died prior to the submission of the application, the Court has not accepted that the direct victim, even when represented, had standing as an applicant for the purposes of Article 34 of the Convention ... (ii) Indirect victims 97. Cases of the above-mentioned type have been distinguished from cases in which an applicant ’ s heirs were permitted to pursue an application which had already been lodged. An authority on this question is Fairfield and Others ..., where a daughter lodged an application after her father ’ s death, alleging a violation of his rights to freedom of thought, religion and speech (Articles 9 and 10 of the Convention). While the domestic courts granted Ms Fairfield leave to pursue the appeal after her father ’ s death, the Court did not accept the daughter ’ s victim status and distinguished this case from the situation in Dalban v. Romania ..., where the application had been brought by the applicant himself, whose widow had pursued it only after his subsequent death. In this regard, the Court has differentiated between applications where the direct victim has died after the application was lodged with the Court and those where he or she had already died beforehand. Where the applicant has died after the application was lodged, the Court has accepted that the next of kin or heir may in principle pursue the application, provided that he or she has sufficient interest in the case ... 98. However, the situation varies where the direct victim dies before the application is lodged with the Court. In such cases the Court has, with reference to an autonomous interpretation of the concept of ‘ victim ’, been prepared to recognise the standing of a relative either when the complaints raised an issue of general interest pertaining to ‘ respect for human rights ’ (Article 37 § 1 in fine of the Convention) and the applicants as heirs had a legitimate interest in pursuing the application, or on the basis of the direct effect on the applicant ’ s own rights ... The latter cases, it may be noted, were brought before the Court following or in connection with domestic proceedings in which the direct victim himself or herself had participated while alive. Thus, the Court has recognised the standing of the victim ’ s next of kin to submit an application where the victim has died or disappeared in circumstances allegedly engaging the responsibility of the State ... 99. In Varnava and Others ... the applicants lodged the applications both in their own name and on behalf of their disappeared relatives. The Court did not consider it necessary to rule on whether the missing men should or should not be granted the status of applicants since, in any event, the close relatives of the missing men were entitled to raise complaints concerning their disappearance ... The Court examined the case on the basis that the relatives of the missing persons were the applicants for the purposes of Article 34 of the Convention. 100. In cases where the alleged violation of the Convention was not closely linked to disappearances or deaths giving rise to issues under Article 2, the Court ’ s approach has been more restrictive, as in Sanles Sanles v. Spain ..., which concerned the prohibition of assisted suicide. The Court held that the rights claimed by the applicant under Articles 2, 3, 5, 8, 9 and 14 of the Convention belonged to the category of non-transferable rights, and therefore concluded that the applicant, who was the deceased ’ s sister-in-law and legal heir, could not claim to be the victim of a violation on behalf of her late brother-in-law. The same conclusion has been reached in respect of complaints under Articles 9 and 10 brought by the alleged victim ’ s daughter ... In other cases concerning complaints under Articles 5, 6 or 8 the Court has granted victim status to close relatives, allowing them to submit an application where they have shown a moral interest in having the late victim exonerated of any finding of guilt ... or in protecting their own reputation and that of their family ..., or where they have shown a material interest on the basis of the direct effect on their pecuniary rights ... The existence of a general interest which necessitated proceeding with the consideration of the complaints has also been taken into consideration ... The applicant ’ s participation in the domestic proceedings has been found to be only one of several relevant criteria ... ” 65. As regards the first part of the complaint, the Court considers that the applicant has adequately demonstrated that she has been directly affected by the removal of tissue from her deceased husband ’ s body without her consent (see also Petrova v. Latvia, no. 4605/05, § 56, 24 June 2014 ). The Court is therefore satisfied that the applicant can be considered a “direct victim” in that regard (see paragraph 60 above). However, in so far as the applicant ’ s complaint relates to the lack of consent from her deceased husband, the Court considers that it is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) of the Convention and must therefore be rejected in accordance with Article 35 § 4. 66. As regards the second part of the complaint, the Court notes that the applicant conceded that it concerned her deceased husband ’ s rights. Accordingly, it must also be rejected as incompatible ratione personae with the provisions of the Convention in accordance with Article 35 §§ 3 (a) and 4 of the Convention. 67. Lastly, the Court notes that in certain respects the second part of the complaint overlaps with the applicant ’ s complaint under Article 3 of the Convention. Accordingly, the Court will examine it below in so far as it relates to the applicant ’ s rights. B. Admissibility 1. The parties ’ submissions 68. The Government conceded that the applicant ’ s complaint fell within the ambit of “private life” under Article 8 of the Convention, but they did not accept that it concerned “family life”. 69. First of all, relying on the Court ’ s decision in Grišankova and Grišankovs v. Latvia ((dec.), no. 36117/02, ECHR 2003 - II), the Government argued that the applicant had failed to exhaust domestic remedies. They submitted that the applicant should have lodged a complaint with the Constitutional Court since the removal of tissue from her husband ’ s body had been carried out in accordance with the procedure laid down in sections 4 and 11 of the Law. She should have raised the issue of the compliance of these legal provisions with the Latvian Constitution. 70. Secondly, the Government argued that the applicant had not submitted a complaint to the MADEKKI. The Government pointed out that at the material time the MADEKKI had been the body with competence to examine the applicant ’ s complaints, since its function was to monitor the professional quality of healthcare in medical institutions. It was the Government ’ s submission that an examination by MADEKKI of the compliance of the tissue removal procedure with domestic law was a necessary precondition for instituting any civil or criminal proceedings against those responsible. They did not provide any further information in this regard. 71. Thirdly, the Government submitted that the applicant could have relied on section 1635 of the Civil Law (as effective from 1 March 2006) and claimed compensation for pecuniary and non-pecuniary damage before the civil courts. The Government provided some examples of domestic case-law pertaining to the application of section 1635 in practice. They referred to the proceedings in case PAC-714 (instituted on 7 February 2005), where a claimant had sought compensation for non-pecuniary damage from a hospital where she had given birth and where tubal ligation (surgical contraception) had been performed without her consent ( referring to L.H. v. Latvia, no. 52019/07, § 8, 29April 2014 ). On 1 December 2006 that claim had been upheld and the claimant had been awarded compensation for physical injury and psychological distress in the amount of 10,000 Latvian lati (LVL) in respect of the unlawful sterilisation on the basis of section 2349 of the Civil Law. This judgment had taken effect on 10 February 2007. The Government also referred to one of the “Talsi tragedy” cases (instituted on 15 September 2006), in which on 16 March 2010 the appellate court had awarded compensation payable by the State in the amount of LVL 20,000 in connection with an incident of 28 June 1997 in Talsi, in which the claimant ’ s daughter, among other children, had died. The final decision in that case had been adopted on 28 September 2011. The Government did not provide copies of the decisions in that case. 72. The applicant disagreed. She submitted that her complaint fell within the ambit of private and family life under Article 8 of the Convention. 73. In response to the first remedy cited by the Government – recourse to the Constitutional Court – the applicant pointed out that the court ’ s competence was limited to reviewing compliance with the Constitution of laws and other legal instruments. The applicant argued that the tissue removal had been contrary to sections 4 and 11 of the Law; she did not consider these legal provisions to be contrary to the Constitution. The decision in Grišankova and Grišankovs, cited above, concerned the wording of the Education Law. The present case, however, concerned an individual action – the removal of tissue from her husband ’ s body. Moreover, the applicant argued that if any provisions of the Law were indeed not compatible with the Constitution, the criminal court, the Prosecutor General or the Cabinet of Ministers should and could themselves have submitted an application to the Constitutional Court. 74. In response to the second remedy cited by the Government, namely a complaint to the MADEKKI, the applicant submitted that it would not have been the competent body. Tissue removal was not healthcare. The applicant referred to section 21 of the Law and explained that at the relevant time supervision had been the responsibility of the prosecutor ’ s office (see paragraph 49 above). 75. In response to the third remedy cited by the Government, the applicant argued that the Forensic Centre was a State institution under the supervision of the Ministry of Health. Since the entry into force of the Administrative Procedure Law on 1 February 2004, administrative acts and actions of public authorities had been amenable to judicial review by the administrative courts. Thus, an appeal against an action of a public authority – in this case, the removal of tissue from the body of the applicant ’ s husband – could only be lodged in the administrative courts. Referring to the Forensic Centre ’ s regulations, the applicant noted that the actions of its employees were amenable to appeal before its head, whose decisions or actions were subsequently amenable to judicial review by the administrative courts. Appeals under the Administrative Procedure Law, however, would have been time-barred in the applicant ’ s case by the time the final decision had been taken in the criminal proceedings. The applicant concluded that the actions of the expert concerned could not be subject to judicial review by the civil courts. 76. The applicant also pointed out that the amount of compensation and the procedure for claiming damages from a public authority on account of an unlawful administrative act or unlawful action by a public authority were prescribed by the Law on compensation for damage caused by public authorities and not by the Civil Law. An action under the former law, however, would also have been time-barred. 77. Lastly, even if the applicant had, as suggested by the Government, lodged a civil claim under section 1635 of the Civil Law against the experts who had removed tissue from her husband ’ s body, it would have been bound to fail since in the criminal proceedings it had been established that they were not guilty. The applicant also pointed out that the examples of domestic case-law referred to by the Government were not comparable. In the first case the civil proceedings had been instituted against a private hospital and not against a State institution. The second case concerned events which dated back to 1997, long before the Administrative Procedure Law and the Law on compensation for damage caused by public authorities had come into effect. In addition, at that time, the Code of Civil Procedure contained a chapter concerning litigation in matters arising from administrative relations, which had been superseded by the entry into force of the Administrative Procedure Law. 2. The Court ’ s assessment (a) Non-exhaustion of domestic remedies 78. In so far as the Government referred to a constitutional complaint as a relevant remedy in the applicant ’ s circumstances, the Court considers that such a complaint could not constitute an effective means of protecting the applicant ’ s rights under Article 8 of the Convention for the following reasons. 79. The Court has already examined the scope of the Constitutional Court ’ s review in Latvia (see Grišankova and Grišankovs, cited above; Liepājnieks v. Latvia (dec.), no. 37586/06, §§ 73-76, 2 November 2010; Savičs v. Latvia, no. 17892/03, §§ 113-17, 27 November 2012; Mihailovs v. Latvia, no. 35939/10, §§ 157-58, 22 January 2013; Nagla v. Latvia, no. 73469/10, § 48, 16 July 2013; and Latvijas jauno zemnieku apvienība v. Latvia (dec.), no. 14610/05, §§ 44-45, 17 December 2013 ). 80. The Court noted in the above cases that the Constitutional Court examined, inter alia, individual complaints challenging the constitutionality of a legal provision or its compliance with a provision having superior legal force. An individual constitutional complaint can be lodged against a legal provision only when an individual considers that the provision in question infringes his or her fundamental rights as enshrined in the Constitution. The procedure of an individual constitutional complaint cannot therefore serve as an effective remedy if the alleged violation resulted only from the erroneous application or interpretation of a legal provision which, in its content, is not unconstitutional (see Latvijas jauno zemnieku apvienība, cited above, §§ 44-45 ). 81. In the present case, the Court considers that the applicant ’ s complaint concerning the removal of tissue does not relate to the compatibility of one legal provision with another legal provision having superior force. The Government argued that the tissue removal had taken place in accordance with the procedure laid down in law. The applicant, for her part, did not contest the constitutionality of this procedure. Instead, she argued that the tissue removal from her husband ’ s body constituted an individual action that was contrary to sections 4 and 11 of the Law. The Court finds that the applicant ’ s complaint relates to the application and interpretation of domestic law, particularly in the light of the absence of any relevant administrative regulation; it cannot be said that any issues of compatibility arise. In such circumstances the Court considers that the applicant was not required to avail herself of the proposed remedy. 82. The Court understands the Government ’ s argument in relation to the examination by the MADEKKI (see paragraph 70 above) as chiefly pertaining to civil remedies; the Court will examine it immediately below. It is not clear from the evidence in the case file whether the MADEKKI carried out any examination in relation to the criminal proceedings in the present case (contrast Petrova, cited above, § 15). In any event, it does not appear that any examination by the MADEKKI was necessary in order to institute criminal proceedings. Be that as it may, it is irrelevant that the applicant did not lodge a separate complaint with the MADEKKI, as long as she complained of all the decisions adopted by the investigating and prosecuting authorities, whose task it is normally to establish whether any crime has been committed (ibid., § 71). 83. As regards the possibility of lodging a civil claim for damages, in Calvelli and Ciglio v. Italy ([GC], no. 32967/96, § 51, ECHR 2002 ‑ I), the Court held : “ ... In the specific sphere of medical negligence the obligation may for instance also be satisfied if the legal system affords victims a remedy in the civil courts, either alone or in conjunction with a remedy in the criminal courts, enabling any liability of the doctors concerned to be established and any appropriate civil redress, such as an order for damages and for the publication of the decision, to be obtained. Disciplinary measures may also be envisaged.” 84. The Court has further stated that this principle applies when the infringement of the right to life or personal integrity is not caused intentionally (see Vo v. France [GC], no. 53924/00, § 90, ECHR 2004 ‑ VIII, and Öneryıldız v. Turkey [GC], no. 48939/99, § 92, ECHR 2004 ‑ XII). 85. However, the Court has also found that, in the event of there being a number of domestic remedies which an individual can pursue, that person is entitled to choose the remedy which addresses his or her essential grievance (see Jasinskis v. Latvia, no. 45744/08, § 50, 21 December 2010). The Court observes that the applicant was originally unaware of the fact that tissue from her husband ’ s body had been removed; she learned about it only when the security police opened a criminal inquiry into these facts. Subsequently, she availed herself of the criminal avenue of redress – she was declared an injured party in these proceedings and she pursued them by lodging various complaints with the investigating and prosecuting authorities. The criminal-law remedy could have given rise to a finding that the removal of tissue from her husband ’ s body had been carried out contrary to the domestic procedure and that her rights as the closest relative had been breached. It could eventually have led to a compensation award, given that the Latvian legal system recognises victims ’ rights to lodge civil claims in criminal proceedings and to request compensation for damage suffered as a result of a crime (see paragraphs 54 - 55 above). In such circumstances, there is nothing to suggest that the applicant could have legitimately expected that the criminal-law remedy would not be an effective one in her case. 86. The Court is of the view that the applicant was not required to submit to the civil courts a separate, additional request for compensation, which could also have given rise to a finding that the removal of tissue from her husband ’ s body had been carried out contrary to the domestic procedure and that her rights as the closest relative had been breached (see also Sergiyenko v. Ukraine, no. 47690/07, §§ 40-43, 19 April 2012; Arskaya v. Ukraine, no. 45076/05, §§ 75-81, 5 December 2013; and Valeriy Fuklev v. Ukraine, no. 6318/03, §§ 77-83, 1 6 January 2014, where the applicants were not required to lodge separate civil claims for the alleged medical malpractice). The Court concludes that the applicant exhausted the available domestic remedies by pursuing the criminal-law remedy. 87. In the light of the above conclusion, the Court does not consider it necessary to address the Government ’ s argument that an examination by the MADEKKI was necessary to institute civil proceedings. Nor does it consider it necessary to address the applicant ’ s argument that her claim under the Administrative Procedure Law and the Law on compensation for damage caused by public authorities was time-barred or that her claim under the Civil Law was bound to fail. (b) Applicability 88. The Court notes that, while the Government did not accept that the applicant ’ s complaint concerned “family life”, they did not dispute that it fell within the ambit of “private life” under Article 8 of the Convention. 89. The Court reiterates that the concepts of private and family life are broad terms not susceptible to exhaustive definition (see Hadri-Vionnet v. Switzerland, no. 55525/00, § 51, 14 February 2008). In Pannullo and Forte v. France (no. 37794/97, § 36, ECHR 2001-X), the Court considered the excessive delay by the French authorities in returning the body of their child following an autopsy to be an interference with the applicants ’ private and family life. It has also held that the refusal of the investigating authorities to return the bodies of deceased persons to their relatives constituted an interference with the applicants ’ private and family life (see Sabanchiyeva and Others v. Russia, no. 38450/05, § 123, ECHR 2 013, and Maskhadova and Others v. Russia, no. 18071/05, § 212, 6 June 2013). However, that issue does not arise in the present case and no complaint has been made to that effect. The Court notes that there is no dispute between the parties that the applicant ’ s right – established under domestic law – to express consent or refusal in relation to the removal of tissue from her husband ’ s body comes within the scope of Article 8 of the Convention in so far as private life is concerned. The Court sees no reason to hold otherwise and thus considers that this Article is applicable in the circumstances of the case. (c) Conclusion 90. The Court notes that the applicant ’ s complaint ‒ in so far as it concerns the removal of tissue from her deceased husband ’ s body without her consent ‒ is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. C. Merits 1. The parties ’ submissions 91. The applicant submitted that the removal of tissue from her husband ’ s body without her consent had constituted interference with her private life. She argued that she had been prevented from expressing her wishes regarding the removal of tissue from her deceased husband ’ s body. She had not even been informed of this intrusive fact. The applicant also submitted that the expert could not have verified the existence of a stamp in her husband ’ s passport because it had been at their home in Sigulda and therefore unavailable to the expert. 92. First of all, relying on Hokkanen v. Finland ( 23 September 1994, § 55, Series A no. 299 ‑ A ), the applicant argued that the interference had not been in accordance with the law and had not pursued a legitimate aim. The applicant referred to sections 4 and 11 of the Law and argued that in 2001 the system of “explicit consent” had operated in Latvia. The applicant was of the opinion that the experts should have enquired whether the closest relatives had agreed or objected to tissue removal and that they had been under an obligation to do so under the aforementioned provisions. She argued that the aim of the Law was to protect the body of a deceased person and that it was necessary for this aim to be taken into account when interpreting its provisions. In this connection she also referred to international material (see paragraph 3 7 above). Lastly, the 2004 amendments to the Law demonstrated that previously the system of “explicit consent” had prevailed. The discussion regarding “explicit” and “presumed” consent systems in Latvia had only started at about the time that the criminal inquiry was opened in the present case. As a result, substantive legislative amendments had been passed by Parliament in 2004 (see paragraph 50 above). The applicant submitted that even after these amendments the relevant legal provisions were still not clear enough, but their wording had been changed to establish the system of “presumed consent”. 93. The applicant argued furthermore that the domestic law was not foreseeable in its application because it did not provide for the possibility for the relatives to object to tissue removal. She referred to various findings by the domestic authorities that the legal provisions were unclear (see, for example, paragraph 28 above) and noted that several prosecutors had considered that the Law had indeed been breached (see, for example, paragraphs 22, 24 and 27 above). The applicant argued that the experts had exploited the lack of clarity for their own ends and had derived financial benefit from it. The applicant concluded that the removal of tissue from her husband ’ s body had not been carried out in accordance with the law. 94. Secondly, the applicant submitted that “saving the lives of others” could not constitute a legitimate aim for removing tissue without consent. And, thirdly, she argued that it had not been sufficiently proved by the Government to be necessary in a democratic society. 95. The Government maintained that the interference with the applicant ’ s private life as a result of the removal of tissue from her husband ’ s body without his or the applicant ’ s prior consent had complied with the criteria set out in Article 8 § 2. 96. Firstly, the Government argued that the tissue removal had been carried out in accordance with domestic law. They specifically pointed out that the Court – if it were to reject their non-exhaustion argument as regards recourse to the Constitutional Court – ought to proceed on the assumption that national law was compatible with the standard laid down in Article 8 of the Convention. 97. They referred to paragraph 3 of Regulation no. 431 (1996) and sections 4 and 11 of the Law and argued that the tissue removal had been carried out in accordance with domestic law. No prior consent had been necessary, nor had it been necessary to seek permission from the deceased person ’ s closest relatives. It had not been unlawful to proceed with the tissue removal without the consent of the deceased person or his or her closest relatives. The Government argued that under sections 4 and 11 of the Law only “an absence of any objection by the deceased person expressed prior to his death or an absence of explicit objection by [the closest relatives] expressed prior to the tissue removal” had been required. The Government thus argued that the system of “presumed consent” had been operating in Latvia at the material time. They pointed out that the system of “presumed consent” was not innovative and that Latvia had not been the only country employing this system; it was also established in eleven other States. 98. According to the Government, the expert had verified ‒ prior to the tissue removal ‒ that there was no stamp in Mr Elberts ’ passport denoting his objection to the use of his body tissue, and this had allegedly been noted in the form of an abbreviation (“ zīm. nav ”) in the registration log. However, in the copy of the registration log provided to the Court no such legible abbreviation could be seen. 99. At the same time, the Government acknowledged that national laws did not impose any obligation on a doctor to make specific enquiries in order to ascertain if there were any close relatives and to inform them of possible tissue removal. In this connection they referred to the court ’ s decision in the criminal proceedings (see paragraph 28 above). 100. Secondly, the Government argued that the tissue removal had been carried out in order to “save and/or improve the lives of others”. They referred to the court ’ s decision in the criminal proceedings (see paragraph 28 above), which had noted that “tissue [was ] removed in the name of humanity with the aim of improving the health of others and prolonging their lives”. They also referred to the Preamble to the Additional Protocol on Transplantation of Organs and Tissues of Human Origin to the effect that the practice of tissue donation and tissue removal for transplantation purposes “contributes to saving lives or greatly improving their quality” and that “transplantation of ... tissues is an established part of the health services offered to the population”. The Government concluded that the tissue removal had had a legitimate aim – namely the protection of the health and the rights of others. 101. Thirdly, the Government reiterated that the States enjoyed a margin of appreciation when determining measures to be taken in response to the pressing social need to protect the health and the rights of others. The Government relied on Dudgeon v. the United Kingdom ( 22 October 1981, § 52, Series A no. 45) and argued that it was for the national authorities to make the initial assessment of the pressing social need in each case and that the margin of appreciation was left to them. Tissue removal and transplantation contributed to saving lives and could greatly improve their quality. Thus, there was a “pressing social need” for tissue donation because tissue transplantation had become an established part of the health services offered to the whole population. They reiterated that Mr Elberts ’ tissue had been removed in order to secure bio - material for transplantation purposes to potentially improve and/or save the lives of others. 102. It was primarily the duty and responsibility of the deceased ’ s closest relative to duly inform the medical personnel in good time of the deceased person ’ s objection to his or her tissue removal. The national law at the time had not prevented either Mr Elberts or the applicant, as his closest relative, from expressing their wishes in relation to tissue removal. They could have objected to the donation of tissue. However, neither of them had done so before the tissue had been removed in accordance with the Law. The Government concluded that a fair balance had been struck between the applicant ’ s “right to private life under the Convention ‒ as national laws envisaged the closest relative ’ s right to object to the removal of the deceased person ’ s tissue prior to the removal procedure (which had not been exercised either by Mr Elberts or by the applicant) ‒ and the pressing social need to secure bio - implants for tissue transplantation as part of the health services offered to the whole population ”. 2. The Court ’ s assessment (a) General principles 103. The essential object of Article 8 is to protect the individual against arbitrary interference by public authorities. Any interference under the first paragraph of Article 8 must be justified in terms of the second paragraph, namely as being “in accordance with the law” and “necessary in a democratic society” for one or more of the legitimate aims listed therein. The notion of necessity implies that the interference correlates with a pressing social need and, in particular, that it is proportionate to one of the legitimate aims pursued by the authorities (see A, B and C v. Ireland [GC], no. 25579/05, §§ 218-41, ECHR 2010). 104. The Court refers to the interpretation given to the phrase “in accordance with the law” in its case-law (as summarised in S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, §§ 95-96, ECHR 2008). Of particular relevance in the present case is the requirement for the impugned measure to have some basis in domestic law, which should be compatible with the rule of law; this, in turn, means that the domestic law must be formulated with sufficient precision and must afford adequate legal protection against arbitrariness. Accordingly, the domestic law must indicate with sufficient clarity the scope of discretion conferred on the competent authorities and the manner of its exercise (see, most recently, L.H. v. Latvia, cited above, § 47). (b) Application in the present case 105. As to the alleged interference, turning to the circumstances of the present case, the Court notes that following a car accident the applicant ’ s husband sustained life-threatening injuries, of which he died on the way to hospital. On the following day, his body was transported to the Forensic Centre, where an autopsy was carried out. Subsequently, some of his body tissue was removed and later sent to a company in Germany to be transformed into bio - implants with the intention that they would be sent back to Latvia for transplantation purposes. The applicant, who was one of his closest relatives, was not informed of this and could not exercise certain rights established under domestic law – notably the right to express consent or refusal in relation to the removal of tissue from her husband ’ s body. She did not learn about the tissue removal until about two years later, when the security police opened a criminal inquiry into the illegal removal of organs and tissue between 1994 and 2003 and contacted her. 106. The Court notes that it has not been contested that the Forensic Centre was a public institution and that the acts or omissions of its medical staff, including experts who carried out organ and tissue removal, were capable of engaging the responsibility of the respondent State under the Convention (see Glass v. the United Kingdom, no. 61827/00, § 71, ECHR 2004 ‑ II). 107. The Court considers that the above-mentioned circumstances are sufficient for it to conclude that there has been an interference with the applicant ’ s right to respect for her private life under Article 8 of the Convention. 108. As to whether the interference was “in accordance with the law”, the Court observes that Latvian law at the material time explicitly provided for the right on the part of not only the person concerned but also the person ’ s closest relatives, including his or her spouse, to express their wishes in relation to the removal of tissue after that person ’ s death (see paragraphs 44 - 4 5 above). The parties did not contest this. However, their views differed as far as the exercise of this right was concerned. The applicant considered that the experts were obliged to establish the wishes of the closest relatives. The Government argued that the mere absence of any objection was all that was required to proceed with tissue removal. It is the Court ’ s view that these issues relate to the quality of domestic law, in particular the question of whether the domestic legislation was formulated with sufficient precision and afforded adequate legal protection against arbitrariness in the absence of relevant administrative regulations. 109. In this context, the Court observes that the principal disagreement between the parties is whether or not the law – which in principle afforded the closest relatives the right to express consent or refusal in relation to tissue removal – was sufficiently clear and foreseeable in its application as regards the exercise of this right. The applicant argued that there had been no possibility for her as the closest relative to object to the tissue removal, but the Government were of the view that she could have nonetheless exercised that right as nothing had prevented her from expressing her wishes or her objection. 110. The Court reiterates, however, that where national legislation is in issue it is not the Court ’ s task to review the relevant legislation in the abstract. Instead, it must confine itself, as far as possible, to examining the issues raised by the case before it (see Taxquet v. Belgium [GC], no. 926/05, § 83 in fine, ECHR 2010). The Court observes that the parties submitted detailed arguments on the dispute as to whether the system of “explicit consent” or “presumed consent” had been operating in Latvia at the material time (see also the divided views of experts and investigators in paragraph 18 above). It has to be borne in mind, however, that the issue before the Court in the present case is not the general question of whether the respondent State should provide for a particular consent system. The issue is rather the applicant ’ s right to express wishes in connection with the removal of tissue from her husband ’ s body after his death and the domestic authorities ’ alleged failure to ensure the legal and practical conditions for the exercise of that right. 111. The starting - point for the Court ’ s analysis is the fact that the applicant was not informed of the removal of tissue from her husband ’ s body when it was carried out. The domestic authorities established that it was common practice at the time for the experts at the Forensic Centre who carried out such removal not to attempt to contact relatives of the deceased ( see paragraph 16 above); there was also evidence that, even where the experts did have some contact with the relatives, they neither informed them of the imminent removal of tissue nor obtained their consent ( see paragraph 27 above). 112. As to whether or not the domestic law was formulated with sufficient precision, the Court observes that the domestic authorities themselves held conflicting views as to the scope of the obligations enshrined in national law. On the one hand, while the security police considered that tissue removal was allowed only with prior express consent and that its absence rendered the removal unlawful, they also accepted ‒ referring to the views held by the experts ‒ that different interpretations of domestic law were possible, thus rendering it impossible to secure a conviction ( see paragraphs 18 and 20 above ). On the other hand, various supervising prosecutors concluded that by removing the tissue without prior express consent the experts had breached the law and were to be held criminally liable ( see paragraphs 22, 24 and 25 above ). Eventually, the security police accepted the prosecutors ’ interpretation of the domestic law and found that the rights of the closest relatives, including the applicant, had been breached. However, any criminal prosecution had in the meantime become time-barred ( see paragraph 27 above). Lastly, a domestic court, while accepting that the closest relatives had the right to express consent or refusal in relation to the removal of tissue, overruled the view adopted by the prosecution and found that the domestic law did not impose an obligation on the experts to inform the closest relatives and explain their rights to them. The experts could not be convicted of breaching an obligation which was not clearly established by law ( see paragraph 28 above). 113. The Court considers that such disagreement as to the scope of the applicable law among the very authorities responsible for its enforcement inevitably indicates a lack of sufficient clarity. In this regard, the Court refers to the domestic court ’ s finding that, although section 4 of the Law provided for the right of the closest relatives to refuse the removal of the deceased person ’ s organs and/or tissue, it did not impose an obligation on the expert to explain this right to the relatives (see paragraph 28 above). The Government also relied on this statement to argue that the tissue removal had not been unlawful (see paragraphs 97 and 9 9 above ). The Court therefore concludes that, although Latvian law set out the legal framework allowing the closest relatives to express consent or refusal in relation to tissue removal, it did not clearly define the scope of the corresponding obligation or the margin of discretion conferred on experts or other authorities in this respect. The Court notes, in this connection, that the relevant European and international documents on this matter accord particular importance to the principle that the relatives ’ views must be established by means of reasonable enquiries (see paragraphs 3 4 et seq. above). More specifically, as noted in the Explanatory Report to the Additional Protocol, whichever system a State chooses to put in place – be it that of “explicit consent” or that of “presumed consent” – appropriate procedures and registers should also be established. If the wishes of the deceased are not sufficiently clearly established, relatives should be contacted to obtain testimony prior to tissue removal (see, in particular, the commentary on Article 17 of the Additional Protocol, paragraph 3 7 above). 114. Furthermore, the Court reiterates that the principle of legality requires States not only to respect and apply, in a predictable and consistent manner, the laws they have enacted, but also, as a necessary element, to assure the legal and practical conditions for their implementation (see, mutatis mutandis, Broniowski v. Poland [GC], no. 31443/96, §§ 147 and 184, ECHR 2004 ‑ V). Following the death of the applicant ’ s husband on 19 May 2001, an expert from the Forensic Centre was authorised to remove tissue from his body within twenty-four hours of verifying that his passport did not contain a special stamp denoting objection ( see paragraph 16 above). However, it appears that at the material time there was no common register of stamps that had been entered in passports in order to denote refusal of or consent to the use of the passport-holder ’ s body after death (contrast with the situation following legislative amendments effective as of 1 January 2002 and the inclusion of this information in the population register, as described in Petrova, cited above, § 35 ). Moreover, it appears that there was no procedure for the State institutions and experts to follow in order to request and obtain this information. The Government argued that the expert had physically checked Mr Elberts ’ passport prior to removing the tissue, but the applicant claimed that her husband ’ s passport was at home. Therefore, the procedure followed by the expert to verify the information contained in his passport remains unclear. Irrespective of whether or not the expert checked Mr Elberts ’ passport, it remains unclear how the system of consent, as established under Latvian law at the material time, operated in practice in the circumstances in which the applicant found herself, where she had certain rights as the closest relative but was not informed how and when these rights might be exercised, still less provided with any explanation. 115. As to whether the domestic law afforded adequate legal protection against arbitrariness, the Court notes that the removal of tissue in the present case was not an isolated act as in the above-cited Petrova case, but was carried out under a State-approved agreement with a pharmaceutical company abroad; tissue removal had been carried out on a large number of people ( see paragraphs 13, 14 and 26 above). In such circumstances it is all the more important that adequate mechanisms are put in place to counterbalance the wide margin of discretion conferred on the experts to carry out tissue removal on their own initiative ( see paragraph 15), but this was not done (see also the international material cited in paragraphs 34 et seq. above). In response to the Government ’ s argument that nothing had prevented the applicant from expressing her wishes in relation to tissue removal, the Court notes the lack of any administrative or legal regulation in this regard. The applicant was, accordingly, unable to foresee what was expected from her if she wished to exercise that right. 116. In the light of the foregoing, the Court cannot find that the applicable Latvian law was formulated with sufficient precision or afforded adequate legal protection against arbitrariness. 117. The Court accordingly concludes that the interference with the applicant ’ s right to respect for her private life was not in accordance with the law within the meaning of Article 8 § 2 of the Convention. Consequently, there has been a violation of Article 8. Having regard to this conclusion, the Court does not consider it necessary to review compliance with the other requirements of Article 8 § 2 in this case (see, for example, Kopp v. Switzerland, 25 March 1998, § 76, Reports of Judgments and Decisions 1998 ‑ II, and Heino v. Finland, no. 56720/09, § 49, 15 February 2011 ). II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 118. The applicant also complained under Article 3 of the Convention that the removal of tissue from her husband ’ s body had been carried out without her prior consent or knowledge and that she had been forced to bury him with his legs tied together. 119. Article 3 of the Convention reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 120. The Government contested that argument. A. Admissibility 121. The Government raised the same preliminary objections pertaining to non-exhaustion of domestic remedies as already referred to above, and the applicant disagreed ( see paragraphs 6 9 -7 7 above). In this connection the Court refers to its assessment ( see paragraphs 7 8 -8 7 above) and considers it applicable also under this head. 122. Furthermore, the Government referred to an instruction issued by the Ministry of Justice (effective until 1 January 2002) concerning the procedure for post mortem forensic examinations and the Law on the order of examination of applications, complaints and suggestions by State and municipal institutions (effective until 1 January 2008). They argued that the applicant could have lodged a complaint regarding the condition of her deceased husband ’ s body. The applicant disagreed. The Court notes that the Government did not specify the manner in which the proposed remedy could provide redress in respect of the applicant ’ s complaint. The Court considers it sufficient to refer to its assessment above to the effect that the applicant ’ s recourse to a criminal-law remedy was appropriate ( see paragraph 85 above). The Court would add here that the applicant also complained of acts of desecration on her husband ’ s body after the tissue removal in the criminal proceedings concerning the allegedly unlawful tissue removal. Prosecutors at two levels examined her complaints and dismissed them, holding that there was no evidence of desecration (see paragraphs 31-32 above). The Government ’ s objection is therefore dismissed. 123. The Government argued that the applicant had failed to comply with the six-month time-limit, given that she had found out about the condition of her deceased husband ’ s body on 26 May 2001, the day of his funeral. The Court notes, however, that on that date the applicant was not yet aware of the removal of tissue from her husband ’ s body; she learned about it only two years later, when the criminal inquiry was opened. She subsequently became a party to this investigation. The Court therefore regards the final decision in respect of the applicant ’ s complaint as having been issued on 23 October 2008, when the criminal inquiry was discontinued by means of a final decision. It dismisses the preliminary objection in this respect. 124. The Government, relying on Çakıcı v. Turkey ([GC], no. 23657/94, § 98, ECHR 1999 ‑ IV), argued that the applicant could not be considered a victim under Article 3 of the Convention since neither she nor her husband had ever objected to the removal of tissue. They also argued that, since the applicant had never complained at the domestic level that she had been forced to bury her husband with his legs tied together, she could not claim to be a victim before the Court now. The applicant pointed out that Çakıcı was a disappearance case, whereas she had herself seen her husband ’s remains before the funeral and his legs had been tied together. She had been shocked, but at the time she was unaware of the tissue removal. The Court considers that in the present case the question of whether or not the applicant can be considered a victim is closely linked to the merits of the case. It should therefore be joined to the merits. 125. Lastly, the Government maintained that the applicant ’ s complaint was incompatible ratione materiae with the provisions of the Convention. The Government argued that only the outer layer of the meninges ( dura mater ) had been removed. While they agreed that the removal of tissue from a deceased person without the consent or knowledge of that person ’ s closest relatives might on an individual and subjective basis give rise to distress, they did not consider that this ‒ in itself ‒ raised an issue under Article 3 of the Convention. The Government submitted that Article 3 did not lay down a general obligation to obtain consent for or to inform the closest relatives of tissue removal. The Government considered that the applicant ’ s complaint fell to be examined solely under Article 8 of the Convention. The Court considers that in the present case the question of whether or not the applicant ’ s complaint falls within the scope of Article 3 of the Convention is closely linked to the merits of the case. It should therefore be joined to the merits. 126. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds, subject to the questions joined to the merits. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions 127. The applicant submitted that the minimum level of severity for Article 3 of the Convention to apply had been reached in the present case. She had witnessed the condition of her husband ’ s body ‒ with the legs tied together ‒ after the tissue removal. She had also been pregnant at the time with their second child. The applicant submitted that the unlawful tissue removal amounted to inhuman and degrading treatment prohibited by Article 3 of the Convention, since it had caused her shock and suffering. In support, she provided a written statement from her sister, who stated that she had seen Mr Elberts ’ body in Sigulda, after it had been transported from the Forensic Centre prior to the funeral, and that his legs had been tied together with dark tape; she had assumed that this had been due to the car accident. 128. Furthermore, the applicant stressed that throughout the criminal inquiry she had been denied the possibility of finding out which organs or tissue had been removed from her husband ’ s body. At first, she had thought that his legs had been tied together to prevent certain consequences of the car accident. Later, she had assumed that they had been tied together following the removal of tissue from the legs and because other material had been inserted. The applicant was finally able to discover what specific body tissue had been removed from her husband ’ s body only when she received the Government ’ s observations in the present case. 129. The applicant, relying on Labita v. Italy ([GC], no. 26772/95, § 131, ECHR 2000 ‑ IV), argued that there had been no effective investigation. The inquiry had lasted for five years; it had been terminated because of the expiry of the statutory time-limit. The applicant pointed out that she had lodged some thirteen complaints and that four decisions had been quashed. She considered that the inquiry had not been completed within a reasonable time and that it had been unduly protracted. The applicant, together with other victims, had been left with no redress and the experts had received no punishment. 130. The Government insisted that the tissue removal had been carried out in accordance with domestic law. The applicant had failed to demonstrate that the removal of tissue from her husband ’ s body had amounted to inhuman or degrading treatment. With reference to Selçuk and Asker v. Turkey (24 April 1998, § 78, Reports 1998 ‑ II), the Government argued that the applicant had failed to demonstrate “anguish and suffering” on account of the removal of tissue without her prior consent. With reference to Ireland v. the United Kingdom (18 January 1978, § 167, Series A no. 25), they likewise argued that she had failed to demonstrate that she had experienced “ feelings of fear, anguish and inferiority capable of humiliating and debasing ” her. The Government reiterated that only dura mater had been removed from the body. Even if the applicant might have experienced a certain level of emotional suffering and distress on account of the removal of tissue without her consent or knowledge, accompanied by the suffering and distress inherent in losing a close family member, such suffering did not attain the minimum level of severity required for it to fall within the scope of Article 3 of the Convention. The Government also argued that during the autopsy, the heart had also been removed from the applicant ’ s husband ’ s body and that dura mater had in any event had to be removed and examined in order to assess whether his skull had been damaged. This could also be said to have caused emotional suffering, but would not attain the minimum level of severity required for Article 3 to apply. 131. The Government pointed out that the applicant had not been present at Sigulda Hospital and that it had been the responsibility of the closest relatives to inform the medical staff of their whereabouts and to contact them if they wished to object to tissue removal. They further emphasised that the removal had taken place under the agreement with the company, that tissues had been sent to the company for transformation into bio ‑ implants and then sent back to Latvia for transplantation purposes, and that the aim behind this had been to improve and save the lives of others. The Government emphasised that tissue removal had to be carried out “very quickly” and that even the most insignificant of delays would have meant losing some of the precious time during which tissue removal was possible. The Government, relying on the fact that during his lifetime the applicant ’ s husband had not objected to tissue removal or expressed such a view to the applicant, argued that she could not claim that it had been carried out contrary to his or her wishes. 132. The Government further submitted that the applicant ’ s allegation that her deceased husband ’ s legs had been tied together was false since it was not substantiated by any credible evidence. In their submission, according to the information provided by the Forensic Centre, his body had been tidied, cleansed and washed after the autopsy. They reiterated that no complaints had been registered concerning the condition of his body. According to the autopsy report, his legs had not been damaged in the car accident. In the present case, the standard of proof “beyond reasonable doubt” was not fulfilled as the applicant ’ s allegation concerning the condition of her deceased husband ’ s body had not been substantiated by any evidence. 2. The Court ’ s assessment (a) General principles 133. In Svinarenko and Slyadnev v. Russia ([GC], nos. 32541/08 and 43441/08, §§ 113-18, ECHR 2014) the Court recently summarised the applicable principles as follows. “ 113. As the Court has repeatedly stated, Article 3 of the Convention enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim ’ s behaviour (see, among many other authorities, Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV). 114. Ill ‑ treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see, for example, Jalloh v. Germany [GC], no. 54810/00, § 67, ECHR 2006 ‑ IX). Although the question whether the purpose of the treatment was to humiliate or debase the victim is a factor to be taken into account, the absence of any such purpose cannot conclusively rule out a finding of violation of Article 3 (see, among other authorities, V. v. the United Kingdom [GC], no. 24888/94, § 71, ECHR 1999-IX). 115. Treatment is considered to be ‘ degrading ’ within the meaning of Article 3 when it humiliates or debases an individual, showing a lack of respect for, or diminishing, his or her human dignity, or when it arouses feelings of fear, anguish or inferiority capable of breaking an individual ’ s moral and physical resistance (see M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 220, ECHR 2011, and El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 202, ECHR 2012). The public nature of the treatment may be a relevant or aggravating factor in assessing whether it is ‘ degrading ’ within the meaning of Article 3 (see, inter alia, Tyrer v. the United Kingdom, 25 April 1978, § 32, Series A no. 26; Erdoğan Yağız v. Turkey, no. 27473/02, § 37, 6 March 2007; and Kummer v. the Czech Republic, no. 32133/11, § 64, 25 July 2013). 116. In order for treatment to be ‘ degrading ’, the suffering or humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment (see V. v. the United Kingdom, cited above, § 71). ... 118. Respect for human dignity forms part of the very essence of the Convention (see Pretty v. the United Kingdom, no. 2346/02, § 65, ECHR 2002 ‑ III). The object and purpose of the Convention as an instrument for the protection of individual human beings require that its provisions be interpreted and applied so as to make its safeguards practical and effective. Any interpretation of the rights and freedoms guaranteed has to be consistent with the general spirit of the Convention, an instrument designed to maintain and promote the ideals and values of a democratic society (see Soering v. the United Kingdom, 7 July 1989, § 87, Series A no. 161). ” 134. The Court further notes that in assessing evidence in connection with a claim of a violation of Article 3 of the Convention, it adopts the standard of proof “beyond reasonable doubt”. Such proof may, however, follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Farbtuhs v. Latvia, no. 4672/02, § 54, 2 December 2004, and Bazjaks v. Latvia, no. 71572/01, § 74, 19 October 2010). (b) Application in the present case 135. Turning to the circumstances of the instant case, the Court observes that the applicant alleged emotional suffering on account of the fact that the removal of tissue from her husband ’ s body had been carried out contrary to domestic law without her prior consent or knowledge and that she had been forced to bury her husband with his legs tied together; the Government argued that the first of these allegations did not reach the level of severity for Article 3 of the Convention to apply and that the second was not proved “beyond reasonable doubt”. 136. The Court notes that the applicant learned about the fact of tissue removal two years after her husband ’ s funeral and that a further period of some five years elapsed before the final conclusions were reached as to the possibility of criminal acts in this respect. The applicant alleged, and the Government did not deny, that during this entire time she had not been informed what organs or tissue had been removed from her deceased husband ’ s body; she had learned the answer only upon receiving the Government ’ s observations in the present case. Also, the applicant had come up with several reasons as to why her husband ’ s legs had been tied together and her submissions were further corroborated by written evidence from a family member. In view of these facts the applicant, as her husband ’ s closest relative, may have endured emotional suffering. 137. The Court ’ s task is to ascertain whether, in view of the specific circumstances of the case, such suffering had a dimension capable of bringing it within the scope of Article 3 of the Convention. The Court has never questioned in its case-law the profound psychological impact of a serious human rights violation on the victim ’ s family members. However, in order for a separate violation of Article 3 of the Convention to be found in respect of the victim ’ s relatives, there should be special factors in place giving their suffering a dimension and character distinct from the emotional distress inevitably stemming from the aforementioned violation itself (see Salakhov and Islyamova v. Ukraine, no. 28005/08, § 199, 14 March 2013). Relevant elements include the closeness of the family bond and the way the authorities responded to the relative ’ s enquiries (see, for example, Çakıcı, cited above, § 98, where this principle was applied in the context of enforced disappearance; Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, no. 13178/03, § 61, ECHR 2006 -XI, where the Court further relied on this principle in consideration of a mother ’ s complaint regarding her suffering on account of her five-year old daughter ’ s detention in another country; and M.P. and Others v. Bulgaria, no. 22457/08, §§ 122-24, 15 November 2011, where the relevant complaint concerned the suffering of the relatives of an abused child). In the cases cited the Court attached weight to the parent-child bond. It has held that the essence of a violation lay in the authorities ’ reactions and attitudes to the situation when it was brought to their attention ( see Salakhov and Islyamova, cited above, § 200). Similar considerations may be said to be applicable in the present case involving the applicant and her deceased husband. 138. The Court would distinguish the present case from cases brought before the Court by family members of the victims of “disappearances” or extra-judicial killings committed by the security forces (see, for example, Luluyev and Others v. Russia, no. 69480/01, §§ 116-18, ECHR 2006 ‑ XIII), and from cases where people were killed as a result of actions of the authorities in contravention of Article 2 of the Convention ( see, for example, Esmukhambetov and Others v. Russia, no. 23445/03, §§ 138 ‑ 51 and 190, 29 March 2011). Nor is there any suggestion in the present case that the body had been mutilated (see Akkum and Others v. Turkey, no. 21894/93, §§ 258-59, ECHR 2005 ‑ II, and Akpınar and Altun v. Turkey, no. 56760/00, §§ 84-87, 27 February 2007 ) or dismembered and decapitated (see Khadzhialiyev and Others v. Russia, no. 3013/04, §§ 120-22, 6 November 2008). 139. While it cannot be said that the applicant was suffering from any prolonged uncertainty regarding the fate of her husband, the Court finds that she had to face a long period of uncertainty, anguish and distress in not knowing what organs or tissue had been removed from her husband ’ s body, and in what manner and for what purpose this had been done. In this context, the Government ’ s argument that only dura mater was removed is of no relevance here. In any event, the applicant discovered this only during the proceedings before the Court. At the time of the events, the applicant had no reason to question the activities carried out in the Forensic Centre, as her husband ’ s body had been delivered there to establish the cause of death. Subsequently, a criminal inquiry was opened to determine the legality of the tissue removal carried out in the Forensic Centre and it was revealed that tissue had been removed not only from her husband ’ s body but also from hundreds of other persons (nearly 500 people in only three years, by way of example ) over a period of some nine years (see paragraphs 13 -33 above). It was also established that removals had been carried out under a State-approved agreement with a pharmaceutical company abroad. This scheme had been implemented by State officials – forensic experts – who, in addition to their ordinary duties of carrying out forensic examinations, had carried out removals on their own initiative (see paragraph 15 above). These are special factors which caused additional suffering for the applicant. 140. The Court considers that the applicant ’ s suffering had a dimension and character which went beyond the suffering inflicted by grief following the death of a close family member. The Court has already found a violation of Article 8 of the Convention because, as the closest relative, the applicant had a right to express consent or refusal in relation to tissue removal, but the corresponding obligation or margin of discretion on the part of the domestic authorities was not clearly established by Latvian law and there were no administrative or legal regulations in this respect (see paragraphs 10 9 -1 6 above). While there are considerable differences between the present case and the above-cited Petrova case as concerns the scale and magnitude of the organ or tissue removal, the Court has nonetheless noted in both cases certain structural deficiencies which have prevailed in the field of organ and tissue transplantation in Latvia. These factors are also to be taken into account in the Latvian context as far as Article 3 of the Convention is concerned. In addition, not only were the applicant ’ s rights as the closest relative not respected, but she was also faced with conflicting views on the part of the domestic authorities as to the scope of the obligations enshrined in national law. Furthermore, while the security police and various prosecutors disagreed as to whether or not domestic law was sufficiently clear to allow a person to be prosecuted on the basis thereof, they all considered that removal without consent was unlawful (see paragraphs 18, 20, 22, 24 and 25 above). However, criminal prosecution had become time-barred by the time their disagreement had been resolved (see paragraph 27 above) and, in any event, the domestic court would not have allowed such a prosecution because the law was not sufficiently clear (see paragraph 28 above). These facts demonstrate the manner in which the domestic authorities dealt with the complaints brought to their attention and their disregard vis-à-vis the victims of these acts and their close relatives, including the applicant. These circumstances contributed to feelings of helplessness on the part of the applicant in the face of a breach of her personal rights relating to a very sensitive aspect of her private life, namely giving consent or refusal in relation to tissue removal, and were coupled with the impossibility of obtaining any redress. 141. The applicant ’ s suffering was further aggravated by the fact that she was not informed of what exactly had been done in the Forensic Centre. She was not informed of the tissue removal and, having discovered that her deceased husband ’ s legs were tied together on the day of the funeral, assumed this to be a consequence of the car accident. Two years later she was informed of the pending criminal inquiry and the potentially unlawful acts carried out in respect of her deceased husband ’ s body. It is clear that at this point the applicant experienced particular anguish and realised that her husband might possibly have been buried with his legs tied together as a consequence of the acts that had been carried out in the Forensic Centre on his body. The Government ’ s argument that this was not proved “beyond reasonable doubt” is misplaced, since the applicant ’ s complaint relates to the anguish resulting from precisely that uncertainty regarding the acts carried out at the Forensic Centre in respect of her deceased husband ’ s body. 142. In the special field of organ and tissue transplantation it has been recognised that the human body must still be treated with respect even after death. Indeed, international treaties including the Convention on Human Rights and Biomedicine and the Additional Protocol, as noted in the Explanatory Report to the latter, have been drafted to safeguard the rights of organ and tissue donors, living or deceased. The object of these treaties is to protect the dignity, identity and integrity of “everyone” who has been born, whether now living or dead (see paragraph 37 above). As cited in paragraph 133 above, respect for human dignity forms part of the very essence of the Convention; treatment is considered “degrading” within the meaning of Article 3 of the Convention when, inter alia, it humiliates an individual, showing a lack of respect for human dignity. The applicant ’ s suffering was caused not only by the breach of her rights as the closest relative and the ensuing uncertainty regarding what had been done in the Forensic Centre, but was also due to the intrusive nature of the acts carried out on her deceased husband ’ s body and the anguish she suffered in that regard as his closest relative. 143. In these specific circumstances, the Government ’ s objections that the applicant ’ s complaint does not fall within the scope of Article 3 of the Convention and that she cannot be considered a victim in that regard are dismissed. The Court has no doubt that the suffering caused to the applicant in the present case amounted to degrading treatment contrary to Article 3 of the Convention. It accordingly finds a violation of that provision. III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 144. Lastly, the applicant relied on Article 13 of the Convention in connection with her contention that there were several possible interpretations of domestic law. 145. The Government contested that argument. 146. The Court notes that this complaint is linked to the complaint examined above under Article 8 of the Convention and must therefore likewise be declared admissible. 147. The Court considers, however, that it has already examined the lack of clarity of the domestic law under Article 8 of the Convention above. Accordingly, it does not consider it necessary to examine this complaint separately under Article 13 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 148. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 149. The applicant claimed 40,000 euros (EUR) in respect of non-pecuniary damage. 150. The Government argued that the applicant had not sufficiently demonstrated that she had sustained non-pecuniary damage to the extent claimed and deemed the amount claimed by her excessive and exorbitant. With reference to Shannon v. Latvia (no. 32214/03, § 84, 24 November 2009), the Government considered that the finding of a violation alone would constitute adequate and sufficient compensation. 151. Having regard to the nature of the violations found in the present case and deciding on an equitable basis, the Court awards the applicant EUR 16, 000 in respect of non-pecuniary damage. B. Costs and expenses 152. The applicant also claimed EUR 500 for the costs and expenses incurred before the Court. 153. The Government did not contest the applicant ’ s claim under this head. They considered it sufficiently substantiated and reasonable. 154. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 500 covering costs under all heads. C. Default interest 155. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 8 (right for respect to private and family life) and a violation of article 3 (prohibition of inhuman or degrading treatment) of the Convention. It found in particular that Latvian law regarding the operation of the consent requirement on tissue removal lacked clarity and did not have adequate legal safeguards against arbitrariness: although it set out the legal framework allowing the closest relatives to express consent or refusal in relation to tissue removal, it did not clearly define the corresponding obligation or discretion of experts to obtain consent. Indeed, the manner in which the relatives’ right to express their wishes was to be exercised and the scope of the obligation to obtain consent were the subject of disagreement among the domestic authorities themselves. The Court further concluded that the applicant had had to face a long period of uncertainty and distress concerning the nature, manner and purpose of the tissue removal from her husband’s body, underlining that, in the special field of organ and tissue transplantation, the human body had to be treated with respect even after death. |
832 | Interception of communications, phone tapping and secret surveillance | II. RELEVANT DOMESTIC LAW A. The Swiss Criminal Code 34. Under Article 320 § 1 of the Swiss Criminal Code, any person who discloses a secret entrusted to him in the capacity of civil servant makes himself liable to imprisonment or a fine. Under Article 340 § 1 (7), the offence comes under the jurisdiction of the Federal Court. B. The Federal Criminal Procedure Act 35. The relevant provisions of the Federal Criminal Procedure Act (“the FCPA”), in the version of 23 March 1979, which was in force at the material time, were worded as follows: Section 66 “1. The investigating judge may order monitoring of the accused’s or suspect’s postal correspondence and telecommunications… 1 bis. Where the conditions justifying the monitoring of the accused or suspect are satisfied, third parties may also be monitored if specific facts give rise to the presumption that they are receiving or imparting information intended for the accused or suspect or sent by him. Persons who, by virtue of section 77, may refuse to give evidence shall be exempt. … 1 ter. Recordings which are not needed for the conduct of an investigation shall be kept in a separate place, under lock and key, and shall be destroyed at the end of the proceedings…” Section 66 bis “1. Within twenty-four hours of his decision, the investigating judge shall submit a copy of it, accompanied by the file and a brief statement of his reasons, for approval by the President of the Indictment Division. 2. The decision shall remain in force for not more than six months; the investigating judge may extend its validity for one or more further periods of six months. The order extending its validity, accompanied by the file and the statement of reasons, must be submitted, not later than ten days before expiry of the time-limit, for approval by the President of the Indictment Division. 3. The investigating judge shall discontinue the monitoring as soon as it becomes unnecessary, or immediately if his decision is rescinded.” Section 66 ter “1. The President of the Indictment Division shall scrutinise the decision in the light of the statement of reasons and the file. Where he finds that there has been a breach of federal law, including any abuse of a discretionary power, he shall rescind the decision. 2. He may authorise monitoring provisionally; in that case, he shall lay down a time-limit within which the investigating judge must justify the measure, either by adding any relevant material to the file or orally.” Section 66 quater “1. The procedure shall be kept secret even from the person concerned. The President of the Indictment Division shall give brief reasons for his decision and notify the investigating judge thereof within five days of the date when the monitoring began, or, where the period of validity has been extended, before the further period begins. 2. The President of the Indictment Division shall ensure that the interception measures are discontinued on expiry of the time-limit.” Section 72 “1. Before the opening of a preliminary investigation the Principal Public Prosecutor may order interception of postal correspondence and telecommunications…” Section 77 “Clergymen, lawyers, notaries, doctors, pharmacists, midwives, and their auxiliaries, cannot be required to give evidence about secrets confided to them on account of their ministry or profession.” 36. By the Telecommunications Act of 21 June 1991, which has been in force since 1 May 1992, the following relevant provisions were supplemented as follows (new text shown in italics): Section 66 “1. The investigating judge may order monitoring of the accused’s or suspect’s postal correspondence and telecommunications if (a) The criminal proceedings concern a major offence whose seriousness or particular nature justifies intervention; and if (b) Specific facts cause the person who is to be monitored to be suspected of being a principal or accessory in the commission of the offence; and if (c) Without interception, the necessary investigations would be significantly more difficult to conduct or if other investigative measures have produced no results. 1 bis. … The telecommunications connection of third parties may be monitored at any time if there are reasons to suspect that it is being used by the accused. …” 37. By the Federal Law of 4 October 1991, which has been in force since 15 February 1992, the following relevant provisions were amended as follows: Section 66 quinquies “1. The investigating judge shall inform the person concerned, within thirty days of the close of the proceedings, of the reasons for the monitoring carried out, the means employed and its duration. …” Section 72 “… 3. Sections 66 to 66 quinquies shall be applicable by analogy .” C. Legal literature and case-law on the scope of professional privilege 38. In the opinion of academic writers, information not specifically connected with a lawyer’s work on instructions from a party to proceedings is not covered by professional privilege (see, for example, G. Piquerez, Précis de procédure pénale suisse, Lausanne, 1994, p. 251, no. 1264, and B. Corboz, “ Le secret professionnel de l’avocat selon l’article 321 CP ”, Semaine judiciaire, Geneva, 1993, pp. 85–87). 39. Thus, in a judgment of 29 December 1986 (see ATF [Judgments of the Swiss Federal Court] 112 lb 606), the Federal Court held that a lawyer may not decline to give evidence about confidential matters of which he has learned in the course of work not going beyond the management of assets and the investment of funds. In another judgment, of 16 October 1989, the Federal Court similarly held that a lawyer who is the director of a company may not plead professional privilege to justify his refusal to give evidence ( ATF 115 la 197). In a case where a lawyer had complained of a seizure of documents, the Federal Court, after considering the complaint in the particular light of Article 8 of the Convention, once again upheld that case-law on 11 September 1991 ( ATF 117 la 341). Similarly, in connection with medical confidentiality, the Federal Court has held that information imparted to a doctor in his private capacity is not protected by professional privilege ( ATF 101 la 10, judgment of 5 February 1975). PROCEEDINGS BEFORE THE COMMISSION 40. Mr Kopp applied to the Commission on 15 December 1993. Relying on Articles 8 and 13 of the Convention, he complained of the monitoring of his telephone lines and of the lack of an effective remedy in that connection. 41. The Commission (First Chamber) declared the application (23224/94) admissible on 12 April 1996. In its report of 16 October 1996 (Article 31), it expressed the unanimous opinion that there had been a breach of Article 8 but no breach of Article 13. The full text of the Commission’s opinion is reproduced as an annex to this judgment [4]. FINAL SUBMISSIONS TO THE court 42. In their memorial the Government asked the Court “to declare that there has been no violation of the Convention on the part of the Swiss authorities by virtue of the facts which gave rise to the application introduced by Mr Kopp against Switzerland”. 43. The applicant asked the Court to uphold his application. AS TO THE LAW I. Alleged violation of Article 8 of the Convention 44. Mr Kopp submitted that the interception of his telephone communications had breached Article 8 of the Convention, which provides: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. The Government’s preliminary objection 45. The Government submitted as their principal argument, as they had done before the Commission, that the applicant had not exhausted domestic remedies (Article 26 of the Convention), not having raised his complaint in substance before the national authorities. Before the Federal Council he had argued that it was only the application of section 66(1 bis ) of the Federal Criminal Procedure Act (“the FCPA” – see paragraph 35 above) which had been contrary to Article 8 of the Convention, without contesting the lawfulness as such of the tapping of his telephone lines. 46. The applicant, on the other hand, asserted that he had complied with all the requirements of Article 26 of the Convention in so far as he had contended that the monitoring of his law firm’s telephone lines had no legal basis in Swiss law. 47. The Court reiterates that the purpose of Article 26 is to afford the Contracting States the opportunity of preventing or putting right – usually through the courts – the violations alleged against them before those allegations are submitted to the Convention institutions. Thus the complaint to be submitted to the Commission must first have been made to the appropriate national courts, at least in substance, in accordance with the formal requirements of domestic law and within the prescribed time-limits. However, Article 26 must be applied with some degree of flexibility and without excessive formalism (see, for example, the Ankerl v. Switzerland judgment of 23 October 1996, Reports of Judgments and Decisions 1996-V, p. 1565, § 34, and the K.-F. v. Germany judgment of 27 November 1997, Reports 1997-VII, pp. 2670–71, § 46). 48. In the present case, the Court notes that in Mr Kopp’s administrative appeal to the Federal Council of 2 December 1992 his lawyer complained, under the heading “Violation of Article 8 of the Convention”, that the tapping of his telephone lines had been unlawful (see paragraph 30 above). He maintained in particular that section 66(1 bis ) of the FCPA expressly prohibited the interception of lawyers’ telephone calls and consequently that the monitoring of the lines of the applicant’s law firm had contravened Swiss law. 49. The Court therefore considers, like the Commission, that the applicant raised in substance, before the national authorities, his complaint relating to Article 8 of the Convention. The preliminary objection must accordingly be dismissed. B. Merits of the complaint 1. Applicability of Article 8 50. In the Court’s view, it is clear from its case-law that telephone calls made from or to business premises, such as those of a law firm, may be covered by the notions of “private life” and “correspondence” within the meaning of Article 8 § 1 (see, among other authorities, the Halford v. the United Kingdom judgment of 25 June 1997, Reports 1997-III, p. 1016, § 44, and, mutatis mutandis, the Niemietz v. Germany judgment of 16 December 1992, Series A no. 251-B, pp. 33–35, §§ 28–33). This point was in fact not disputed. 2. Compliance with Article 8 (a) Existence of an interference 51. The Government contended that the question whether there had really been interference by the authorities with the applicant’s private life and correspondence remained open, since none of the recorded conversations in which he had taken part had been brought to the knowledge of the prosecuting authorities, all the recordings had been destroyed and no use whatsoever had been made of any of them. 52. The Court notes that it was not contested that the Federal Public Prosecutor had ordered the monitoring of the telephone lines of Mr Kopp’s law firm, that the President of the Indictment Division of the Federal Court had approved that measure and that it had lasted from 21 November to 11 December 1989 (see paragraphs 16–18 above). 53. Interception of telephone calls constitutes “interference by a public authority”, within the meaning of Article 8 § 2, with the exercise of a right guaranteed to the applicant under paragraph 1 (see, among other authorities, the Malone v. the United Kingdom judgment of 2 August 1984, Series A no. 82, p. 30, § 64, and the above-mentioned Halford judgment, p. 1017, § 48 in fine ). The subsequent use of the recordings made has no bearing on that finding. (b) Justification for the interference 54. Such interference breaches Article 8 unless it is “in accordance with the law”, pursues one or more of the legitimate aims referred to in paragraph 2 and is, in addition, “necessary in a democratic society” to achieve those aims. (i) “In accordance with the law” 55. The expression “in accordance with the law”, within the meaning of Article 8 § 2, requires firstly that the impugned measure should have some basis in domestic law; it also refers to the quality of the law in question, requiring that it should be accessible to the person concerned, who must moreover be able to foresee its consequences for him, and compatible with the rule of law. – Whether there was a legal basis in Swiss law 56. The applicant submitted that in the present case there was no legal basis in Swiss law, since sections 66(1 bis ) and 77 of the FCPA (see paragraph 35 above) expressly prohibited the tapping of a lawyer’s telephone lines where the latter was being monitored as a third party. 57. The Commission accepted this argument. It took the view that the purpose of the legal provisions in question was to protect the professional relationship between, among others, a lawyer and his clients. For this special relationship to be respected, it had to be assumed that all the telephone calls of a law firm were of a professional nature. Consequently, the Swiss authorities’ interpretation to the effect that these provisions gave them the power to record and listen to a lawyer’s telephone conversations before deciding whether they were covered by professional privilege could not be accepted. 58. The Government maintained in the first place that telephone tapping in the course of proceedings conducted by the federal authorities was governed by a set of exhaustive and detailed rules (see paragraphs 35–37 above). Moreover, according to sections 66(1 bis ) and 77 of the FCPA, and the relevant legal literature and case-law, legal professional privilege covered only activities specific to a lawyer’s profession. 59. The Court reiterates that it is primarily for the national authorities, notably the courts, to interpret and apply domestic law (see, among many other authorities, the above-mentioned Malone judgment, p. 35, § 79, and the Kruslin v. France and Huvig v. France judgments of 24 April 1990, Series A no. 176-A and B, p. 21, § 29, and p. 53, § 28, respectively). In principle, therefore, it is not for the Court to express an opinion contrary to that of the Federal Department of Justice and Police and the Federal Council on the compatibility of the judicially ordered tapping of Mr Kopp’s telephone with sections 66(1 bis ) and 77 of the FCPA. 60. Moreover, the Court cannot ignore the opinions of academic writers and the Federal Court’s case-law on the question, which the Government cited in their memorial (see paragraphs 38–39 above). In relation to paragraph 2 of Article 8 of the Convention and other similar clauses, the Court has always understood the term “law” in its “substantive” sense, not its “formal one”, and has in particular included unwritten law therein (see the above-mentioned Kruslin and Huvig judgments, pp. 21–22, § 29 in fine, and pp. 53–54, § 28 in fine, respectively). 61. In short, the interference complained of had a legal basis in Swiss law. – “Quality of the law” 62. The second requirement which emerges from the phrase “in accordance with the law” – the accessibility of the law – does not raise any problem in the instant case. 63. The same is not true of the third requirement, the law’s “foreseeability” as to the meaning and nature of the applicable measures. 64. The Court reiterates in that connection that Article 8 § 2 requires the law in question to be “compatible with the rule of law”. In the context of secret measures of surveillance or interception of communications by public authorities, because of the lack of public scrutiny and the risk of misuse of power, the domestic law must provide some protection to the individual against arbitrary interference with Article 8 rights. Thus, the domestic law must be sufficiently clear in its terms to give citizens an adequate indication as to the circumstances in and conditions on which public authorities are empowered to resort to any such secret measures (see, as the most recent authority, the above-mentioned Halford judgment, p. 1017, § 49). 65. The Government submitted that the relevant legislation taken as a whole and the case-law of the Federal Court warranted the conclusion that the telephone tapping ordered in the instant case did in fact satisfy the requirement of foreseeability, as defined by the European Court. 66. The Court must therefore examine the “quality” of the legal rules applicable to Mr Kopp in the instant case. 67. It notes in the first place that the telephone lines of the applicant’s law firm were tapped pursuant to sections 66 et seq. of the FCPA (see paragraph 25 above) and that he was monitored as a third party. Under section 66(1 bis ) of the FCPA, “… third parties may also be monitored if specific facts give rise to the presumption that they are receiving or imparting information intended for the accused or suspect or sent by him. Persons who, by virtue of section 77, may refuse to give evidence shall be exempt.” Section 77 of the FCPA provides: “… lawyers … cannot be required to give evidence about secrets confided to them on account of their … profession.” 68. On the face of it, the text seems clear and would appear to prohibit the monitoring of a lawyer’s telephone lines when he is neither suspected nor accused. It is intended to protect the professional relations between a lawyer and his clients through the confidentiality of telephone conversations. 69. In the present case, moreover, the President of the Indictment Division adverted to that principle of the law, since the order of 23 November 1989 (see paragraph 18 above) states: “the lawyers’ conversations are not to be taken into account.” Similarly the Federal Public Prosecutor’s Office mentioned it in the letter of 9 March 1990 informing the applicant that his telephone lines had been tapped (see paragraph 25 above) and the Federal Council likewise referred to it in its decision of 30 June 1993 (see paragraph 31 above). 70. However, as the Court has already observed (see paragraph 52 above), all the telephone lines of Mr Kopp’s law firm were monitored from 21 November to 11 December 1989. 71. The Government sought to resolve this contradiction by referring to the opinions of academic writers and the Federal Court’s case-law to the effect that legal professional privilege covered only matters connected with a lawyer’s profession. They added that Mr Kopp, the husband of a former member of the Federal Council, had not had his telephones tapped in his capacity as a lawyer. In the instant case, in accordance with Swiss telephone-monitoring practice, a specialist Post Office official had listened to the tape in order to identify any conversations relevant to the proceedings in progress, but no recording had been put aside and sent to the Federal Public Prosecutor’s Office. 72. The Court, however, is not persuaded by these arguments. Firstly, it is not for the Court to speculate as to the capacity in which Mr Kopp had had his telephones tapped, since he was a lawyer and all his law firm’s telephone lines had been monitored. Secondly, tapping and other forms of interception of telephone conversations constitute a serious interference with private life and correspondence and must accordingly be based on a “law” that is particularly precise. It is essential to have clear, detailed rules on the subject, especially as the technology available for use is continually becoming more sophisticated (see the above-mentioned Kruslin and Huvig judgments, p. 23, § 33, and p. 55, § 32, respectively). In that connection, the Court by no means seeks to minimise the value of some of the safeguards built into the law, such as the requirement at the relevant stage of the proceedings that the prosecuting authorities’ telephone-tapping order must be approved by the President of the Indictment Division (see paragraphs 18 and 35 above), who is an independent judge, or the fact that the applicant was officially informed that his telephone calls had been intercepted (see paragraph 25 above). 73. However, the Court discerns a contradiction between the clear text of legislation which protects legal professional privilege when a lawyer is being monitored as a third party and the practice followed in the present case. Even though the case-law has established the principle, which is moreover generally accepted, that legal professional privilege covers only the relationship between a lawyer and his clients, the law does not clearly state how, under what conditions and by whom the distinction is to be drawn between matters specifically connected with a lawyer’s work under instructions from a party to proceedings and those relating to activity other than that of counsel. 74. Above all, in practice, it is, to say the least, astonishing that this task should be assigned to an official of the Post Office’s legal department, who is a member of the executive, without supervision by an independent judge, especially in this sensitive area of the confidential relations between a lawyer and his clients, which directly concern the rights of the defence. 75. In short, Swiss law, whether written or unwritten, does not indicate with sufficient clarity the scope and manner of exercise of the authorities’ discretion in the matter. Consequently, Mr Kopp, as a lawyer, did not enjoy the minimum degree of protection required by the rule of law in a democratic society. There has therefore been a breach of Article 8. (ii) Purpose and necessity of the interference 76. Having regard to the above conclusion, the Court, like the Commission, does not consider it necessary to review compliance with the other requirements of paragraph 2 of Article 8 in this case. II. Alleged violation of Article 13 of the Convention 77. Article 13 of the Convention provides: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 78. Mr Kopp expressly stated that he did not intend to pursue this complaint before the Court, and the Court considers that it is not required to consider it of its own motion. III. application of Article 50 of the Convention 79. Under Article 50 of the Convention, “If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 80. Mr Kopp claimed 550,000 Swiss francs (CHF) for pecuniary damage on account of the effects that publication of the fact that his law firm’s telephone lines had been tapped had had on his professional activities and his firm’s good name. He also claimed CHF 1,000 for non-pecuniary damage, on the ground that the monitoring of his telephone lines had seriously perturbed his relations with his family and the members of his firm. 81. The Government maintained that the amounts claimed were excessive and that the applicant had not adduced evidence of either the existence of pecuniary damage or a causal connection between any violation of the Convention and such damage. Furthermore, if the applicant had lost clients, it was not because of the telephone tapping in issue but for other reasons, such as the fact that he had been convicted of fraud and forging securities or the fact that his name had been struck off the roll of members of the Bar. As regards non-pecuniary damage, the Government submitted that if the Court were to find a violation, that would constitute sufficient just satisfaction. 82. The Delegate of the Commission submitted that compensation should be awarded for loss of income, but left the amount to the Court’s discretion. He was of the view that the compensation claimed for non-pecuniary damage was justified. 83. As regards pecuniary damage, the Court considers that Mr Kopp was not able to prove the existence of a causal connection between the interception of his telephone calls and the alleged loss. As to non-pecuniary damage, the Court considers that the finding of a violation of Article 8 constitutes sufficient compensation. B. Costs and expenses 84. The applicant also claimed CHF 67,640 in respect of his costs and expenses for the proceedings in the Swiss courts and CHF 58,291 in respect of those he had incurred for the proceedings before the Convention institutions. He further sought CHF 174,000 for research he had conducted himself and for out-of-pocket expenses. 85. The Government submitted that if the Court were to find a violation, an award of CHF 21,783 for costs and expenses would satisfy the requirements of Article 50. If the finding of a violation concerned only one of the two complaints raised by the applicant, it would be appropriate for the Court to reduce that amount in an equitable proportion. 86. The Delegate of the Commission left the amount to be awarded for costs and expenses to the Court’s discretion. 87. On the basis of the information in its possession and its case-law on this question, and taking into account the fact that only the applicant’s complaint under Article 8 of the Convention has given rise to the finding of a violation, as the applicant expressly stated that he no longer wished to pursue the complaint relating to Article 13 of the Convention (see paragraph 78 above), the Court decides, on an equitable basis, to award the applicant the sum of CHF 15,000. C. Default interest 88. According to the information available to the Court, the statutory rate of interest applicable in Switzerland at the date of adoption of the present judgment is 5% per annum. | The Court held that there had been a violation of Article 8 of the Convention, finding that Swiss law did not indicate with sufficient clarity the scope and manner of exercise of the authorities’ discretion in the matter. The Court consequently considered that the applicant, as a lawyer, had not enjoyed the minimum degree of protection required by the rule of law in a democratic society. |
176 | Right to life (Article 2 of the European Convention on Human Rights) | II. RELEVANT DOMESTIC LAW AND PRACTICE 34. Section 172 of the Code of Criminal Procedure, after a new sub-section 3 was added in 2013, provides as follows: “ Decisions not to prosecute Section 172- (1) If, at the end of the investigation, no evidence is discovered capable of creating a sufficient reason to instigate a criminal prosecution, or if instigating a prosecution is not possible, the public prosecutor shall render a decision not to prosecute. This decision shall then be communicated to the victim of the offence and to the suspect whose statement was taken or who was questioned in the course of the investigation. The right to lodge an objection, as well as the authority to which the objection may be lodged and the time-limit for lodging it, shall be set out in the decision. (2) No prosecution may be brought in respect of the act at issue unless new evidence is uncovered after the decision not to prosecute has been taken. (3) (Added on 11/04/2013 pursuant to section 19 of Law No. 6459) If it is established in a final judgment of the European Court of Human Rights that the decision not to prosecute was taken without an effective investigation having been carried out and if a request is made to that effect within three months of the [European Court of Human Right ’ s] judgment becoming final, a new investigation shall be opened.” THE LAW I. ALLEGED VIOLATION OF ARTICLES 2, 6 AND 13 OF THE CONVENTION 35. The applicant complained under Articles 2, 6 and 13 of the Convention that the national authorities had failed to carry out an effective investigation into the death of her daughter. 36. The Court considers it appropriate to examine these complaints solely from the standpoint of Article 2 of the Convention, which reads as follows: “1. Everyone ’ s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.” 37. The Government contested that argument. A. Admissibility 38. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions a. The applicant 39. The applicant alleged that the cause of her daughter ’ s death had not been established by the domestic authorities. Although it had not been stated in the autopsy reports that the death had been caused by any drug, the prosecutor had wrongly concluded that the death had been caused as a result of lung complications caused by medicinal intoxication. In the opinion of the applicant, the prosecutor should have sought further expert reports on the cause of death. The applicant also alleged that the Government had failed to comply with the Court ’ s request and had failed to obtain further medical reports from their forensic authorities. 40. Furthermore, despite the fact that O.O. had told the police officer that he had hit Gülperi O. on the day in question, the prosecutor had not investigated whether the cause of death could have been an internal haemorrhage caused by the blows inflicted by O.O. 41. The applicant maintained that the prosecutor had failed to question O.O. despite the seriousness of the allegations directed against him. The statement taken from O.O. by the police officer had been too brief and had not addressed the issues surrounding the death. O.O. had not been questioned, for example, as to why he had falsely informed the doctors that Gülperi O. had taken the medicines “Prent” and Muscoril”. 42. The applicant also highlighted the authorities ’ failure to visit the couple ’ s flat, where the couple had allegedly had a fight, and submitted that such a visit would have helped the authorities to clarify the nature of that fight. 43. The applicant considered it unfortunate that even before the investigation had been concluded the prosecutor had referred to her daughter ’ s death as “suicide”. In the opinion of the applicant, this showed that the prosecutor had not been impartial and had made her mind up prematurely. 44. Finally, the applicant alleged that the real problem in the present case was the national authorities ’ continuing tolerance towards domestic violence against women, which was a systemic problem in Turkey. Referring to the Court ’ s findings about the national authorities ’ approach to domestic violence in Turkey in the case of Opuz v. Turkey ( no. 33401/02, § § 192-198, ECHR 2009 ), the applicant alleged that the national authorities would have complied with their procedural obligation and carried out an effective investigation had her case not involved the issue of domestic violence. b. The Government 45. The Government were of the opinion that their authorities had carried out an effective investigation into the applicant ’ s daughter ’ s death. The prosecutor, who had been informed about the incident by the police, had immediately started an investigation without waiting for an official complaint to be lodged. The family ’ s access to the investigation had been ensured and the investigation had been conducted with the requisite expediency. 46. The Government considered that the applicant ’ s argument that domestic violence against women was a systemic problem in Turkey which was tolerated by the authorities was baseless. The Government also contested the applicant ’ s allegation that the Government had failed to comply with the Court ’ s request to obtain further expert reports, and submitted that they had obtained additional reports and had provided them to the Court. 47. In Turkish law it was not necessary for all statements to be taken by a prosecutor. In any event, the prosecutor had instructed the police to question Gülperi O. ’ s husband, O.O., and the police officers had complied with those instructions and had taken a statement from O.O. Thus, the fact that O.O. ’ s statement had not been taken by the prosecutor herself did not constitute a deficiency that would tarnish the effectiveness of the investigation. 48. Regarding the fact that the prosecutor had not visited the couple ’ s flat, where the incident had taken place, the Government submitted that a crime scene investigation had been conducted by police officers at the hospital and that they had photographed the scene. Consequently, the fact that the prosecutor had not visited the flat did not have a negative bearing on the effectiveness of the investigation. In this connection the Government invited the Court to take into account the crime scene investigation that was conducted, the existence of photographs and the absence of any suspicious findings on the body. 49. As regards the prosecutor ’ s references to the death as “suicide” in his correspondence to the Registry Office for births, marriages and deaths (see paragraph 21 above), the Government were of the opinion that the classification of the incident as suicide did not have any impact on the merits of the ongoing investigation, such as preventing further examination. 50. Concerning the prosecutor ’ s conclusion that the applicant ’ s daughter had died after taking an overdose, the Government referred to the expert report of 24 February 2006 summarised above (see paragraph 25 ) and argued that it could not be denied that Gülperi O. might have taken a substance which could not be detected in the samples taken from the body. The conclusion reached by the prosecutor could not, therefore, be considered as false or misleading; the prosecutor had reached that conclusion on the basis of the medical report referred to above, the witness statements, and other evidence in the case-file. 2. The Court ’ s assessment 51. The Court deems it appropriate to reject at the outset the applicant ’ s allegation that the Government have not complied with their obligations under Article 38 of the Convention. The Court draws the applicant ’ s attention to the two medical reports, drawn up at the request of the Court by three experts at the Forensic Medicine Institute on 1 6 April 2013 and 15 July 2013, summarised above (see paragraphs 30 - 33 ). These reports were made available to the Court by the Government as part of the annexes to their observations of 17 July 2013, and the Registry of the Court forwarded them to the applicant ’ s legal representatives on 24 July 2013. 52. The Court observes that the applicant did not argue that her daughter had been killed by an agent of the State. Neither did she allege that her daughter ’ s life had been at risk from the criminal acts of another individual and that there had thus been a real and immediate risk to her life of which the national authorities of the respondent State had been or should have been aware but that they had nevertheless failed to take preventive operational measures to protect her life (see, Keenan v. the United Kingdom, no. 27229/95, § § 89 and 93, ECHR 2001 ‑ III ). 53. Her complaint relates solely to the effectiveness of the investigation carried out by the national authorities into the death of her daughter and, as such, falls to be examined from the standpoint of the procedural obligation to carry out effective investigations. 54. To that end, the Court reiterates that the obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State ’ s general duty under Article 1 to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force (see McCann and Others v. the United Kingdom, 27 September 1995, § 161, Series A no. 324; Kaya v. Turkey, 19 February 1998, § 105, Reports of Judgments and Decisions 1998 ‑ I ). In that connection, and having regard to the facts of the present application, the Court points out that this obligation is not confined to cases where it is apparent that the killing was caused by an agent of the State (see Salman v. Turkey [GC], no. 21986/93, § 105, ECHR 2000 ‑ VII ). 55. It must be reiterated that the obligation to investigate “is not an obligation of result, but of means ”; as such, not every investigation should necessarily be successful or come to a conclusion which coincides with the claimant ’ s account of events. However, it should in principle be capable of leading to the establishment of the facts of the case and, if the allegations prove to be true, to the identification and punishment of those responsible (see Mikheyev v. Russia, no. 77617/01, § 107, 26 January 2006 and the cases cited therein). The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony. Any deficiency in the investigation which undermines its ability to establish the cause of death or the person responsible will risk falling foul of this standard (see Aktaş v. Turkey, no. 24351/94, § 300, ECHR 2003 ‑ V (extracts) and the cases cited therein). 56. Turning to the facts of the case, the Court observes at the outset that the documents summarised above illustrate that neither the prosecutor nor the investigating police officers kept an open mind during the investigation as to the cause of the applicant ’ s daughter ’ s death. Both the prosecutor and the police seem to have accepted from the outset that Gülperi O. had committed suicide when they had no evidence to support such a conclusion, and in their correspondence ‒ before even concluding the investigation ‒ those authorities stated that Gülperi O. had taken an overdose and killed herself (see paragraphs 15, 19 and 21 ). 57. There were apparently no steps taken by the prosecutor that would indicate that she had contemplated any other explanation for the death. Indeed, the prosecutor ’ s premature conclusion that Gülperi O. had taken her own life also seems to be responsible for her subsequent inaction and explains her failure to take action in respect of the credible and serious allegations brought to her attention. More incomprehensibly, even when the results of the post-mortem and toxicology examinations ‒ which confirmed that Gülperi O. had not taken an overdose ‒ were made available to the prosecutor, her attitude did not change and she insisted that Gülperi O. had taken an overdose. 58. The Court considers that the starting point for the prosecutor should have been the questioning of Gülperi O. ’ s husband, O.O., who, by falsely informing the doctors and nurses at the hospital that Gülperi O. had taken two medicines, led them to treat Gülperi O. as a suspected suicide case, thus preventing them from devoting precious time to trying to establish the actual cause of her problem in order to save her life. The importance of questioning O.O. is highlighted even more strongly in the light of the information which O.O. gave to the police officer at the hospital ‒ namely that he and Gülperi O. had hit each other (see paragraph 10 above) ‒ and the information provided to the prosecutor by the applicant and her husband that O. O. had beaten their daughter up twice before, as a result of which she had had to be hospitalised with suspected head injuries (see paragraphs 16 and 18 above). 59. Nevertheless, the prosecutor took no steps to question O.O. at any stage of her investigation. At the time of giving notice of the application to the Government, the Court asked them to elaborate on the prosecutor ’ s failure to question O.O. and questioned whether that failure had had any bearing on the effectiveness of the investigation. The Court has examined the Government ’ s response to that question (see paragraph 4 7 above), and considers that it does not dispel the serious misgivings the Court has about the negative impact of the failure to question O.O. had on the effectiveness of the investigation. 60. The Court must stress in this connection that, contrary to the Government ’ s submissions (see paragraph 4 7 above), it is not concerned as to which national authority might have questioned O.O. Thus, the fact that the only statement from O.O. was taken by a police officer, rather than by a prosecutor, does not have any impact on the Court ’ s examination in the particular circumstances of the present case and the Government were not invited to elaborate upon that aspect. What is crucial for the Court ’ s examination is the fact that O.O. was not questioned by any investigating authority in relation to the pertinent points, such as the misleading and potentially life-threatening information he provided to the doctors regarding the underlying cause of Gülperi O. ’ s condition and the fight he had had with Gülperi O., during which ‒ by his own admission ‒ he had hit her. 61. In this connection, the Court also considers the Government ’ s submission that O.O. had been questioned by the police upon an instruction from the prosecutor to be baseless. It notes that the prosecutor issued his instruction to the police officer over the telephone at 6.50 p.m. (see paragraph 11 above), that is to say after the only statement taken from O.O. in the entire investigation had already been drawn up at 6. 45 p.m. (see paragraph 10 above). 62. The Court agrees with the submissions made by the applicant that a visit to the couple ’ s flat, where the couple had had a fight earlier on the day Gülperi O. lost her life, would have helped the authorities to draw a clear picture of the background to the events leading up to Gülperi O. ’ s death and to assess the importance, if any, of the fight the couple had there. Yet it appears that the flat was never visited by the prosecutor or the investigating police officers, let alone by any scene of crime experts. In this connection the Court is unable to understand how it is, as suggested by the Government (see paragraph 4 8 above), that photographing Gülperi O. ’ s body and “carrying out a crime scene investigation at the hospital” might somehow be a substitute for a visit to the couple ’ s flat where a fight had taken place. The Court considers that, as a result of that failure, the prosecutor wasted a genuine opportunity to collect crucial evidence and/ or to dispel doubts about the role of that fight in Gülperi O. ’ s death. 63. The Court notes that the prosecutor ’ s conclusion that the investigation should be closed was based solely on the misleading information given by O.O. to the doctors that Gülperi O. had taken an overdose of two medicines. That decision is not supported by any other evidence. No evidence exists, for example, to support the prosecutor ’ s conclusion that Gülperi O. had taken an overdose because she had had an argument with O.O. Even the statement made by O.O. to the police officer does not mention that Gülperi O. had taken an overdose, let alone her having done so because of the argument she had had with O.O. (see paragraph 10 above). Contrary to the Government ’ s submissions (see paragraph 50 above), none of the witnesses questioned in the investigation said that Gülperi O. had committed suicide. The Court also observes, contrary to the Government ’ s reference to “other evidence in the file”, that there is no other evidence in the file. 64. Having regard to the reports obtained from the forensic authorities at its request (see paragraphs 32-33 above), the Court does not have any grounds to call into question the existence of the theoretical possibility that Gülperi O. might have committed suicide by taking a medicine which was not included in the forensic authorities ’ database. Nevertheless, when examined against the background of the serious failures in the investigation which are highlighted above and the misleading information provided by O.O. to the doctors ‒ which should have generated serious doubts in the mind of the prosecutor about the suicide theory ‒ the Court considers that a theoretical possibility is not sufficient to support the prosecutor ’ s decision. To this end the Court must also draw attention to the conclusion reached in the above - mentioned reports that the cause of Gülperi O. ’ s death could not be established (see paragraph 33 ). That conclusion, in the opinion of the Court, further undermines the prosecutor ’ s conclusion that Gülperi O. died as a result of a drug overdose. 65. The Court considers that the failures in the investigation in the present case bear the hallmarks of other investigations in Turkey into allegations of domestic violence, one of which the Court has had the opportunity to examine. In that judgment the Court concluded that there existed a prima facie indication that domestic violence affected mainly women and that the general and discriminatory judicial passivity in Turkey created a climate that was conducive to domestic violence (see Opuz, cited above, § 198). As evidenced in the present case, the Court considers that the prosecutor ’ s above - mentioned serious failures are part of that pattern of judicial passivity in response to allegations of domestic violence. 66. As set out above, according to the Court ’ s case-law, any deficiency in an investigation which undermines its ability to establish a cause of death ‒ or the person responsible for such a death ‒ will risk falling foul of the standard of effectiveness expected from the national authorities (see paragraph 5 5 above). Having examined and highlighted the numerous deficiencies in the investigation in the present case, the Court finds that the authorities have failed to carry out an effective investigation into Gülperi O. ’ s death. 67. Having established that the national authorities have not conducted an effective investigation capable of establishing the cause of death and leading to the identification and punishment of anyone who might have been responsible for the death, the Court concludes that there has been a violation of Article 2 of the Convention in its procedural aspect in respect of the applicant ’ s daughter Gülperi O. ’ s death. 68. In the particular circumstances of the present application the Court considers it appropriate to refer to a set of recent amendments introduced in the Turkish legal system. According to those amendments, in cases in which the Court finds a violation of the Convention on account of a failure to carry out an effective investigation, the applicants have the opportunity to ask the national authorities to reopen investigations into the deaths of their relatives (see paragraph 34 above). It is therefore possible for the applicant in the present case to ask the investigating authorities to reopen the investigation into the death of her daughter, and to ask those authorities to conduct a new and effective investigation by taking into account the deficiencies identified by the Court in the previous investigation as well as the two medical reports prepared by the Forensic Medicine Institute at the request of the Court (see paragraphs 32-33 above). II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 69. As set out above (see paragraph 3 5 ), in respect of her complaint that the national authorities had failed to carry out an effective investigation into the death of her daughter, on her application form the applicant relied on Articles 2, 6 and 13 of the Convention, and the Court considered it appropriate to examine the complaints solely from the standpoint of the procedural obligation inherent in Article 2 of the Convention. 70. In the observations she submitted to the Court on 28 August 2013, the applicant also complained that the national authorities ’ failure to carry out an effective investigation had also deprived her of the possibility of obtaining compensation and that there had thus been a violation of Article 13 of the Convention. 71. The Government objected to the applicant ’ s submissions in this respect which, they argued, concerned matters of which they had not been given notice. 72. The Court observes that, as set out above, on her application form the applicant complained under Article 13 of the Convention solely of the deficiencies in the investigation and did not allege that she had been unable to seek and obtain compensation as a result of those deficiencies. The first time she complained about that alleged inability was in her observations which, as explained above, were submitted to the Court on 28 August 2013. 73. The Court notes that the final domestic decision taken in this present application was the decision of the Karşıyaka Assize Court on 11 July 2006. The complaint under Article 13 of the Convention concerning the issue of compensation was not made until 28 August 2013, i.e. more than six months later. 74. In light of the foregoing, the Court considers that this complaint has been introduced out of time and must be declared inadmissible in accordance with Article 35 §§ 1 and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 75. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 76. The applicant claimed 50,000 euros (EUR) in respect of pecuniary and EUR 50,000 in respect of non-pecuniary damage. 77. The Government considered that there was no causal link between the alleged violations and the pecuniary damage claimed. They also submitted that the claim for non-pecuniary damage was excessive. 78. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant EUR 20,000 in respect of non-pecuniary damage. B. Costs and expenses 79. The applicant claimed EUR 8,000 for costs and expenses incurred before the Court. In respect of the claim for her lawyers ’ fees the applicant submitted a breakdown of the hours spent by her lawyers in representing her before the Court. According to that document, the applicant ’ s lawyers had spent a total of 31 hours on the case for which they claimed a total of 9,565 Turkish liras (TL ) ( approximately EUR 3, 480 at the time of submission of the claims ). This sum comprised TL 1,900 for verbal advice given to the applicant, and TL 7,665 for the written work. Both sums were calculated in accordance with the fee scales recommended by the Turkish Bar Association. 80. In support of the above - mentioned claim the applicant also submitted to the Court the copy of a fee agreement which shows that she agreed to pay her lawyers TL 10,000 plus value added tax, as well as 20% of any compensation awarded to her by the Court. Finally, she submitted two postal receipts, showing that her lawyers had incurred costs totaling TL 14 (approximately EUR 5) when corresponding with the Court. 81. The Government were of the opinion that the claims in respect of costs and expenses were excessive and not itemised. As such, it was not clear how much the applicant had claimed in respect of the lawyers ’ fees as opposed to the other costs and expenses. In any event, the applicant had failed to specify how many hours had been spent by her lawyers on the case. They invited the Court not to make an award to the applicant in respect of costs and expenses other than for the postal expenses which were documented. 82. The Court observes that, contrary to the Government ’ s submissions, the applicant did in fact clearly itemise her claim in respect of costs and expenses and specified the exact hours spent by her lawyers on the case. She also submitted a fee agreement. However, according to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. 83. Taking into account the documents in its possession and the above criteria, as well as the sum of EUR 850 already paid to the applicant ’ s legal representative by the Council of Europe by way of legal aid (see paragraph 2 above), the Court considers it reasonable to award the sum of EUR 2,000 covering costs under all heads. C. Default interest 84. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 2 (right to life) of the Convention in its procedural aspect on account of the Turkish authorities’ failure to carry out an effective investigation into the death of the applicant’s daughter. Like in the Opuz case (see above), it noted in particular that domestic violence affected mainly women and that the general and discriminatory judicial passivity in Turkey created a climate that was conducive to domestic violence. |
590 | Right to life and right to respect for private life | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Public Health Code 52. Under Article L. 1110 ‑ 1 of the Public Health Code (“the Code”), all available means must be used to secure to each individual the fundamental right to protection of health. Article L. 1110 ‑ 2 of the Code provides that the patient has the right to respect for his or her dignity, while Article L. 1110 ‑ 9 guarantees to everyone whose condition requires it the right to palliative care. This is defined in Article L. 1110 ‑ 10 as active and ongoing care intended to relieve pain, ease psychological suffering, preserve the patient ’ s dignity and support those close to him or her. 53. The Law of 22 April 2005 on patients ’ rights and end ‑ of ‑ life issues, known as the “ Leonetti Act ” after its rapporteur, Mr Jean Leonetti (see paragraph 44 above), amended a number of Articles of the Code. The Act was passed following the work of a parliamentary commission chaired by Mr Leonetti and tasked with exploring the full range of end ‑ of ‑ life issues and considering possible legislative or regulatory amendments. In the course of its work the parliamentary commission heard evidence from a great many individuals. It submitted its report on 30 June 2004. The Act was passed unanimously by the National Assembly on 30 November 2004 and by the Senate on 12 April 2005. The Act does not authorise either euthanasia or assisted suicide. It allows doctors, in accordance with a prescribed procedure, to discontinue treatment only if continuing it would demonstrate unreasonable obstinacy (in other words, if it would mean taking it to unreasonable lengths ( acharnement thérapeutique ) ). The relevant Articles of the Code, as amended by the Act, read as follows. Article L. 1110-5 “Every individual, regard being had to his or her state of health and the urgency of the treatment required, shall be entitled to receive the most appropriate care and to be given the safest treatment known to medical science at the time to be effective. Preventive or exploratory acts or care must not, as far as medical science can guarantee, subject the patient to disproportionate risks in relation to the anticipated benefits. Such acts must not be continued with unreasonable obstinacy. Where they appear to be futile or disproportionate or to have no other effect than to sustain life artificially, they may be discontinued or withheld. In such cases, the doctor shall preserve the dignity of the dying patient and ensure his or her quality of life by dispensing the care referred to in Article L. 1110-10 ... Everyone shall be entitled to receive care intended to relieve pain. That pain must in all cases be prevented, assessed, taken into account and treated. Health - care professionals shall take all the measures available to them to allow each individual to live a life of dignity until his or her death ... ” Article L. 1111-4 “Each individual shall, together with the health - care professional and in the light of the information provided and the recommendations made by the latter, take the decisions concerning his or her own health. The doctor must respect the individual ’ s wishes after informing him or her of the consequences of the choices made ... No medical act or treatment may be administered without the free and informed consent of the patient, which may be withdrawn at any time. Where the individual is unable to express his or her wishes, no intervention or examination may be carried out, except in cases of urgency or impossibility, without the person of trust referred to in Article L. 1111-6, the family or, failing this, a person close to the patient having been consulted. Where the individual is unable to express his or her wishes, no decision to limit or withdraw treatment, where such a measure would endanger the patient ’ s life, may be taken without the collective procedure defined in the Code of Medical Ethics having been followed and without the person of trust referred to in Article L. 1111-6, the family or, failing this, a person close to the patient having been consulted, and without any advance directives issued by the patient having been examined. The decision to limit or withdraw treatment, together with the reasons for it, shall be recorded in the patient ’ s file ... ” Article L. 1111-6 “ All adults may designate a person of trust, who may be a relative, another person close to the adult, or his or her usual doctor, and who will be consulted in the event that the patient is unable to express his or her wishes and to receive the necessary information for that purpose. The designation shall be made in writing and may be revoked at any time. Should the patient so wish, the person of trust may provide support and attend medical consultations with the patient in order to assist him or her in making decisions. Whenever he or she is admitted to a health - care establishment, the patient shall be offered the possibility of designating a person of trust in the conditions laid down in the preceding paragraph. The designation shall be valid for the duration of the patient ’ s hospitalisation, unless he or she decides otherwise ... ” Article L. 1111-11 “ All adults may draw up advance directives in case they should become unable to express their wishes. These shall indicate the wishes of the individual concerned as regards the conditions in which treatment may be limited or withdrawn in an end ‑ of ‑ life situation. They may be revoked at any time. Provided they were drawn up less than three years before the individual became unconscious, the doctor shall take them into account in any decision to carry out examinations, interventions or treatment in respect of the person concerned ... ” 54. The collective procedure provided for in the fifth paragraph of Article L. 1111 ‑ 4 of the Code is described in detail in Article R. 4127 ‑ 37, which forms part of the Code of Medical Ethics and reads as follows: “I. The doctor shall at all times endeavour to alleviate suffering by the means most appropriate to the patient ’ s condition, and provide moral support. He or she shall refrain from any unreasonable obstinacy in carrying out examinations or treatment and may decide to withhold or discontinue treatment which appears futile or disproportionate or the only purpose or effect of which is to sustain life artificially. IV. COMPARATIVE LAW A. Legislation and practice in Council of Europe member States 72. According to the information available to the Court concerning thirty-nine of the forty-seven Council of Europe member States, no consensus exists in practice in favour of authorising the withdrawal of treatment designed only to prolong life artificially. In the majority of countries, treatment may be withdrawn subject to certain conditions. In other countries the legislation prohibits withdrawal or is silent on the subject. 73. In those countries which permit it, this possibility is provided for either in legislation or in non-binding instruments, most often in a code of medical ethics. In Italy, in the absence of a legal framework, the withdrawal of treatment has been recognised in the courts ’ case-law. 74. Although the detailed arrangements for the withdrawal of treatment vary from one country to another, there is consensus as to the paramount importance of the patient ’ s wishes in the decision-making process. As the principle of consent to medical care is one of the aspects of the right to respect for private life, States have put in place different procedures to ensure that consent is expressed or to verify its existence. 75. All the legislation allowing treatment to be withdrawn makes provision for patients to issue advance directives. In the absence of such directives, the decision lies with a third party, whether it be the doctor treating the patient, persons close to the patient or his or her legal representative, or even the courts. In all cases, the involvement of those close to the patient is possible, although the legislation does not choose between them in the event of disagreement. However, some countries operate a hierarchy among persons close to the patient and give priority to the spouse ’ s wishes. 76. In addition to the requirement to seek the patient ’ s consent, the withdrawal of treatment is also subject to other conditions. Depending on the country, the patient must be dying or be suffering from a condition with serious and irreversible medical consequences, the treatment must no longer be in the patient ’ s best interests, it must be futile, or withdrawal must be preceded by an observation phase of sufficient duration and by a review of the patient ’ s condition. B. Observations of the Human Rights Clinic 77. The Human Rights Clinic, third-party intervener ( see paragraph 8 above ), presented an overview of national legislation and practice concerning active and passive euthanasia and assisted suicide in Europe and America. 78. The survey concludes that no consensus currently exists among the member States of the Council of Europe, or in the other countries surveyed, regarding the authorisation of assisted suicide or euthanasia. 79. However, there is consensus on the need for passive euthanasia to be tightly regulated in those countries which permit it. In that connection each country lays down criteria in its legislation for determining the point at which euthanasia may be performed, in the light of the patient ’ s condition and in order to make sure that he or she has consented to the measure. Nevertheless, these criteria vary appreciably from one country to another. THE LAW I. STANDING TO ACT IN THE NAME AND ON BEHALF OF VINCENT LAMBERT 80. The applicants submitted that the withdrawal of Vincent Lambert ’ s artificial nutrition and hydration would be in breach of the State ’ s obligations under Article 2 of the Convention. In their view, depriving him of nutrition and hydration would constitute ill-treatment amounting to torture within the meaning of Article 3 of the Convention. They further argued that the lack of physiotherapy since October 2012 and the lack of therapy to restore the swallowing reflex amounted to inhuman and degrading treatment in breach of that provision. Lastly, they submitted that the withdrawal of nutrition and hydration would also infringe Vincent Lambert ’ s physical integrity, in breach of Article 8 of the Convention. 81. Articles 2, 3 and 8 of the Convention read as follows. Article 2 “1. Everyone ’ s right to life shall be protected by law. No one shall be deprived of his life intentionally ... ” Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Article 8 “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. The applicants ’ standing to act in the name and on behalf of Vincent Lambert 1. The parties ’ submissions (a) The Government 82. The Government observed that the applicants had not stated that they wished to act on Vincent Lambert ’ s behalf, and considered the question whether they could apply to the Court on his behalf to be devoid of purpose. ( b) The applicants 83. The applicants submitted that any individual, irrespective of his or her disability, should be able to benefit from the guarantees afforded by the Convention, including where he or she had no representative. They stressed that their standing or interest in bringing proceedings had never been challenged before the domestic courts, as French law gave the family of a person whose treatment it was proposed to withdraw the right to express a view on the measure in question. This necessarily entailed standing to act in court proceedings not only on their own behalf but also on behalf of the patient. 84. Citing the criteria established by the Court in Koch v. Germany (no. 497/09, §§ 43 et seq., 19 July 2012), the applicants submitted that those criteria were satisfied in the present case because the case concerned a matter of general interest and because of their close family ties and their personal interest in the proceedings. They stressed that they had applied to the domestic courts and then to the Court in order to assert Vincent Lambert ’ s fundamental rights under Articles 2 and 3 which he himself was unable to do and which his wife could not either since she had accepted the medical decision in issue. ( c) The individual third-party interveners 85. Rachel Lambert, Vincent Lambert ’ s wife, submitted that the applicants did not have standing to act on behalf of Vincent Lambert. She pointed out that the Court had been prepared to recognise the standing of a relative either when the complaints raised an issue of general interest pertaining to “respect for human rights” and the person concerned, as heir, had a legitimate interest in pursuing the application, or on the basis of the direct effect on the applicant ’ s own rights. However, in Sanles Sanles v. Spain ((dec.), no. 48335/99, ECHR 2000 ‑ XI), the Court had found that the rights asserted by the applicant under Articles 2, 3, 5 and 8 of the Convention belonged to the category of non ‑ transferable rights and had held that the applicant, who was the sister-in-law and legitimate heir of the deceased, could not claim to be the victim of a violation on her late brother ‑ in ‑ law ’ s behalf. 86. On the issue of representation, she observed that it was essential for representatives to demonstrate that they had received specific and explicit instructions from the alleged victim. This was not the case of the applicants, who had received no specific and explicit instructions from Vincent Lambert, whereas the examination of the case by the Conseil d ’ État had highlighted the fact that she herself had been taken into her husband ’ s confidence and informed of his wishes, as corroborated by statements produced before the domestic courts. 87. François Lambert and Marie ‑ Geneviève Lambert, Vincent Lambert ’ s nephew and half ‑ sister, submitted that the applicants lacked standing to act on his behalf. Firstly, the violations of Articles 2, 3 and 8 of the Convention alleged by the applicants concerned non ‑ transferable rights to which they could not lay claim on their own behalf; secondly, the applicants were not the legal representatives of Vincent Lambert, who was an adult born in 1976; and, thirdly, their application contravened Vincent Lambert ’ s freedom of conscience and his own right to life and infringed his privacy. François Lambert and Marie ‑ Geneviève Lambert observed that, although the Court had, by way of an exception, accepted that parents might act on behalf and in the place of a victim in arguing a breach of Article 3 of the Convention, this was only in the case of the victim ’ s disappearance or death and in certain specific circumstances. Those conditions were not met in the present case, making the application inadmissible. They argued that the Court had had occasion to reaffirm this inadmissibility in end-of-life cases similar to the present one (they referred to Sanles Sanles, cited above, and Ada Rossi and Others v. Italy (dec.), nos. 55185/08, 55483/08, 55516/08, 55519/08, 56010/08, 56278/08 and 58424/08, 16 December 2008). 88. Lastly, they argued that the applicants could not in fact “legitimately” challenge the Conseil d ’ État ’ s judgment, since the position they defended was directly opposed to Vincent Lambert ’ s beliefs. The doctors and the judges had taken account of the latter ’ s wishes, which he had confided to his wife – with whom he had had a very close relationship – in full knowledge of the facts, in view of his professional experience as a nurse. 2. The Court ’ s assessment ( a) Recapitulation of the principles 89. In the recent cases of Nencheva and Others v. Bulgaria ( no. 48609/06, 18 June 2013) and Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania ( [GC], no. 47848/08, ECHR 2014), the Court reiterated the following principles. In order to rely on Article 34 of the Convention, an applicant must be able to claim to be a victim of a violation of the Convention. According to the Court ’ s established case - law, the concept of “victim” must be interpreted autonomously and irrespective of domestic concepts such as those concerning an interest or capacity to act ( see Nencheva and Others, cited above, § 88). The individual concerned must be able to show that he or she was “directly affected” by the measure complained of ( see Centre for Legal Resources on behalf of Valentin Câmpeanu, cited above, § 96, with further references ). 90. An exception is made to this principle where the alleged violation or violations of the Convention are closely linked to a death or disappearance in circumstances allegedly engaging the responsibility of the State. In such cases the Court has recognised the standing of the victim ’ s next-of-kin to submit an application ( see Nencheva and Others, cited above, § 89, and Centre for Legal Resources on behalf of Valentin Câmpeanu, cited above, §§ 98-99, with further references ). 91. Where the application is not lodged by the victims themselves, Rule 45 § 3 of the Rules of Court requires a written authority to act, duly signed, to be produced. It is essential for representatives to demonstrate that they have received specific and explicit instructions from the alleged victim on whose behalf they purport to act before the Court (see Post v. the Netherlands (dec.), no. 21727/08, 20 January 2009; Nencheva and Others, cited above, § 83; and Centre for Legal Resources on behalf of Valentin Câmpeanu, cited above, § 102). However, the Convention institutions have held that special considerations may arise in the case of victims of alleged breaches of Articles 2, 3 and 8 of the Convention at the hands of the national authorities. Applications lodged by individuals on behalf of the victim or victims, even though no valid form of authority was presented, have thus been declared admissible ( see Centre for Legal Resources on behalf of Valentin Câmpeanu, cited above, § 103). 92. Particular consideration has been shown with regard to the victims ’ vulnerability on account of their age, sex or disability, which rendered them unable to lodge a complaint on the matter with the Court, due regard also being paid to the connections between the person lodging the application and the victim (ibid .). 93. For instance, in S.P., D.P. and A.T. v. the United Kingdom (no. 23715/94, Commission decision of 20 May 1996, unreported ), which concerned, inter alia, Article 8 of the Convention, the Commission declared admissible an application lodged by a solicitor on behalf of children whom he had represented in the domestic proceedings, in which he had been instructed by the guardian ad litem, after noting in particular that their mother had displayed no interest, that the local authorities had been criticised in the application and that there was no conflict of interests between the solicitor and the children. In İlhan v. Turkey ([GC], no. 22277/93, §§ 54-55, ECHR 2000 ‑ VII), where the direct victim, Abdüllatif İlhan, had suffered severe injuries as a result of ill-treatment at the hands of the security forces, the Court held that his brother could be regarded as having validly introduced the application, based on Articles 2 and 3 of the Convention, since it was clear from the facts that Abdüllatif İlhan had consented to the proceedings, there was no conflict of interests between himself and his brother, who had been closely concerned with the incident, and he was in a particularly vulnerable position because of his injuries. In Y.F. v. Turkey ( no. 24209/94, § 31, ECHR 2003 ‑ IX), in which a husband alleged under Article 8 of the Convention that his wife had been forced to undergo a gynaecological examination following her detention in police custody, the Court found that it was open to the applicant, as a close relative of the victim, to make a complaint concerning allegations by her of violations of the Convention, in particular having regard to her vulnerable position in the special circumstances of the case. 94. Still in the context of Article 8 of the Convention, the Court has also accepted on several occasions that parents who did not have parental rights could apply to it on behalf of their minor children (see, in particular, Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, §§ 138 ‑ 39, ECHR 2000 ‑ VIII; Šneersone and Kampanella v. Italy, no. 14737/09, § 61, 12 July 2011; Diamante and Pelliccioni v. San Marino, no. 32250/08, §§ 146-47, 27 September 2011; A.K. and L. v. Croatia, no. 37956/11, §§ 48-50, 8 January 2013; and Raw and Others v. France, no. 10131/11, §§ 51-52, 7 March 2013). The key criterion for the Court in these cases was the risk that some of the children ’ s interests might not be brought to its attention and that they would be denied effective protection of their Convention rights. 95. Lastly, the Court recently adopted a similar approach in Centre for Legal Resources on behalf of Valentin Câmpeanu, cited above, concerning a young man of Roma origin, seriously disabled and HIV positive, who died in hospital before the application was lodged and had no known next-of-kin and no State-appointed representative. In view of the exceptional circumstances of the case and the seriousness of the allegations, the Court recognised that the Centre for Legal Resources had standing to represent Valentin Câmpeanu. The Court emphasised that to find otherwise would amount to preventing such serious allegations of a violation of the Convention from being examined at an international level ( ibid., § 112). ( b) Application to the present case 96. The applicants alleged on Vincent Lambert ’ s behalf a violation of Articles 2, 3 and 8 of the Convention ( see paragraph 80 above ). 97. The Court considers at the outset that the case-law concerning applications lodged on behalf of deceased persons is not applicable in the present case, since Vincent Lambert is not dead but is in a state described by the expert medical report as vegetative (see paragraph 40 above). The Court must therefore ascertain whether the circumstances before it are of the kind in which it has previously held that an application could be lodged in the name and on behalf of a vulnerable person without him or her having issued either a valid authority to act or instructions to the person purporting to act for him or her ( see paragraphs 93-95 above ). 98. It notes that none of the cases in which it has accepted, by way of an exception, that an individual may act on behalf of another is comparable to the present case. The case in Centre for Legal Resources on behalf of Valentin Câmpeanu, cited above, is to be distinguished from the present case in so far as the direct victim was dead and had no one to represent him. In the present case, while the direct victim is unable to express his wishes, several members of his close family wish to express themselves on his behalf, while defending diametrically opposed points of view. The applicants mainly rely on the right to life protected by Article 2, the “sanctity” of which was stressed by the Court in Pretty v. the United Kingdom (no. 2346/02, § 65, ECHR 2002 ‑ III), whereas the individual third ‑ party interveners (Rachel Lambert, François Lambert and Marie ‑ Geneviève Lambert) rely on the right to respect for private life and in particular the right of each individual, encompassed in the notion of personal autonomy ( ibid., § 61), to decide in which way and at which time his or her life should end (ibid. , § 67; see also Haas v. Switzerland, no. 31322/07, § 51, ECHR 2011, and Koch, cited above, § 52). 99. The applicants propose that the Court should apply the criteria set forth in Koch (cited above, § 44), which, in their submission, they satisfy on account of their close family ties, the fact that they have a sufficient personal or legal interest in the outcome of the proceedings and the fact that they have previously expressed an interest in the case. 100. However, the Court observes that in Koch, cited above, the applicant argued that his wife ’ s suffering and the circumstances of her death had affected him to the extent of constituting a violation of his own rights under Article 8 of the Convention (§ 43). Thus, it was on that point that the Court was required to rule, and it was against that background that it considered that account should also be taken of the criteria developed in its case-law allowing a relative or heir to bring an action before it on the deceased person ’ s behalf (§ 44). 101. In the Court ’ s view, these criteria are not applicable in the present case since Vincent Lambert is not dead and the applicants are seeking to raise complaints on his behalf. 102. A review of the cases in which the Convention institutions have accepted that a third party may, in exceptional circumstances, act in the name and on behalf of a vulnerable person (see paragraphs 93-95 above ) reveals the following two main criteria: the risk that the direct victim will be deprived of effective protection of his or her rights, and the absence of a conflict of interests between the victim and the applicant. 103. Applying these criteria to the present case, the Court does not discern any risk, firstly, that Vincent Lambert will be deprived of effective protection of his rights since, in accordance with its consistent case-law ( see paragraphs 90 above and 115 below ), it is open to the applicants, as Vincent Lambert ’ s close relatives, to rely before the Court, on their own behalf, on the right to life protected by Article 2. 104. As regards the second criterion, the Court must next ascertain whether there is a convergence of interests between the applicants and Vincent Lambert. In that connection it notes that one of the key aspects of the domestic proceedings consisted precisely in determining Vincent Lambert ’ s wishes, given that Dr Kariger ’ s decision of 11 January 2014 was based on the certainty that Vincent Lambert “ had not wished, before his accident, to live under such conditions” (see paragraph 22 above). In its judgment of 24 June 2014, the Conseil d ’ État found, in the light of the testimony of Vincent Lambert ’ s wife and one of his brothers and the statements of several of his other siblings, that in basing his decision on that ground, Dr Kariger “[could not] be regarded as having incorrectly interpreted the wishes expressed by the patient before his accident” (see paragraph 50 above). Accordingly, the Court does not consider it established that there is a convergence of interests between the applicants ’ assertions and what Vincent Lambert would have wished. 105. The Court concludes that the applicants do not have standing to raise the complaints under Articles 2, 3 and 8 of the Convention in the name and on behalf of Vincent Lambert. 106. It follows that these complaints are incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 ( a) and must be rejected pursuant to Article 35 § 4. B. Rachel Lambert ’ s standing to act in the name and on behalf of Vincent Lambert 1. The parties ’ submissions 107. In a letter from her lawyer dated 9 July 2014, Rachel Lambert requested leave to represent her husband Vincent Lambert as a third-party intervener in the procedure. In support of her request she furnished a judgment of the Châlons ‑ en ‑ Champagne guardianship judge, dated 17 December 2008, giving her authority to represent her husband in matters arising out of their matrimonial regime, as well as two statements from a sister and half-brother of Vincent Lambert. According to those statements, Vincent Lambert would not have wished a decision in his case to be taken by his parents, from whom he was morally and physically estranged, but rather by his wife, who was his person of trust. She also produced a statement by her stepmother, who said that she had accompanied Rachel Lambert in July 2012 to a consultation with a professor of medicine at Liège University Hospital which was also attended by the first two applicants. During the consultation she and Rachel Lambert had stated Vincent Lambert ’ s wish not to live in an incapacitated state if such a situation should arise, and the second applicant had reportedly said that, if the question of euthanasia should arise, she would leave the decision to Rachel Lambert. In her observations, Rachel Lambert submitted that, since she was informed of her husband ’ s wishes, as corroborated by the statements she had produced, she alone had legal standing to act on behalf of Vincent Lambert and to represent him. 108. The Government did not make any submissions on this point. 109. The applicants submitted that the ruling of the guardianship judge produced by Rachel Lambert did not give her general authority to represent her husband, but merely authority to represent him in property-related matters. She could not therefore claim to be the only person to represent her husband before the Court. The applicants further maintained that the statements she had produced had no legal value; they also disputed the content of the statement by Rachel Lambert ’ s stepmother. They noted that Vincent Lambert had not designated a person of trust, and concluded that, as French law currently stood and in the absence of a full or partial guardianship order, Vincent Lambert was not represented by anyone in proceedings concerning him personally. 2. The Court ’ s assessment 110. The Court notes that no provision of the Convention permits a third-party intervener to represent another person before the Court. Furthermore, according to Rule 44 § 3 (a) of the Rules of Court, a third ‑ party intervener is any person concerned “ who is not the applicant”. 111. Accordingly, the Court cannot but refuse Rachel Lambert ’ s request. C. Conclusion 112. The Court has found that the applicants lacked standing to allege a violation of Articles 2, 3 and 8 of the Convention in the name and on behalf of Vincent Lambert (see paragraphs 105 ‑ 06 above), and has also rejected Rachel Lambert ’ s request to represent her husband as a third-party intervener (see paragraphs 110 ‑ 11 above). Nevertheless, the Court emphasises that, notwithstanding the findings it has just made regarding admissibility, it will examine below all the substantive issues arising in the present case under Article 2 of the Convention, given that they were raised by the applicants on their own behalf. II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 113. The applicants submitted that the withdrawal of Vincent Lambert ’ s artificial nutrition and hydration would be in breach of the State ’ s obligations under Article 2 of the Convention. They maintained that the Leonetti Act lacked clarity and precision, and complained of the process culminating in the doctor ’ s decision of 11 January 2014. 114. The Government contested that argument. A. Admissibility 115. The Court reiterates its case-law to the effect that the next-of-kin of a person whose death allegedly engages the responsibility of the State may claim to be victims of a violation of Article 2 of the Convention (see paragraph 90 above). Although Vincent Lambert is still alive, there is no doubt that if artificial nutrition and hydration were withdrawn, his death would occur within a short time. Accordingly, even if the violation is a potential or future one (see Tauira and 18 Others v. France, no. 28204/95, Commission decision of 4 December 1995, Decisions and Reports 83 ‑ B, p. 112, at p. 131), the Court considers that the applicants, in their capacity as Vincent Lambert ’ s close relatives, may rely on Article 2. 116. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other ground. The complaint must therefore be declared admissible. B. Merits 1. The applicable rule 117. The Court reiterates that the first sentence of Article 2, which ranks as one of the most fundamental provisions in the Convention and enshrines one of the basic values of the democratic societies making up the Council of Europe ( see McCann and Others v. the United Kingdom, 27 September 1995, §§ 1 4 6 ‑ 4 7, Series A no. 324), enjoins the State not only to refrain from the “intentional” taking of life (negative obligations), but also to take appropriate steps to safeguard the lives of those within its jurisdiction (positive obligations) (see L.C.B. v. the United Kingdom, 9 June 1998, § 36, Reports of Judgments and Decisions 1998 ‑ III). 118. The Court will address these two aspects in turn and will begin by examining whether the present case involves the State ’ s negative obligations under Article 2. 119. While the applicants acknowledged that the withdrawal of nutrition and hydration might be legitimate in cases of unreasonable obstinacy, and accepted that a legitimate distinction existed between, on the one hand, euthanasia and assisted suicide and, on the other hand, “ therapeutic abstention”, consisting in withdrawing or withholding treatment that had become unreasonable, they nevertheless argued repeatedly in their observations that, since these criteria were not met in their view, the present case concerned the intentional taking of life; they referred in this regard to the notion of “euthanasia”. 120. The Government stressed that the aim of the medical decision was not to put an end to life, but to discontinue a form of treatment which had been refused by the patient or – where the patient was unable to express his or her wishes – which constituted, in the doctor ’ s view based on medical and non-medical factors, unreasonable obstinacy. They quoted the public rapporteur before the Conseil d ’ État, who in his submissions of 20 June 2014 had noted that, in discontinuing treatment, a doctor was not taking the patient ’ s life but was resolving to withdraw when there was nothing more to be done (see paragraph 45 above). 121. The Court observes that the Leonetti Act does not authorise either euthanasia or assisted suicide. It allows doctors, in accordance with a prescribed procedure, to discontinue treatment only if continuing it demonstrates unreasonable obstinacy. In its observations to the Conseil d ’ État, the National Medical Academy reiterated the fundamental prohibition barring doctors from deliberately taking another ’ s life, which formed the basis for the relationship of trust between doctor and patient. That prohibition is laid down in Article R. 4127-38 of the Public Health Code, which states that doctors may not take life intentionally (see paragraph 55 above). 122. At the hearing of 14 February 2014 before the Conseil d ’ État, the public rapporteur cited the remarks made by the Minister of Health to the members of the Senate examining the Leonetti Bill: “While the act of withdrawing treatment ... results in death, the intention behind the act [is not to kill; it is] to allow death to resume its natural course and to relieve suffering. This is particularly important for care staff, whose role is not to take life.” 123. In the case of Glass v. the United Kingdom ((dec.), no. 61827/00, 18 March 2003), the applicants complained under Article 2 of the Convention that a potentially lethal dose of diamorphine had been administered to their son, without their consent, by doctors in the hospital where he was being treated. The Court noted that the doctors had not deliberately sought to kill the child or to hasten his death, and examined the parents ’ complaints from the standpoint of the authorities ’ positive obligations (see also Powell v. the United Kingdom (dec.), no. 45305/99, ECHR 2000 ‑ V). 124. The Court notes that both the applicants and the Government make a distinction between the intentional taking of life and “therapeutic abstention” (see paragraphs 119-20 above), and stresses the importance of that distinction. In the context of the French legislation, which prohibits the intentional taking of life and permits life-sustaining treatment to be withdrawn or withheld only in certain specific circumstances, the Court considers that the present case does not involve the State ’ s negative obligations under Article 2, and will examine the applicants ’ complaints solely from the standpoint of the State ’ s positive obligations. 2. Whether the State complied with its positive obligations ( a) The submissions of the parties and the third-party interveners ( i) The applicants 125. The applicants submitted first of all that the Leonetti Act was not applicable to Vincent Lambert, who, in their view, was neither sick nor at the end of life, but was severely disabled. They complained of the “confusion” arising from the Act on the following points: the notion of unreasonable obstinacy (and in particular the criterion concerning treatment having “ no other effect than to sustain life artificially”, which they considered to be extremely imprecise), and the classification of artificial nutrition and hydration as treatment rather than care. In their submission, Vincent Lambert ’ s enteral feeding was not a form of treatment that could be withdrawn, and the notion of unreasonable obstinacy did not apply to his medical situation. 126. They argued that the process leading to the doctor ’ s decision of 11 January 2014 was incompatible with the State ’ s obligations flowing from Article 2 of the Convention. In their view, the procedure was not truly collective as it involved seeking opinions on a purely consultative basis, with the doctor alone taking the decision. They maintained that alternative systems were possible which would allow other doctors or the members of the family, in the absence of a person of trust, to participate in the decision ‑ making process. Lastly, they argued that the legislation should take into account the possibility of disagreement between family members and make provision at the very least for mediation. ( ii) The Government 127. The Government submitted that the Leonetti Act struck a balance between the right to respect for life and patients ’ right to consent to or refuse treatment. The definition of unreasonable obstinacy was based on the ethical principles of beneficence and non ‑ maleficence reiterated in the Council of Europe ’ s “Guide on the decision-making process regarding medical treatment in end-of-life situations”. In accordance with those principles, health-care professionals had an obligation to deliver only appropriate treatment and had to be guided solely by the benefit to the patient, which was to be assessed in overall terms. In that regard both medical and non ‑ medical factors, and in particular the patient ’ s wishes, were to be taken into account. They pointed out that when the bill had been debated in Parliament, an amendment seeking to exclude artificial nutrition and hydration from the scope of treatment had been rejected. They stressed that treatment also encompassed methods and interventions responding to a functional deficiency in the patient and involving the use of intrusive medical techniques. 128. The Government emphasised that the French legislation provided for a number of procedural safeguards: consideration of the patient ’ s wishes and of the views of the person of trust, the family or those close to the patient and implementation of a collective procedure in which the family and those close to the patient were involved. Lastly, the doctor ’ s decision was subject to review by a judge. ( iii) The third-party interveners ( α ) Rachel Lambert 129. Rachel Lambert submitted that the Leonetti Act subjected the doctor ’ s decision to numerous safeguards and balanced each individual ’ s right to receive the most suitable care with the right not to undergo treatment in circumstances amounting to unreasonable obstinacy. She stressed that the legislature had not sought to limit the recognition of patients ’ previously expressed wishes to cases in which they had designated a person of trust or drawn up advance directives; where this was not the case, the views of the family were sought in order, first and foremost, to establish what the patient would have wanted. 130. Referring to the collective procedure implemented in the present case, she pointed out that Dr Kariger had consulted six doctors (three of them from outside the hospital), had convened a meeting with virtually all the care staff and all the doctors and had held two meetings with the family. His decision had been reasoned at length and bore witness to the professionalism of his approach. ( β ) François Lambert and Marie-Geneviève Lambert 131. François Lambert and Marie-Geneviève Lambert submitted that the doctor ’ s decision had been taken in accordance with the Leonetti Act, referred to above, the provisions of which they recapitulated. They stressed that the data emerging from the expert medical report ordered by the Conseil d ’ État were fully consistent with the notion of treatment serving solely to sustain life artificially, observing that it was Vincent Lambert ’ s inability to eat and drink by himself, without medical assistance in the form of enteral nutrition and hydration, that would cause his death. 132. They submitted that the decision ‑ making process in the present case had been particularly lengthy, meticulous and respectful of the rights of all concerned, of the medical and paramedical opinions sought and of the views of the family members who had been invited to participate (especially the applicants, who had been assisted by a doctor of their choosing throughout the process) and who had been kept fully informed at every stage. In their view, the final decision had been taken in accordance with the process required by law and by the Convention, as set out in the Council of Europe ’ s “Guide on the decision-making process regarding medical treatment in end ‑ of ‑ life situations”. ( γ) National Union of Associations of Head Injury and Brain Damage Victims ’ Families ( UNAFTC ) 133. UNAFTC echoed the concerns of the families and establishments it represented, and argued that patients in a chronic vegetative or minimally conscious state were not in an end-of-life situation and were not being kept alive artificially, and that where a person ’ s condition was not life ‑ threatening, artificial feeding and hydration could not be deemed to constitute treatment that could be withdrawn. UNAFTC submitted that a patient ’ s wishes could not be established on the basis of spoken remarks reported by some of the family members, and when in doubt, life should take precedence. At all events, in the absence of advance directives and of a person of trust, no decision to withdraw treatment could be taken in the absence of consensus within the family. ( δ) Amréso-Bethel 134. The association Amréso ‑ Bethel, which runs a care unit for patients in a minimally conscious or chronic vegetative state, provided details of the care dispensed to its patients. ( ε) Human Rights Clinic 135. In view of the multitude of approaches across the world to end ‑ of ‑ life issues and the differences regarding the circumstances in which passive euthanasia was permitted, the Human Rights Clinic submitted that States should be allowed a margin of appreciation in striking a balance between patients ’ personal autonomy and the protection of their lives. ( b) The Court ’ s assessment ( i) General considerations ( α ) Existing case-law 136. The Court has never ruled on the question which is the subject of the present application, but it has examined a number of cases concerning related issues. 137. In a first group of cases, the applicants or their relatives invoked the right to die, relying on various Articles of the Convention. In Sanles Sanles, cited above, the applicant asserted, on behalf of her brother-in-law, who was tetraplegic and wished to end his life with the assistance of third parties and who died before the application was lodged, the right to die with dignity, relying on Articles 2, 3, 5, 6, 8, 9 and 14 of the Convention. The Court rejected the application as being incompatible ratione personae with the provisions of the Convention. In Pretty, cited above, the applicant was in the terminal stages of an incurable neurodegenerative disease and complained, relying on Articles 2, 3, 8, 9 and 14 of the Convention, that her husband could not help her to commit suicide without facing prosecution by the United Kingdom authorities. The Court found no violation of the provisions in question. Haas and Koch, cited above, concerned assisted suicide, and the applicants relied on Article 8 of the Convention. In Haas, the applicant, who had been suffering for a long time from a serious bipolar affective disorder, wished to end his life and complained of being unable to obtain the lethal substance required for that purpose without a medical prescription; the Court held that there had been no violation of Article 8. In Koch, the applicant alleged that the refusal to allow his wife (who was paralysed and needed artificial ventilation) to acquire a lethal dose of medication so that she could take her own life had breached her right, and his, to respect for their private and family life. He also complained of the domestic courts ’ refusal to examine his complaints on the merits, and the Court found a violation of Article 8 on that point only. 138. In a second group of cases, the applicants took issue with the administering or withdrawal of treatment. In Glass, cited above, the applicants complained that diamorphine had been administered to their sick child by hospital doctors without their consent, and of the “ do not resuscitate ” order entered in his medical notes. In its decision of 18 March 2003, cited above, the Court found that their complaint under Article 2 of the Convention was manifestly ill-founded; in its judgment of 9 March 2004 it held that there had been a violation of Article 8 of the Convention. In Burke v. the United Kingdom ((dec.), no. 19807/06, 11 July 2006), the applicant suffered from an incurable degenerative brain condition and feared that the guidance applicable in the United Kingdom could lead in due course to the withdrawal of his artificial nutrition and hydration. The Court declared his application, lodged under Articles 2, 3 and 8 of the Convention, inadmissible as being manifestly ill-founded. Lastly, in its decision in Ada Rossi and Others, cited above, the Court declared incompatible ratione personae an application lodged by individuals and associations complaining, under Articles 2 and 3 of the Convention, of the potentially adverse effects for them of execution of a judgment of the Italian Court of Cassation authorising the discontinuation of the artificial nutrition and hydration of a young girl in a vegetative state. [1] 139. The Court observes that, with the exception of the violations of Article 8 in Glass and Koch, cited above, it did not find a violation of the Convention in any of these cases. [2] ( β ) The context 140. Article 2 requires the State to take appropriate steps to safeguard the lives of those within its jurisdiction ( see L.C.B. v. the United Kingdom, cited above, § 36, and the decision in Powell, cited above); in the public-health sphere, these positive obligations require States to make regulations compelling hospitals, whether private or public, to adopt appropriate measures for the protection of patients ’ lives (see Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 49, ECHR 2002 ‑ I; Glass, cited above; Vo v. France [GC], no. 53924/00, § 89, ECHR 2004 ‑ VIII; and Centre for Legal Resources on behalf of Valentin Câmpeanu, cited above, § 130). 141. The Court stresses that the issue before it in the present case is not that of euthanasia, but rather the withdrawal of life ‑ sustaining treatment (see paragraph 124 above). 142. In Haas ( cited above, § 54), the Court reiterated that the Convention had to be read as a whole (see, mutatis mutandis, Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (no. 2) [GC], no. 32772/02, § 83, ECHR 2009). In Haas (cited above, § 54) the Court considered that it was appropriate, in the context of examining a possible violation of Article 8, to refer to Article 2 of the Convention. The Court considers that the converse also applies : in a case such as the present one reference should be made, in examining a possible violation of Article 2, to Article 8 of the Convention and to the right to respect for private life and the notion of personal autonomy which it encompasses. In Pretty ( cited above, § 67) the Court was not prepared to exclude that preventing the applicant by law from exercising her choice to avoid what she considered would be an undignified and distressing end to her life constituted an interference with her right to respect for her private life as guaranteed under Article 8 § 1 of the Convention. In Haas ( cited above, § 51), it asserted that an individual ’ s right to decide in which way and at which time his or her life should end was one of the aspects of the right to respect for private life. The Court refers in particular to paragraphs 63 and 65 of the judgment in Pretty, where it stated as follows. “ ... In the sphere of medical treatment, the refusal to accept a particular treatment might, inevitably, lead to a fatal outcome, yet the imposition of medical treatment, without the consent of a mentally competent adult patient, would interfere with a person ’ s physical integrity in a manner capable of engaging the rights protected under Article 8 § 1 of the Convention. As recognised in domestic case-law, a person may claim to exercise a choice to die by declining to consent to treatment which might have the effect of prolonging his life ... The very essence of the Convention is respect for human dignity and human freedom. Without in any way negating the principle of sanctity of life protected under the Convention, the Court considers that it is under Article 8 that notions of the quality of life take on significance. In an era of growing medical sophistication combined with longer life expectancies, many people are concerned that they should not be forced to linger on in old age or in states of advanced physical or mental decrepitude which conflict with strongly held ideas of self and personal identity.” 143. The Court will take these considerations into account in examining whether the State complied with its positive obligations flowing from Article 2. It further observes that, in addressing the question of the administering or withdrawal of medical treatment in Glass and Burke, cited above, it took into account the following factors : (a) the existence in domestic law and practice of a regulatory framework compatible with the requirements of Article 2 ( see Glass, cited above); (b) whether account had been taken of the applicant ’ s previously expressed wishes and those of the persons close to him or her, as well as the opinions of other medical personnel ( see Burke, cited above); (c) the possibility to approach the courts in the event of doubts as to the best decision to take in the patient ’ s interests (ibid.). The Court will take these factors into consideration in examining the present case. It will also take account of the criteria laid down in the Council of Europe ’ s “ Guide on the decision ‑ making process regarding medical treatment in end-of-life situations ” (see paragraphs 60-68 above). ( γ ) The margin of appreciation 144. The Court reiterates that Article 2 ranks as one of the most fundamental provisions in the Convention, one which, in peace time, admits of no derogation under Article 15, and that it construes strictly the exceptions defined therein (see, among other authorities, Giuliani and Gaggio v. Italy [GC], no. 23458/02, §§ 174-77, ECHR 2011 ). However, in the context of the State ’ s positive obligations, when addressing complex scientific, legal and ethical issues concerning in particular the beginning or the end of life, and in the absence of consensus among the member States, the Court has recognised that the latter have a certain margin of appreciation. First of all the Court observes that in Vo (which concerned the acquittal on a charge of unintentional homicide of the doctor responsible for the death of the applicant ’ s unborn child), in examining the point at which life begins from the standpoint of Article 2 of the Convention, it concluded that this matter came within the States ’ margin of appreciation in this sphere. It took into consideration the absence of a common approach among the Contracting States and of a European consensus on the scientific and legal definition of the beginning of life ( cited above, § 82). The Court reiterated this approach in, inter alia, Evans v. the United Kingdom ([GC], no. 6339/05, §§ 54-56, ECHR 2007 ‑ I, concerning the fact that domestic law permitted the applicant ’ s former partner to withdraw his consent to the storage and use of embryos created jointly by them) and in A, B and C v. Ireland ([GC], no. 25579/05, § 237, ECHR 2010, in which the applicants essentially complained under Article 8 of the Convention of the prohibition on abortion in Ireland for health and well ‑ being reasons). 145. On the question of assisted suicide the Court noted, in the context of Article 8 of the Convention, that there was no consensus among the member States of the Council of Europe as to an individual ’ s right to decide in which way and at which time his or her life should end, and therefore concluded that the States ’ margin of appreciation in this area was “considerable” ( see Haas, cited above, § 55, and Koch, cited above, § 70). 146. The Court also stated, in general terms, in Ciechońska v. Poland ( no. 19776/04, § 65, 14 June 2011), concerning the authorities ’ responsibility for the accidental death of the applicant ’ s husband, that the choice of means for ensuring the positive obligations under Article 2 was in principle a matter that fell within the State ’ s margin of appreciation. 147. The Court notes that no consensus exists among the Council of Europe member States in favour of permitting the withdrawal of artificial life-sustaining treatment, although the majority of States appear to allow it. While the detailed arrangements governing the withdrawal of treatment vary from one country to another, there is nevertheless consensus as to the paramount importance of the patient ’ s wishes in the decision-making process, however those wishes are expressed (see paragraphs 74 ‑ 7 5 above). 148. Accordingly, the Court considers that in this sphere concerning the end of life, as in that concerning the beginning of life, States must be afforded a margin of appreciation, not just as to whether or not to permit the withdrawal of artificial life ‑ sustaining treatment and the detailed arrangements governing such withdrawal, but also as regards the means of striking a balance between the protection of patients ’ right to life and the protection of their right to respect for their private life and their personal autonomy (see, mutatis mutandis, A, B and C v. Ireland, cited above, § 237). However, this margin of appreciation is not unlimited (ibid. , § 238) and the Court reserves the power to review whether or not the State has complied with its obligations under Article 2. ( ii) Application to the present case 149. The applicants alleged that the Leonetti Act lacked clarity and precision, and complained of the process culminating in the doctor ’ s decision of 11 January 2014. In their view, these shortcomings were the result of the national authorities ’ failure to fulfil their duty of protection under Article 2 of the Convention. ( α ) The legislative framework 150. The applicants complained of a lack of precision and clarity in the legislation, which, in their submission, was not applicable to the case of Vincent Lambert, who was neither sick nor at the end of his life. They further maintained that the legislation did not define with sufficient precision the concepts of unreasonable obstinacy and treatment that could be withdrawn. 151. The Court has regard to the legislative framework established by the Public Health Code (hereinafter “the Code”) as amended by the Leonetti Act (see paragraphs 52 ‑ 54 above). It further reiterates that interpretation is inherent in the work of the judiciary ( see, among other authorities, Nejdet Şahin and Perihan Şahin v. Turkey [GC], no. 13279/05, § 85, 20 October 2011). It observes that, prior to the rulings given in the present case, the French courts had never been called upon to interpret the provisions of the Leonetti Act, although it had been in force for nine years. In the present case the Conseil d ’ État had the task of clarifying the scope of application of the Act and defining the concepts of “treatment” and “unreasonable obstinacy” (see below). The scope of application of the Act 152. In its ruling of 14 February 2014, the Conseil d ’ État determined the scope of application of the Act. It held that it was clear from the very wording of the applicable provisions, and from the parliamentary proceedings prior to enactment of the legislation, that the provisions in question were general in scope and were applicable to all users of the health system, whether or not the patient was in an end - of - life situation (see paragraph 33 above). 153. The Court notes that in his observations to the Conseil d ’ État Mr Jean Leonetti, the rapporteur for the Act, stated in his capacity as amicus curiae that it was applicable to patients who had brain damage and thus suffered from a serious condition that was incurable in the advanced stages, but who were not necessarily “at the end of life”. For that reason the legislature, in the title of the Act, had referred to “patients ’ rights and end-of-life issues” rather than “patients ’ rights in end ‑ of ‑ life situations ” (see, to similar effect, the observations of the National Medical Academy, paragraph 44 above). The concept of treatment 154. The Conseil d ’ État, in its ruling of 14 February 2014, interpreted the concept of treatment that could be withdrawn or limited. It held, in the light of Articles L. 1110 ‑ 5 and 1111 ‑ 4 of the Code, cited above, and of the parliamentary proceedings, that the legislature had intended to include among such forms of treatment all acts seeking to maintain the patient ’ s vital functions artificially, and that artificial nutrition and hydration fell into that category of acts. The amicus curiae submissions to the Conseil d ’ État agreed on this point. 155. The Court notes that the Council of Europe ’s “Guide on the decision ‑ making process regarding medical treatment in end ‑ of ‑ life situations” addresses these issues. The Guide specifies that treatment covers not only interventions whose aim is to improve a patient ’ s state of health by acting on the causes of the illness, but also interventions which have a bearing only on the symptoms and not on the aetiology of the illness, or which are responses to an organ dysfunction. According to the Guide, artificial nutrition and hydration are given to a patient following a medical indication and imply choices concerning medical procedures and devices (perfusion, feeding tubes). The Guide observes that differences in approach exist between countries. Some regard artificial nutrition and hydration as a form of treatment that may be limited or withdrawn in the circumstances and in accordance with the guarantees provided for in domestic law. The considerations to be taken into account in this regard are the patient ’ s wishes and whether or not the treatment is appropriate in the situation in question. In other countries they are regarded as a form of care meeting the individual ’ s basic needs which cannot be withdrawn unless the patient, in the terminal phase of an end ‑ of ‑ life situation, has expressed a wish to that effect (see paragraph 61 above). The concept of unreasonable obstinacy 156. Under the terms of Article L. 1110 ‑ 5 of the Code, treatment will amount to unreasonable obstinacy if it is futile or disproportionate or has “no other effect than to sustain life artificially” (see paragraph 53 above). It is this last criterion which was applied in the present case and which the applicants consider to be imprecise. 157. In his observations to the Conseil d ’ État in an amicus curiae capacity, Mr Leonetti stated that this wording, which was stricter than the wording originally envisaged ( treatment “which prolongs life artificially”) was more restrictive and referred to artificially sustaining life “in the purely biological sense, in circumstances where, firstly, the patient has major irreversible brain damage and, secondly, his or her condition offers no prospect of a return to awareness of self or relationships with others” (see paragraph 44 above). In the same vein, the National Medical Council emphasised the importance of the notion of temporality, observing that where a pathological condition had become chronic, resulting in the person ’ s physiological deterioration and the loss of his or her cognitive and relational faculties, obstinacy in administering treatment could be regarded as unreasonable if no signs of improvement were apparent (ibid.) 158. In its judgment of 24 June 2014, the Conseil d ’ État detailed the factors to be taken into account by the doctor in assessing whether the criteria for unreasonable obstinacy were met, while making clear that each situation had to be considered on its own merits. These were: the medical factors (which had to cover a sufficiently long period, be assessed collectively and relate in particular to the patient ’ s current condition, the change in that condition, his or her degree of suffering and the clinical prognosis) and the non ‑ medical factors, namely the patient ’ s wishes, however expressed, to which the doctor had to “attach particular importance”, and the views of the person of trust, the family or those close to the patient. 159. The Court notes that the Conseil d ’ État established two important safeguards in that judgment. Firstly, it stated that “the sole fact that a person is in an irreversible state of unconsciousness or, a fortiori, has lost his or her autonomy irreversibly and is thus dependent on such a form of nutrition and hydration, does not by itself amount to a situation in which the continuation of treatment would appear unjustified on grounds of unreasonable obstinacy”. Secondly, it stressed that where a patient ’ s wishes were not known, they could not be assumed to consist in a refusal to be kept alive ( see paragraph 48 above ). 160. On the basis of this analysis, the Court cannot subscribe to the applicants ’ arguments. It considers that the provisions of the Leonetti Act, as interpreted by the Conseil d ’ État, constitute a legal framework which is sufficiently clear, for the purposes of Article 2 of the Convention, to regulate with precision the decisions taken by doctors in situations such as that in the present case. The Court therefore concludes that the State put in place a regulatory framework apt to ensure the protection of patients ’ lives ( see paragraph 14 0 above ). ( β ) The decision-making process 161. The applicants complained of the decision-making process, which, in their view, should have been genuinely collective or at the very least have provided for mediation in the event of disagreement. 162. The Court notes at the outset that neither Article 2 nor its case-law can be interpreted as imposing any requirements as to the procedure to be followed with a view to securing a possible agreement. It points out that in Burke, cited above, it found the procedure consisting in determining the patient ’ s wishes and consulting those close to him or her as well as other medical personnel to be compatible with Article 2 (see paragraph 143 above). 163. The Court observes that, although the procedure under French law is described as “collective” and includes several consultation phases (with the care team, at least one other doctor, the person of trust, the family or those close to the patient), it is the doctor in charge of the patient alone who takes the decision. The patient ’ s wishes must be taken into account and the decision itself must be accompanied by reasons and is added to the patient ’ s medical file. 164. In his observations as amicus curiae, Mr Jean Leonetti pointed out that the Act gave the doctor sole responsibility for the decision to withdraw treatment and that it had been decided not to pass that responsibility on to the family, in order to avoid any feelings of guilt and to ensure that the person who took the decision was identified. 165. It is clear from the comparative-law materials available to the Court that in those countries which authorise the withdrawal of treatment, and where the patient has not drawn up any advance directives, there exists a great variety of arrangements governing the taking of the final decision to withdraw treatment. It may be taken by the doctor (this is the most common situation), jointly by the doctor and the family, by the family or legal representative, or by the courts ( see paragraph 75 above ). 166. The Court observes that the collective procedure in the present case lasted from September 2013 to January 2014 and that, at every stage of its implementation, it exceeded the requirements laid down by law. Whereas the procedure provides for the consultation of one other doctor and, where appropriate, a second one, Dr Kariger consulted six doctors, one of whom was designated by the applicants. He convened a meeting of virtually the entire care team and held two meetings with the family which were attended by Vincent Lambert ’ s wife, his parents and his eight siblings. Following those meetings Vincent Lambert ’ s wife and six of his brothers and sisters argued in favour of withdrawing treatment, as did five of the six doctors consulted, while the applicants opposed such a move. The doctor also held discussions with François Lambert, Vincent Lambert ’ s nephew. His decision, which ran to thirteen pages (an abridged seven-page version of which was read out to the family) provided very detailed reasons. The Conseil d ’ État held in its judgment of 24 June 2014 that it was not tainted by any irregularity (see paragraph 50 above). 167. The Conseil d ’ État found that the doctor had complied with the requirement to consult the family and that it had been lawful for him to take his decision in the absence of unanimity among the family members. The Court notes that French law as it currently stands provides for the family to be consulted (and not for it to participate in taking the decision), but does not make provision for mediation in the event of disagreement between family members. Likewise, it does not specify the order in which family members ’ views should be taken into account, unlike in some other countries. 168. The Court notes the absence of consensus on this subject ( see paragraph 16 5 above ) and considers that the organisation of the decision ‑ making process, including the designation of the person who takes the final decision to withdraw treatment and the detailed arrangements for the taking of the decision, fall within the State ’ s margin of appreciation. It notes that the procedure in the present case was lengthy and meticulous, exceeding the requirements laid down by the law, and considers that, although the applicants disagree with the outcome, that procedure satisfied the requirements flowing from Article 2 of the Convention (see paragraph 143 above). ( γ ) Judicial remedies 169. Lastly, the Court will examine the remedies that were available to the applicants in the present case. It observes that the Conseil d ’ État, called upon for the first time to rule on an appeal against a decision to withdraw treatment under the Leonetti Act, provided some important clarifications in its rulings of 14 February and 24 June 2014 concerning the scope of the review carried out by the urgent-applications judge of the administrative court in cases such as the present one. 170. The applicants had lodged an urgent application with the administrative court for protection of a fundamental freedom under Article L. 521-2 of the Administrative Courts Code. This Article provides that the judge, “when hearing an application of this kind justified by particular urgency, may order any measures necessary to safeguard a fundamental freedom allegedly breached in a serious and manifestly unlawful manner by an administrative authority”. When dealing with an application on this basis, the urgent ‑ applications judge of the administrative court normally rules alone and as a matter of urgency, and may order interim measures on the basis of a “plain and obvious” test ( manifest unlawfulness). 171. The Court notes that, as defined by the Conseil d ’ État (see paragraph 32 above), the role of the urgent-applications judge entails the power not only to suspend implementation of the doctor ’ s decision but also to conduct a full review of its lawfulness (and not just apply the test of manifest unlawfulness), if necessary sitting as a member of a bench of judges and, if needs be, after ordering an expert medical report and seeking the opinions of persons acting in an amicus curiae capacity. 172. The Conseil d ’ État also specified in its judgment of 24 June 2014 that the particular role of the judge in such cases meant that he or she had to examine – in addition to the arguments alleging that the decision in question was unlawful – any arguments to the effect that the legislative provisions that had been applied were incompatible with the Convention. 173. The Court notes that the Conseil d ’ État examined the case sitting as a full court (the seventeen-member Judicial Assembly), which is highly unusual in injunction proceedings. In its ruling of 14 February 2014, it stated that the assessment carried out at Liège University Hospital dated from two and a half years previously, and considered it necessary to have the fullest information possible on Vincent Lambert ’ s state of health. It therefore ordered an expert medical report, which it entrusted to three recognised specialists in neuroscience. Furthermore, in view of the scale and difficulty of the issues raised by the case, it requested the National Medical Academy, the National Ethics Advisory Committee, the National Medical Council and Mr Jean Leonetti to submit general observations to it as amici curiae, in order to clarify in particular the concepts of unreasonable obstinacy and sustaining life artificially. 174. The Court notes that the expert report was prepared in great depth. The experts examined Vincent Lambert on nine occasions, conducted a series of tests and familiarised themselves with the entire medical file and with all the items in the judicial file of relevance for their report. Between 24 March and 23 April 2014 they also met all the parties concerned (the family, the medical and care team, the medical consultants and representatives of UNAFTC and the hospital). 175. In its judgment of 24 June 2014, the Conseil d ’ État began by examining the compatibility of the relevant provisions of the Public Health Code with Articles 2, 8, 6 and 7 of the Convention (see paragraph 47 above), before assessing the conformity of Dr Kariger ’ s decision with the provisions of the Code (see paragraphs 48 ‑ 50 above). Its review encompassed the lawfulness of the collective procedure and compliance with the substantive conditions laid down by law, which it considered – particularly in the light of the findings of the expert report – to have been satisfied. It noted in particular that it was clear from the experts ’ findings that Vincent Lambert ’ s clinical condition corresponded to a chronic vegetative state, that he had sustained serious and extensive injuries whose severity, coupled with the period of five and a half years that had passed since the accident, led to the conclusion that it was irreversible and that there was a “poor clinical prognosis”. In the view of the Conseil d ’ État, these findings confirmed those made by Dr Kariger. 176. The Court further observes that the Conseil d ’ État, after stressing “the particular importance” which the doctor must attach to the patient ’ s wishes (see paragraph 48 above), sought to ascertain what Vincent Lambert ’ s wishes had been. As the latter had not drawn up any advance directives or designated a person of trust, the Conseil d ’ État took into consideration the testimony of his wife, Rachel Lambert. It noted that she and her husband, who were both nurses with experience of patients in resuscitation and those with multiple disabilities, had often discussed their professional experiences and that on several such occasions Vincent Lambert had voiced the wish not to be kept alive artificially in a highly dependent state (see paragraph 50 above). The Conseil d ’ État found that those remarks – the tenor of which was confirmed by one of Vincent Lambert ’ s brothers – had been reported by Rachel Lambert in precise detail and with the corresponding dates. It also took account of the fact that several of Vincent Lambert ’ s other siblings had stated that these remarks were in keeping with their brother ’ s personality, past experience and views, and noted that the applicants did not claim that he would have expressed remarks to the contrary. The Conseil d ’ État observed, lastly, that the consultation of the family, prescribed by law, had taken place (ibid.). 177. The applicants submitted, relying on Article 8 of the Convention, that the Conseil d ’ État should not have taken into consideration Vincent Lambert ’ s spoken remarks, which they considered to be too general. 178. The Court points out first of all that it is the patient who is the principal party in the decision-making process and whose consent must remain at its heart; this is true even where the patient is unable to express his or her wishes. The Council of Europe ’ s “Guide on the decision ‑ making process regarding medical treatment in end-of-life situations” recommends that the patient should be involved in the decision-making process by means of any previously expressed wishes, which may have been confided orally to a family member or close friend (see paragraph 63 above). 179. The Court also observes that, according to the comparative ‑ law materials available to it, in the absence of advance directives or of a “living will”, a number of countries require that efforts be made to ascertain the patient ’ s presumed wishes, by a variety of means (statements of the legal representative or the family, other factors testifying to the patient ’ s personality and beliefs, and so forth ). 180. Lastly, the Court points out that in its judgment in Pretty ( cited above, § 63), it recognised the right of each individual to decline to consent to treatment which might have the effect of prolonging his or her life. Accordingly, it takes the view that the Conseil d ’ État was entitled to consider that the testimony submitted to it was sufficiently precise to establish what Vincent Lambert ’ s wishes had been with regard to the withdrawal or continuation of his treatment. ( δ ) Final considerations 181. The Court is keenly aware of the importance of the issues raised by the present case, which concerns extremely complex medical, legal and ethical matters. In the circumstances of the case, the Court reiterates that it was primarily for the domestic authorities to verify whether the decision to withdraw treatment was compatible with the domestic legislation and the Convention, and to establish the patient ’ s wishes in accordance with national law. The Court ’ s role consisted in ascertaining whether the State had fulfilled its positive obligations under Article 2 of the Convention. On the basis of that approach, the Court has found both the legislative framework laid down by domestic law, as interpreted by the Conseil d ’ État, and the decision-making process, which was conducted in meticulous fashion in the present case, to be compatible with the requirements of Article 2. As to the judicial remedies that were available to the applicants, the Court has reached the conclusion that the present case was the subject of an in ‑ depth examination in the course of which all points of view could be expressed and all aspects were carefully considered, in the light of both a detailed expert medical report and general observations from the highest ‑ ranking medical and ethical bodies. Consequently, the Court concludes that the domestic authorities complied with their positive obligations flowing from Article 2 of the Convention, in view of the margin of appreciation left to them in the present case. (ε ) Conclusion 182. It follows that there would be no violation of Article 2 of the Convention in the event of implementation of the Conseil d ’ État judgment of 24 June 2014. III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 183. The applicants maintained that they were potentially victims of a violation of their right to respect for their family life with their son and brother, in breach of Article 8 of the Convention. 184. The Court is of the view that this complaint is absorbed by those raised by the applicants under Article 2 of the Convention. In view of its finding concerning that Article (see paragraph 18 2 above), the Court considers that it is not necessary to rule separately on this complaint. IV. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 185. The applicants further complained that the doctor who took the decision of 11 January 2014 was not impartial, as he had previously taken the same decision, and that the expert medical report ordered by the Conseil d ’ État had not been fully adversarial. They relied on Article 6 § 1 of the Convention, the relevant parts of which provide : “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.” 186. Even assuming Article 6 § 1 to be applicable to the procedure resulting in the doctor ’ s decision of 11 January 2014, the Court considers that these complaints, to the extent that they have not been dealt with already under Article 2 of the Convention (see paragraphs 150 ‑ 1 81 above), are manifestly ill ‑ founded. 187. It follows that this aspect of the application must be rejected pursuant to Article 35 §§ 3 ( a) and 4 of the Convention. | The Court held that there would be no violation of Article 2 (right to life) of the European Convention on Human Rights in the event of implementation of the Conseil d’État judgment of 24 June 2014. It observed in particular that there was no consensus among the Council of Europe member States in favour of permitting the withdrawal of life-sustaining treatment. In that sphere, which concerned the end of life, States must be afforded a margin of appreciation. The Court considered that the provisions of the Act of 22 April 2005, as interpreted by the Conseil d’Etat, constituted a legal framework which was sufficiently clear to regulate with precision the decisions taken by doctors in situations such as that in the present case. The Court was further keenly aware of the importance of the issues raised by the present case, which concerned extremely complex medical, legal and ethical matters. In the circumstances of the case, the Court reiterated that it was primarily for the domestic authorities to verify whether the decision to withdraw treatment was compatible with the domestic legislation and the Convention, and to establish the patient’s wishes in accordance with national law. The Court’s role consisted in examining the State’s compliance with its positive obligations flowing from Article 2 of the Convention. The Court found the legislative framework laid down by domestic law, as interpreted by the Conseil d’État, and the decision-making process, which had been conducted in meticulous fashion, to be compatible with the requirements of Article 2. The Court reached the conclusion that the present case had been the subject of an in-depth examination in the course of which all points of view could be expressed and that all aspects had been carefully considered, in the light of both a detailed expert medical report and general observations from the highest-ranking medical and ethical bodies2. |
144 | Unaccompanied foreign minor | THE LAW ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 40. The applicant complained that the French authorities had failed to fulfil their obligation to protect foreign unaccompanied minors who, like him, were living in the Calais heath area. He complained more specifically about the fact that the decision of the Youth Judge of the Boulogne-sur-Mer tribunal de grande instance of 22 February 2016, ordering his temporary placement in facilities of the child welfare service had not been implemented. He relied on Article 3, Article 6 § 1 and Article 13 of the Convention, the first of which reads as follows: Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 41. Reiterating that it is master of the characterisation to be given in law to the facts of the case, and finding that these complaints converge, the Court finds it appropriate to examine the applicant’s allegations under Article 3 of the Convention alone (see, for example, Bouyid v. Belgium [GC], no. 23380/09, § 55, ECHR 2015, and Lopes de Sousa Fernandes v. Portugal [GC], no. 56080/13, § 145, 19 December 2017; see also Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 126, 20 March 2018). It will thus seek to ascertain whether the respondent State has failed in its obligations under that Article by not implementing the necessary means to enforce the decision of the Youth Judge of the Boulogne-sur-Mer tribunal de grande instance of 22 February 2016 ordering the applicant’s temporary placement and thus failing to take him into shelter when he had spent several months in the Calais heath area. Admissibility 42. The Government argued that the applicant had not exhausted domestic remedies. In their view he should have lodged an urgent application for the protection of a fundamental freedom ( référé-liberté under Article L. 251-2 of the Code of Administrative Justice) asking the judge to order the local authority ( conseil départemental ) to take him into shelter on the basis of his right to emergency accommodation. 43. The applicant pointed out that the obligation to exhaust domestic remedies was confined to a normal use of effective remedies, merely to penalise the failure to make use of any essential course of action. He added, in particular, that he had availed himself of the “genuinely appropriate procedure” by applying to the Youth Judge to decide on his placement, emphasising that such a decision was in itself immediately enforceable. 44. The Court notes that the States, such as the respondent State, which are parties to the Convention on the Rights of the Child, are required by Article 20 thereof to “ensure alternative care”, “in accordance with their national laws”, for any child who, within their jurisdiction, is “temporarily or permanently deprived of his or her family environment”; while Article 2 states that this obligation is irrespective of the child’s national origin (see paragraph 38 above). Moreover, it can be seen from the Court’s case-law that, as part of their positive obligations under Article 3 of the Convention, the States Parties are required to protect and take care of unaccompanied foreign minors (see paragraphs 70-71 below). 45. The provision of protection and care to the applicant could thus be regarded as an automatic obligation imposed on the domestic authorities. 46. Owing to the particularly difficult conditions in which he found himself, the applicant, through the non-governmental organisation Cabane juridique, lodged an application with the Youth Judge under Article 375 of the Civil Code seeking to be taken into care by the child welfare services. This provision authorises the judge to order educational assistance measures if the health, safety or morals of an unemancipated minor are in danger, or if the conditions of his or her education or physical, emotional, intellectual and social development are seriously compromised. The judge may in particular receive an application from the youth himself or from the public prosecutor’s office; he may also examine the matter of his own motion on an exceptional basis (see paragraph 37 above). Taking into account the applicant’s situation of danger and the need to take him into shelter, the Youth Judge granted the request by a decision of 22 February 2016, which was automatically enforceable on a provisional basis and against which no appeal was lodged (see paragraph 31 above). The authorities were required to enforce this decision, without any further proceedings being required under domestic law for this purpose. They could also be required to protect and take care of the applicant from the moment they became aware of his situation. In accordance with the principle of subsidiarity, the application to the Youth Judge gave the respondent State the opportunity to prevent or remedy the breach of the positive obligations that Article 3 of the Convention could impose on it on account of the minor’s situation. Thus, in the very particular circumstances of his case, the applicant did what could reasonably be expected of him for the purposes of Article 35 § 1 of the Convention. 47. Accordingly, the objection is rejected. 48. The Court notes, moreover, that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible. MeritsParties’ observations Parties’ observations Parties’ observations (a) The applicant 49. The applicant pointed out that, in the Rahimi v. Greece judgment (no. 8687/08, 5 April 2011), the Court found that the failure of the national authorities to take care of an unaccompanied foreign minor constituted a breach of Article 3 of the Convention in so far as they had left him to fend for himself and in general he had been taken care of solely by local non ‑ governmental organisations. He further emphasised that the authorities were required to take account of the extreme vulnerability of such minors. He complained that the decision on his provisional placement of 22 February 2016 had not been enforced, stressing that he had never opposed its enforcement and had absolutely no objection to being taken into shelter. He considered more generally that the authorities should have gone to the “jungle” to provide him with basic material support and initiate welfare formalities that would enable him to be directed to facilities where he could be taken into shelter, such as the child welfare service’s accommodation. He pointed out that départements and the State had a particular obligation to protect unaccompanied minors and minors in situations of danger. He observed that the Government had not adduced any evidence to show that steps had been taken to trace him. He also rejected the Government’s argument that his lawyer or the associations following his case should have taken physical steps, in particular by taking him and the other minors concerned to the child welfare services. Pointing out that only the prefect and the local authority ( conseil départemental ) were responsible for the organisation of the reception and placement of unaccompanied foreign minors, he took the view that it would be legally erroneous and unacceptable to shift this burden to others, adding that his lawyer would not have had the material resources to take such action. The Rahimi judgment, cited above, showed that the obligation to take care of unaccompanied foreign minors did not fall on third parties but on the authorities, and on the latter alone. 50. The applicant also criticised the State for proceeding with the demolition of the southern part of the “jungle” without having first taken into shelter the unaccompanied minors who had been living there. He had thus been deprived of shelter, when he was only twelve years old and the operation had taken place in mid-winter. 51. The applicant adduced, inter alia, a report broadcast on the France 3 television news on 8 April 2016, showing that unaccompanied minors had seen their shelters demolished during the clearance of the southern part of the heath area without being informed of an alternative solution, and that several of them had been forced to settle in the northern part of the heath where many other people were already living and where they were confronted with particularly difficult living conditions. The report also showed that, in the aftermath of the clearance of the southern zone, in spite of the decisions of the urgent applications judge of November 2015 ordering the prefect to enumerate the unaccompanied foreign minors present on the site with a view to their placement (see paragraphs 14 and 15 above), the deputy prefect, who was interviewed in the report, did not have a list of their names. This showed, in the applicant’s submission, that no steps had been taken by the authorities to identify the unaccompanied minors who were the subject of a placement decision. 52. The applicant also referred to a decision of the Immigration and Asylum Chamber of the Upper Tribunal of 29 January 2016, which noted the dangers that prevailed on the heath, including the exploitation of unaccompanied children. He further relied on the concluding observations of 23 February 2016 of the UN Committee on the Rights of the Child and on a report of 12 October 2016 of the Special Representative of the Council of Europe Secretary General on migration and refugees, which showed that the mechanisms for identifying, and for providing care and support to, unaccompanied foreign minors in Calais were inadequate. He also noted that the non-governmental organisations present on the heath had not been contacted by the authorities to seek a global solution for the unaccompanied minors. (b) The Government 53. The Government submitted that the failure to comply with the protection measure ordered by the Youth Judge on 22 February 2016 could be attributed to the applicant’s conduct, which had allegedly prevented its implementation. Although the decision had been requested by the applicant, he had not appeared at the hearing. They emphasised that the child welfare service of the département had taken the necessary action. In that connection, the service had prepared a placement for the applicant (and for the other eleven minors concerned by a similar measure on the same day) but he had not turned up; and neither his ad hoc guardian, nor the associations that supported him, nor his lawyer, had taken him to that location or informed the service of his whereabouts. The child welfare service had then taken steps to trace the applicant on the heath. It had contacted the association which provided emergency shelter there on behalf of the département and to which the State had entrusted the task of enumerating unaccompanied minors ( France Terre d’Asile ), but it replied that it did not know the applicant. 54. According to the Government, the fact that the applicant had not appeared at the hearing before the Youth Judge, that he had not kept in touch with his ad hoc guardian, his lawyer or the association following his case, that he had not appeared at the home designated for his placement, and that he had entered the United Kingdom in the week of 20 March – less than a month after his request for care – showed that he was not seeking long ‑ term shelter and care from the French authorities but had above all wished to travel to the United Kingdom. Observations of third-party interveners (a) Défenseur des droits 55. The Défenseur des droits (Defender of rights) pointed out that this case was an illustration of the dramatic humanitarian situation in which displaced people found themselves in the Calais and Grande Synthe areas, caused in particular by the Franco-British agreements and the pitfalls of European migration policy. He stated that, following an in-depth investigation, on-site inspections and meetings with all stakeholders and his British counterpart, he had issued reports and decisions, and had made recommendations to the competent authorities specifically concerning the situation of unaccompanied minors, their reception and care – in particular the establishment of an unconditional shelter scheme on the heath – also monitoring their implementation. He added that to date their situation still remained a major concern for him. 56. The Défenseur des droits referred to his report of October 2015, in which he had described the alarming living conditions of unaccompanied minors on the Calais heath and had taken the view that they substantiated a situation of danger which automatically imposed an obligation of protection on the authorities; he had also described the dangers to which these minors were exposed (violence, risk of trafficking and prostitution, risky behaviour such as alcohol abuse, and trauma related to living conditions and risky attempts to cross the sea to England), aggravated by the lack of regular and adequate medical follow-up. He pointed out that the French authorities were bound by both domestic and international law to shelter and take care of them (he referred in particular to Article 20 of the International Convention on the Rights of the Child, General Comment No. 6 of the UN Committee on the Rights of the Child, the Mubilanzila Mayeka and Kaniki Mitunga v. Belgium (no. 13178/03, ECHR 2006-XI) and Abdullahi Elmi and Aweys Abubakar v. Malta (nos. 25794/13 and 28151/13, 22 November 2016) judgments, Article 375 of the Civil Code and Article L. 112-3 of the Social Action and Family Code). Above all, the authorities had been required to enumerate the minors concerned and offer them appropriate protection, as indeed the Administrative Court had ordered them to do on 2 November 2015. Having been informed that 316 unaccompanied minors had been identified on the heath as of 5 January 2016, the Défenseur des droits expressed concern about the lack of information regarding the identification and monitoring of 77 of them. He added that, on 23 February 2016, the United Nations Committee on the Rights of the Child had expressed concern about the precarious situation of children, the authorities’ refusal to register them and the insufficient resources allocated to infrastructure and services. He also emphasised that, when an unaccompanied minor was entrusted to the child protection services by judicial decision, the failure of the authorities to implement that decision deprived the right to protection of its substance. 57. The Défenseur des droits further noted that the right to education of unaccompanied minors living on the Calais heath was far from being guaranteed, that few of them had been informed of their rights or supported in their efforts to be reunited with their families, efforts which were complicated by the fact that before they could submit asylum applications it was necessary in practice for them first to have been taken into the care of the child welfare service or even to have been placed under guardianship. 58. The Défenseur des droits indicated that following the clearance of the southern part of the heath in February 2016, associations had deplored the disappearance of around 100 unaccompanied minors. The living conditions of those who were still there remained worrying: as the authorities had not sufficiently anticipated the consequences of this operation for the situation of unaccompanied minors, many of them, being homeless, had been forced to live in even more extreme squalor. On 20 April 2016 he had recommended the implementation of regular and intensive socio-educational outreach by specially trained social workers, with a view to establishing a relationship of trust and allowing the stabilisation of unaccompanied minors on the site and effective care, stressing that the minor’s acceptance of the protection measure should be sought but should not constitute a precondition for any attempt to find a solution. In his view, the fact that some did not request child protection and did not support the proposed measures could not justify the inaction on the part of the public authorities, which had an obligation to ensure their protection and to consider how to achieve it, taking into account the specific circumstances of the group concerned. 59. The Défenseur des droits additionally observed that, in spite of insisting that the authorities should act on this matter, the unconditional and adapted sheltering of unaccompanied minors that he had advocated had never taken place, as the facilities provided by the authorities – among them a reception centre 45 km from Calais – were ineffective. He pointed out that the specificity of these minors – their wish to go to England and refusal to settle in France – should have been taken into account before any considerations about their care. In this connection he had, in particular, recommended that an accommodation centre and a daytime reception facility be opened near the heath. (b) Commission nationale consultative des droits de l’homme 60. The Commission nationale consultative des droits de l’homme (“CNCDH” – National Advisory Commission on Human Rights), which stated that it had conducted three fact-finding missions to Calais in 2015 and 2016, referred to the opinions and statements that it had issued: opinion “on the situation of unaccompanied foreign minors in France; taking stock one year after the circular of 31 May 2013 on the arrangements for taking care of unaccompanied foreign youths (national system for taking to shelter, assessment and orientation)” (26 June 2014); opinion “on the situation of migrants in Calais and its surroundings” (2 July 2015); opinion on the situation of migrants in Grande-Synthe (26 May 2016); opinion “on the situation of migrants in Calais and its surroundings” (7 July 2016); statements on “the clearance of the Calais shantytown and its consequences: the case of minors” (adopted 8 November 2016); statement “on the situation of unaccompanied minors placed in migrant reception and orientation centres” (26 January 2017); and a declaration on the treatment of migrants (17 October 2017). 61. The CNCDH highlighted the worrying situation in which many unaccompanied foreign minors found themselves during the period when the applicant was in the Calais area. It observed that in France child protection fell within the remit of the départements, while the State was responsible for migration matters, and that, in the case of unaccompanied foreign minors, who did not have a specific status, this led to an “institutional ping-pong”, preventing a coherent understanding of their specificity and particular vulnerability, and neglecting the best interests of the child, whereas they were above all to be seen as children rather than aliens. Their access to rights and justice was limited, in particular as regards their access to the asylum procedure: an ad hoc guardian could only be appointed to represent them once they had taken steps to benefit from protection, while some steps (including withdrawal of the asylum application) could only be taken after such appointment. This procedure, in addition to the steps to be taken under the head of child protection, was complex and slow. According to the CNCDH, the difficulties encountered by unaccompanied foreign minors in the context of asylum applications or their administrative situation revealed a security logic that led to the minor being regarded first and foremost as a foreigner, while a child in danger had be covered by a protection measure regardless of his or her personal status and situation in terms of the rules on entry and residence. 62. The CNCDH also took the view that the State’s shortcomings in the care of unaccompanied foreign minors in Calais had been numerous and systematic. First, court decisions had not been enforced, in particular placement decisions. Secondly, the reception facilities were inadequate, so that between 2014 and the end of 2016 several hundred unaccompanied foreign minors had been living in appalling conditions in the Calais shantytown, characterised by squalor, deprivation and insecurity. Thirdly, their protection against the risks of trafficking and exploitation was inadequate. Fourthly, their rights to education and health were insufficiently guaranteed: even in cases of emergency temporary shelter, schooling or training had rarely been put in place; extreme and inhumane living conditions on the heath were triggering or aggravating disease, as well as traumas linked to their chaotic migration history, conditions of anxiety and depression and impaired mental health due to exhaustion and survival needs. On this last point, the CNCDH added that the significant increase in population density in the northern part of the camp caused by the clearance of the southern zone in February 2015 had considerably increased the risk of contagion of infectious diseases. The State’s shortcomings and failures were all the more unjustifiable as it had been more than twenty years since the Calais area had first been confronted with a large number of migrants wishing to travel to the United Kingdom, and therefore the situation was not exceptional. (c) Groupe d’information et de soutien des immigrés 63. The non-governmental organisation Groupe d’information et de soutien des immigrés (“GISTI” – Migrant Information and Support Group) submitted that the material living conditions of unaccompanied minors in the heath area of Calais had led to systematic violations of Article 3 of the Convention, given their particular vulnerability. The chronic failure to provide them with care, before, during and after the clearance of the southern zone had increased their vulnerability, and the authorities had not enforced decisions in their favour, whereas particular attention should have been paid to them because of their age and their particularly insecure situation. It referred to the observations by the Défenseur des droits since 2015 and by UNICEF in 2016 regarding the poor living conditions of unaccompanied minors on the heath, the dangers to which they were exposed, the State’s failure in its duty to protect and take care of them, the lack of legal assistance and the ineffectiveness of the procedures initiated for family reunion. It further pointed out that in law, the fact that an individual was a minor took precedence over his or her status as an alien. 64. GISTI denounced the shortcomings of the French asylum procedure and the failure to provide information to minors in this connection, noting that this had been observed by the Immigration and Asylum Chamber of the UK’s Upper Tribunal in its decision of 29 January 2016 (cited above) and by the Lille Administrative Court which, on 11 February 2016, had compelled the authorities to register applications from minors who had been refused by officials in charge of the relevant service. 65. It further noted that, as a result of the clearance of the Calais heath area, a large number of unaccompanied foreign minors had been left homeless or had been inadequately or inappropriately provided for, their number having been estimated at 1,932 in October 2016. 66. GISTI referred to the December 2016 report of the Défenseur des droits on the dismantling of the camps and the provision made for the displaced migrants. The report stated that the authorities had failed to take the necessary measures to protect unaccompanied minors, had allowed them to live in inhumane conditions and in situations of danger, and had not taken them to shelter or found placements for them prior to the clearance operation. The third party also noted that, in a decision of 26 June 2017, the urgent applications judge at the Lille Administrative Court had found that unaccompanied minors still present in the Calais area were very often exposed to inhuman and degrading treatment on account of the ineffectiveness of the identification and orientation measures put in place. (d) Cabane juridique 67. The non-governmental organisation Cabane juridique, present in the heath area of Calais before and during the clearance operation, observed that in the years 2015 and 2016 the authorities had unduly decided not to introduce any arrangements in Calais for the care of unaccompanied foreign minors, in order to avoid a “pull factor”, or set up any shelters, so that minors would be encouraged to move away from the city rather than remaining in contact with the people smugglers. 68. First of all, Cabane juridique deplored the inadequacies of the provisions for unaccompanied foreign minors from a quantitative standpoint. No accommodation had been provided in Calais and the facility set up to receive and support them was located in Saint-Omer, some 50 kilometres away, and as noted by the Défenseur des droits the outreach efforts in Calais were insufficient. While a temporary reception centre of 1,500 places had been set up in the northern part of the heath after the clearance of the southern part, it was not open to unaccompanied minors. According to the third party, during the entire existence of the shantytown, no specific reception and care facilities for unaccompanied minors had existed in Calais, with the result that they had been forced to remain in makeshift shelters unless they pretended to be adults in order to be admitted to the temporary reception centre. 69. Cabane juridique further denounced the insufficient provision for unaccompanied foreign minors in Calais from a qualitative standpoint, observing in particular that inadequate consideration had been given to their migration plans. It noted, for example, that until the end of February 2016, it had been very difficult for those wishing to join a family member in the United Kingdom to obtain even the registration of an asylum application for the purpose of implementing the family reunion procedure under the Dublin III Regulation; while applications could subsequently be lodged, they had been processed very slowly. Moreover, throughout the shantytown’s existence, the unaccompanied minors concerned had received very little information on how to travel legally to the United Kingdom. It was also because the authorities had not sufficiently taken into account the migration plans of unaccompanied minors that the accommodation system put in place had been shunned and misunderstood by the minors concerned and had thus been a failure. 70. Cabane juridique further pointed out that, without an accommodation solution, unaccompanied foreign minors on the heath had been exposed to violence. About twenty of them had reported to it that they had been victims of violence. Referring to the above-mentioned UNICEF report, it alluded to mental health problems, sexual abuse, physical violence and cases of prostitution, trafficking and exploitation. It also referred to a police report which showed that between 1 and 21 February 2016, 103 tear gas grenades had been thrown in Calais against the migrants during particularly violent police operations, giving rise to almost daily clashes. 71. The third party took the view that the State engaged its responsibility under Article 3 of the Convention whenever an unaccompanied minor was left homeless and exposed to risks of inhuman and degrading treatment as a result of the inadequacy of the protection system. It noted that, in its decision of 23 November 2015 (see paragraph 15 above), the Conseil d’État had found that the shortcomings of the authorities in the handling of minors in the Calais shantytown characterised a disregard for the principle of the dignity of the human person. It added that, even at the present time when the shantytown no longer existed, nothing was being done in the Calais area to guarantee prompt protection measures for unaccompanied foreign minors. The Court’s assessment (a) General considerations and principles 72. Ill‑treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of that severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim. The Court has previously deemed treatment to be “degrading” because it was such as to arouse in the victims feelings of fear, anguish and inferiority capable of humiliating and debasing them (see, among many other authorities, Rahimi, cited above, § 59, and the judgments cited therein). 73. The obligation on High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken in conjunction with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment. Those Articles, taken together, should enable effective protection to be provided, particularly to children and other vulnerable members of society, including reasonable measures to prevent ill-treatment of which the authorities have or ought to have knowledge (see, among many other authorities, Rahimi, cited above, §§ 60 and 62, and the judgments cited therein). 74. In cases concerning foreign minors, whether accompanied or unaccompanied, the child’s situation of extreme vulnerability is the decisive factor and it takes precedence over considerations relating to his or her status as an irregular migrant (see, for example, N.T.P. and Others v. France, no. 68862/13, § 44, 24 May 2018, and the judgments cited therein, and Rahimi, cited above, § 87). The Court thus emphasised in Rahimi (ibid.) that as an unaccompanied foreign minor without leave to remain the applicant fell into “the category of the most vulnerable individuals in society”, and that it had been incumbent on Greece to protect him and provide for him by taking appropriate measures in accordance with its positive obligations under Article 3. 75. The Rahimi case concerned the situation in Greece of an unaccompanied minor, an Afghan national aged 15. Having arrived alone on the island of Lesbos, he had been arrested and held there for two days. He had been released after being notified of a removal measure. Having reached Athens, the day after his release, he remained there for about a day, left to his own devices, until he was picked up by a non-governmental organisation. He had not yet filed an asylum application. The Court found a violation of Article 3 of the Convention, taking the view that, particularly on account of the authorities’ failure to monitor and provide for the applicant, the threshold of severity required for that Article to be engaged had been attained. It observed that the applicant had been left to his own devices after being released by the Greek authorities, basing its finding on reports about the lack of provision for unaccompanied foreign minors in Greece by the Council of Europe Commissioner for Human Rights, the Office of the United Nations High Commissioner for Refugees (UNHCR), the Greek Ombudsman and the non-governmental organisations Amnesty International and Human Rights Watch, together with the testimony of non-governmental organisations which had followed the applicant’s case on Lesbos and in Athens. It noted in particular that his accommodation and his protection more generally had been provided for solely by local non-governmental organisations. It found that on account of the conduct of the authorities, which had been indifferent towards him, the applicant must have felt extremely anxious and worried, especially from the time of his release until he was looked after in Athens by a non-governmental organisation, which indicated that when he was admitted to the accommodation centre for minors he had trouble going to sleep without leaving the light on, had difficulty speaking and was very under-nourished. (b) The present case 76. The Court notes the applicant’s young age at the material time. He was 11 years old when he arrived in France in September 2015. He was 12 when the southern zone of the Calais heath was cleared (in February 2016) and when he left France (in the week of 20 March 2016). 77. The Court further observes that, in the applicant’s submission, he settled on the Calais heath in September 2015. Moreover, his presence on the site is established by a video-recording of 21 February 2016, produced by him in support of his observations, and by the decisions of 19 and 22 February 2016 (see paragraphs 30-31 above). Further noting that the Government neither disputed the applicant’s presence on the heath nor claimed that he arrived there later or left before 20 March 2016, the Court finds that he lived there for about six months. 78. The applicant has not described in detail the material conditions of his life on that site. He merely stated that, as he was not under the care of the authorities, he lived in a “hut” in the southern zone of the heath, and that after the demolition of this hut during the clearance operations he had moved to a “makeshift shelter” in the northern zone. He also stated that he had received support from non-governmental organisations. 79. That being said, the Court finds that the Government did not dispute the applicant’s claim that he had not received any care from the authorities. This is borne out by the decision of the Youth Judge of the Boulogne-sur-Mer tribunal de grande instance of 22 February 2016 (see paragraph 31 above), and several of the documents mentioned in paragraph 39 above show that this was the case for the majority of unaccompanied foreign minors in the Calais area (see, for example, the “Follow-up opinion on the situation of migrants in Calais and its surroundings” by the CNCDH, § 95). 80. As to the living conditions on the heath, they are described by the urgent applications judge of the Conseil d’État in his decision of 23 November 2015 (see paragraph 15 above) and also by national and international bodies (paragraphs 7-13 and 39 above) and by non-governmental organisations. 81. It can be seen from those documents that the authorities only distributed 2,500 meals, once a day, whereas, according to the above-mentioned decision, 6,000 people were living on the heath in November 2015. They also show that most of those people lived in cramped conditions, in tents or makeshift shelters made of wooden boards and tarpaulins, and in very poor conditions of hygiene due to inadequate sanitation, drainage and waste collection facilities, and that they had limited access to safe drinking water and healthcare. The Défenseur des droits described the heath in particular as a “shantytown” and the living conditions of the majority of its occupants as “inhumane” (see paragraph 12 above). The urgent applications judge of the Conseil d’État, who used the term “shantytown” in his decision of 23 November 2015, found that provision for the basic needs of those concerned with regard to their hygiene and drinking water was “manifestly inadequate” and that this revealed “a deficiency of such a nature as to expose them, to a severe degree, to inhuman or degrading treatment, thus causing a serious and manifestly unlawful breach of a fundamental freedom” (see paragraph 15 above). 82. The Government indicated that, pursuant to the decision of the urgent applications judge, the heath site had been tidied up, ten additional water access points and fifty toilets had been installed, together with a roadway for emergency access and a waste collection system. The Court would observe, however, that having regard in particular to the number of people present on the heath, these measures could only bring about a relative improvement of the occupants’ living conditions (see, in particular, the above-cited “Follow-up opinion on the situation of migrants in Calais and its surroundings” by the CNCDH, § 36). The prefect’s order of 19 February 2016 for the clearance of the southern zone was indeed based on considerations relating to public health and human dignity (see paragraph 17 above). 83. Following the clearance of the southern zone many of its occupants settled in the northern zone of the heath, thus exacerbating the cramped living conditions there. The CNCDH thus reported in April 2016 that, in spite of the measures taken by the authorities “between 2,000 and 3,500 individuals continue[d] to live in the shantytown in dangerous and unhealthy makeshift shelters, in a state of total squalor”, and that “many of those makeshift installations [were] becoming permanent, in the absence of any alternative accommodation provided by the State” (document cited above, § 37). 84. In that context, unaccompanied foreign minors were, being left to their own devices, also exposed to various dangers such as the risk of physical violence, including sexual abuse (see, for example, the UNICEF report “Neither safe nor sound; investigation into unaccompanied children in northern France”; see also paragraphs 13, 55-56, 61, 63 and 69 above). 85. Accordingly, in the absence of protection by the authorities and in spite of the support he was able to find from non-governmental organisations on the heath, the applicant spent six months in an environment that was manifestly unsuited to his status as a child, characterised in particular by unhealthy, precarious and unsafe conditions. It was precisely on the grounds of the danger in which he found himself, and the fact that the danger had been exacerbated by the clearance of the southern zone of the heath, that the Youth Judge of the Boulogne-sur-Mer tribunal de grande instance ordered on 22 February 2016 that he be placed in the care of the child welfare services (see paragraph 31 above). 86. In the Court’s view, while already extremely problematic before the clearance of the southern zone, the failure to provide the applicant with care was even more so in the aftermath of that operation, owing to the demolition of the hut in which he had been living and the general deterioration of living conditions on the site that the operation had caused. The applicant’s statements on the latter point (see paragraph 32 above) are consistent in particular with the information reported by the Défenseur des droits (see paragraph 58 above), by the CNCDH (see paragraph 62 above) and by the non-governmental organisation GISTI (see paragraph 65 above). 87. The Government submitted that every effort had been made by the authorities to take charge of the applicant in accordance with the decision of 22 February 2016, but that the applicant had not turned up at the home designated to receive him. They added that neither his ad hoc guardian, nor the associations that had supported him, nor his lawyer, had taken him there. They indicated that the child welfare service had then tried unsuccessfully to trace him by contacting the association to which the State had entrusted the enumeration of unaccompanied minors. In their submission, this showed that the applicant was not seeking long-term shelter and care in France (see paragraphs 53-54 above). 88. In the Court’s view, the fact that it was necessary to wait for the Youth Judge to order the applicant’s placement before his case could actually be considered by the competent authorities raises in itself a question as to the respondent State’s compliance, in respect of the applicant, with its obligation to protect and take care of unaccompanied foreign minors under Article 3 of the Convention (see paragraph 74 above). It follows that, until that point, the competent authorities had not even identified the applicant for that purpose, even though he had been on the heath for several months and his young age should have particularly attracted their attention. 89. In this connection, it appears that, as complained of by the applicant (see paragraph 51 above) and as noted in particular by the Special Representative of the Council of Europe Secretary General on Migration and Refugees (see the “Report of the fact-finding mission on the situation of migrants and refugees in Calais and Grande-Synthe, France”, cited in paragraph 39 above), the steps taken to identify unaccompanied foreign minors on the heath were insufficient. This shortcoming explains, at least in part, the difficulty encountered by the child welfare service in tracing the applicant in order to enforce the 22 February 2016 decision. 90. With regard to the Government’s argument that the failure to comply with that decision could be attributed to the applicant’s lack of cooperation, it appears from the file that unaccompanied foreign minors on the heath did not always go along with the proposed care measures (see, for example, the recommendation of the Défenseur des droits of 20 April 2016, cited above; see also paragraph 58 above). However, the Court notes that, in the opinion of the Défenseur des droits in particular, the reluctance of unaccompanied minors on the heath could be explained by the fact that the shelter system was unsuited to their situation, in particular because of the distance of the facilities; it further observes that, according to the Défenseur des droits, their reluctance could not, in any event, justify the inaction of the authorities, which had an obligation to ensure their protection and therefore to find the best means to fulfil it, taking into account the specificities of the minors’ situation (ibid.). In the present case the applicant stated that he himself was in favour of an alternative accommodation solution. The Court would point out that he was a child of only twelve years old who, moreover, probably had only a limited knowledge of the French language. It is not therefore persuaded by the Government’s assertion that it was for the applicant himself to take the necessary steps to ensure that his protection measures were implemented. Nor does it consider that the non-governmental organisations which had provided support to the applicant on a voluntary basis, the lawyer who had represented him in the proceedings leading to the decision of 22 February 2016, and the ad hoc guardian who had been appointed on 19 February 2016, could be reproached for not having taken him to the home designated by the authorities for his placement, since this was clearly the responsibility of the State. 91. The Court is aware of the complexity of the task facing the national authorities, in particular with regard to the number of persons present on the heath at the relevant time, together with the difficulty of identifying unaccompanied minors among them and of establishing and implementing arrangements adapted to their situation when they were not always seeking protection. On the latter point, it notes the ambiguity of the applicant’s conduct: although he applied to the Youth Judge for his provisional placement, his intention was not to remain in France but to leave the country and travel to the United Kingdom. The Court further notes that the national authorities did not remain totally inactive since they took steps to enforce the decision of 22 February 2016. 92. In view of the foregoing, however, the Court is not persuaded that the authorities, which ultimately failed to implement the decision of the Youth Judge of the Boulogne-sur-Mer tribunal de grande instance of 22 February 2016 ordering the applicant’s provisional placement, did all that could reasonably be expected of them to fulfil the obligation to provide care and protection to the applicant, such obligation being imposed on the respondent State as he was an unaccompanied foreign unaccompanied minor and irregular migrant, at the age of twelve, and therefore an individual falling with the category of the most vulnerable individuals in society (see paragraph 74 above). 93. The applicant thus spent several months in the shantytown of the Calais heath, in an environment totally unsuited to his status as a child, whether in terms of safety, housing, hygiene or access to food and care, and in unacceptably precarious conditions in view of his young age. 94. The Court is of the view that these particularly serious circumstances and the failure to enforce the decision of the Youth Judge ordering measures for the applicant’s protection, when taken together, constitute a breach of the obligations imposed on the respondent State, thus attaining the threshold of severity required for Article 3 of the Convention to be engaged. It thus concludes that the applicant found himself, as a result of the failings of the French authorities, in a situation which contravened that provision and which it considers to have constituted degrading treatment. 95. Accordingly, there has been a violation of Article 3 of the Convention. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION AND Article 1 of Protocol No. 1 96. The applicant complained of the destruction of his shelter, which was his home, without sufficient notice or any offer of alternative accommodation and protection, even though he was an unaccompanied minor. He relied on Article 8 of the Convention and Article 1 of Protocol No. 1, which read as follows: Article 8 “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” Article 1 of Protocol No. 1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” 97. Having regard to the facts of the case, to the parties’ submissions and to the conclusion it has reached under Article 3 of the Convention, the Court takes the view that it has examined the main legal question raised by the present application and that it does not need to rule separately on the other complaints (see, in particular, Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014). APPLICATION OF ARTICLE 41 OF THE CONVENTION 98. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” Damage 99. The applicant claimed 29,000 euros (EUR) in respect of the pecuniary and non-pecuniary damage that he alleged to have sustained as a result of the failure to take him into care and the demolition of his shelter. 100. The Government submitted that the applicant’s claim should be rejected. They took the view, first, that the alleged pecuniary damage had not been substantiated and that the non-pecuniary damage claimed had been the result of the applicant’s own conduct, as he had eschewed the alternative accommodation offered to him. They added that, should the Court nevertheless find the pecuniary damage to be substantiated, the finding of a violation of the Convention would in itself constitute sufficient just satisfaction. 101. The Court does not discern any causal link between the violation of Article 3 that it has found and the pecuniary damage alleged; it therefore rejects this claim. However, it finds it appropriate to award the applicant EUR 15,000 in respect of non-pecuniary damage. Costs and expenses 102. The applicant also claimed EUR 1,000 for the costs and expenses incurred in the proceedings before the Court. 103. The Government noted that the applicant had failed to adduce any documents to substantiate the reality and amount of the costs that he was claiming. They inferred that no award should be made to him on this basis. 104. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, noting that the applicant did not provide any supporting documents, the Court rejects the entire claim for costs and expenses. Default interest 105. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention, finding that, on account of the failure of the French authorities to take the requisite action, the applicant had found himself in a situation tantamount to degrading treatment. In particular, the Court was not convinced that the authorities had done all that could reasonably be expected of them to fulfil the obligation of protection and care incumbent on the respondent State vis-à-vis an unaccompanied foreign minor unlawfully present on French territory, that is to say an individual belonging to the category of the most vulnerable persons in society. For several months the applicant had thus lived in the “lande de Calais” shanty town, in an environment completely unsuited to his status as a child and in a situation of insecurity rendered unacceptable by his young age. The Court therefore held that the extremely negative circumstances prevailing in the makeshift camps and the failure to enforce the court order intended to secure protection for the applicant amounted to a violation of the respondent State’s obligations. |
180 | The definition of idem | RELEVANT LEGAL FRAMEWORK DOMESTIC LAW 66. The relevant domestic law as regards the absence of an accused in criminal proceedings from the sessions of an appeal panel is set out in the case of Arps v. Croatia, no. 23444/12, §§ 12-15, 25 October 2016. 67. The relevant provisions of the Criminal Code ( Kazneni zakon, Official Gazette nos. 110/1997 with subsequent amendments), as in force at the material time, read as follows: Neglect or abuse of a child or a minor Article 213 “(1) A parent, adoptive parent, guardian or other individual who grossly neglects his or her duties to care for or raise a child or minor shall be punished by imprisonment for six months to five years. (2) The penalty referred to in paragraph 1 of this Article shall be imposed on a parent, adoptive parent, guardian or other individual who abuses a child or minor; [who] forces [the child] to perform work unsuitable for his or her age, or to work excessively, or to beg; [who], out of greed, induces [the child] to behave in a manner harmful to his or her development; or [who] puts [the child] in danger by [engaging in] dangerous activities or in some other way.” Domestic violence Article 215a “A family member who, through violence, ill-treatment or particularly contemptuous behaviour, places another family member in a humiliating position shall be sentenced to imprisonment for a term of between six months and five years.” 68. The Protection against Domestic Violence Act ( Zakon o zaštiti od nasilja u obitelji, Official Gazette no. 116/2013), inter alia, defines the minor offence of domestic violence and provides sanctions which may be imposed on those convicted of that offence. The relevant provisions read: Section 4 “Domestic violence is: - every application of physical or psychological force against a person’s integrity; - all conduct by a family member capable of causing fear of physical or psychological pain; - causing [a person to] feel scared or personally threatened, or [causing] injury to a person’s dignity; - physical assault, irrespective of whether it results in bodily injury; - verbal assaults, insults, swearing, name-calling or other forms of serious harassment; - sexual harassment; - stalking and all other forms of harassment; - unlawfully isolating [a person] or restricting a person’s freedom of movement or communication with third parties; - damaging or destroying assets or attempting to do this.” Section 18 “(1) A family member who commits [an act of] domestic violence under section 4 of this Act shall be fined between 1,000 and 10,000 Croatian kunas (HRK) for a minor offence or punished by imprisonment for up to 60 days. (2) A family member who repeats [an act of] domestic violence shall be fined at least HRK 5,000 for a minor offence or punished by imprisonment for at least 15 days. (3) An adult family member who commits [an act of] domestic violence in the presence of a child or a minor shall be fined at least HRK 6,000 for a minor offence or punished by imprisonment for at least 30 days. (4) An adult family member who repeats [an act of] domestic violence under subsection 3 of this section shall be fined at least HRK 7,000 for a minor offence or punished by imprisonment for at least 40 days. (5) When violence under subsection 3 of this section is committed to the detriment of a child or a minor, the perpetrator shall be fined at least HRK 7,000 for a minor offence or punished by imprisonment of at least 40 days.” 69. In its judgment III Kr 50/11-4 of 17 January 2013, the Supreme Court held as follows: “The convicted person is incorrect in claiming that the conditions for instituting criminal proceedings against him had not been met because he had previously been convicted for the same event in minor-offence proceedings... Contrary to what is claimed by the convicted person, it is necessary to stress that he was found guilty of a continuous criminal offence of violent behaviour in the family as defined in Article 215a of the Criminal Code, the acts of which had been performed a number of times in that he verbally attacked the victim, as well as physically in the period between 26 March 2002 and 25 September 2004, so that he would hit her with his hands all over her body and head, push her [so that] she fell over, and she was otherwise disabled and walking with crutches, and two times he hit her with a chair on her head and body. In connection with such incrimination, it is necessary to stress that violent behaviour of the convicted person has been performed throughout the criminalizing period and even outside the three instances in relation to which medical documentation has been obtained. ... ...in relation to the event which represents the very end of the continuous criminal offence and relates to 25 September 2004, medical documentation has been obtained and the convicted person was found guilty of domestic violence in minor-offence proceedings... In the Supreme Court’s opinion, the present case concerns a continuous criminal offence as defined in Article 215a of the Criminal Code, which consists of several instances of domestic violence to which the victim had been exposed almost on a daily basis, thereby putting her in a humiliating position; therefore the K. Minor Offence Court’s judgment relating to the event of 25 September 2004 by no means represents a court decision on the same matter which the criminal courts were called upon to decide in regular criminal proceedings. This is because the minor offence proceedings established the convicted person’s guilt only in relation to one single act of domestic violence committed only on 24 September 2004, whereas the remaining acts [of domestic violence] and the forms [thereof] ... are not even mentioned in the description of the minor offence, so already for that reasons this [case] cannot concern a res judicata, as wrongly argued by the convicted person...” EUROPEAN UNION LAW 70. The relevant case-law of the Court of Justice of the European Union (CJEU) has been cited in Bajčić v. Croatia, no. 67334/13, § 15, 8 October 2020. See also CJEU judgment in Joined cases C ‑ 596/16 Enzo di Puma and C ‑ 597/16 Anotnio Zecca adopted on 20 March 2018. INTERNATIONAL LAW 71. The Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (“Istanbul Convention”), which came into force in respect of Croatia on 1 October 2018, insofar as relevant, provides as follows: Article 18 § 1 “Parties shall take the necessary legislative or other measures to protect all victims from any further acts of violence.” Article 45 § 1 “Parties shall take the necessary legislative or other measures to ensure that the offences established in accordance with this Convention are punishable by effective, proportionate and dissuasive sanctions, taking into account their seriousness.” THE LAW ALLEGED VIOLATIONS OF ARTICLE 6 §§ 1 AND 3 (B) AND (C) OF THE CONVENTION 72. The applicant complained that in the proceedings before the County Court he had not had adequate time for the preparation of his defence, and could not defend himself either in person or with the assistance of a lawyer because he had been informed of the session of 16 February 2010 only four days in advance. Also, he had not been given an opportunity to attend that session. He relied on Article 6 §§ 1 and 3 (b) and (c) of the Convention, the relevant part of which reads as follows: “1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ... 3. Everyone charged with a criminal offence has the following minimum rights: ... (b) to have adequate time and facilities for the preparation of his defence; (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; ...” Admissibility 73. The Court notes that this part of the application is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible. MeritsArticle 6 § 3(b) and (c) – legal representation in the appeal proceedings and adequate time and facilities to prepare a defence Article 6 § 3(b) and (c) – legal representation in the appeal proceedings and adequate time and facilities to prepare a defence Article 6 § 3(b) and (c) – legal representation in the appeal proceedings and adequate time and facilities to prepare a defence 74. The Court considers that the applicant’s complaint under Article 6 § 3 (b) of the Convention is closely related to his complaint concerning his right to be represented by a lawyer at the appeal stage of proceedings. Consequently, the issues of whether his right to adequate time and facilities to prepare his defence and his right to be represented by a lawyer were respected need to be examined together. (a) The parties’ arguments 75. The applicant argued that, owing to the brevity of the period between his being informed of the appeal session and that session actually taking place, he had not been able to hire a lawyer and adequately prepare his defence. 76. The Government maintained that the applicant had had sufficient time and facilities to prepare his defence in the appeal proceedings, since his chosen lawyer, E.H., had received the first-instance judgment on 13 August 2009 and both the applicant and E.H. had lodged appeals against that judgment. Once the applicant had revoked the power of attorney in respect of E.H., the national courts had appointed a State-funded lawyer for the applicant and had also granted his requests to contact other lawyers. When the Supreme Court had quashed the second-instance judgment and remitted the case to the appeal court, the appeal court had had to decide on the same appeals it had already examined, that is to say the applicant’s and E.H.’s appeals lodged in August 2009. 77. The national courts had also granted the applicant’s repeated requests to contact other lawyers and had allowed three lawyers to visit him in prison. The applicant was responsible for the fact that he had not hired any other lawyer. 78. The applicant had been informed of the appeal court’s session four days in advance, and given the fact that the appeal court had had to decide on the appeals lodged in August 2009, that period could not be regarded as insufficient for him to prepare his defence. Moreover, when the applicant had asked for the appeal court’s session to be adjourned for seven days, he had not explained what the purpose of that adjournment was. (b) The Court’s assessment (i) General principles 79. The right to a fair trial under Article 6 § 1 is an unqualified right. However, what constitutes a fair trial cannot be the subject of a single unvarying rule, but must depend on the circumstances of the particular case. The Court’s primary concern under Article 6 § 1 is to evaluate the overall fairness of the criminal proceedings (see, among many other authorities, Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, § 250, 13 September 2016). 80. Compliance with the requirements of a fair trial must be examined in each case, having regard to the development of the proceedings as a whole, and not on the basis of an isolated consideration of one particular aspect or one particular incident, although it cannot be excluded that a specific factor may be so decisive as to enable the fairness of the trial to be assessed at an earlier stage in the proceedings. In evaluating the overall fairness of the proceedings, the Court will take into account, if appropriate, the minimum rights listed in Article 6 § 3, which exemplify the requirements of a fair trial in respect of typical procedural situations which arise in criminal cases. They can therefore be viewed as specific aspects of the concept of a fair trial in criminal proceedings in Article 6 § 1. However, those minimum rights are not aims in themselves: their intrinsic aim is always to contribute to ensuring the fairness of the criminal proceedings as a whole (ibid., § 251). 81. Article 6 § 3 ( b) guarantees the accused “adequate time and facilities for the preparation of his defence”, and therefore implies that the substantive defence activity on his behalf may comprise everything which is “necessary” to prepare the main trial. The accused must have the opportunity to organise his defence in an appropriate way and without restriction as to the ability to put all relevant defence arguments before the trial court and thus to influence the outcome of the proceedings (see Mayzit v. Russia, no. 63378/00, § 78, 20 January 2005; Moiseyev v. Russia, no. 62936/00, § 220, 9 October 2008; Gregačević v. Croatia, no. 58331/09, § 51, 10 July 2012; and Chorniy v. Ukraine, no. 35227/06, § 37, 16 May 2013). 82. When assessing whether the accused had adequate time for the preparation of his defence, particular regard has to be had to the nature of the proceedings, as well as the complexity of the case and the stage of the proceedings (see Gregačević, cited above, § 51, and Albert and Le Compte v. Belgium, 10 February 1983, § 41, Series A no. 58). In this connection, the Court notes that the guarantees of Article 6 § 3 (b) go beyond trials, and extend to all stages of court proceedings (see D.M.T. and D.K.I. v. Bulgaria, no. 29476/06, § 81, 24 July 2012, and Chorniy, cited above, § 38). 83. As regards the right to a lawyer, the Court reiterates that the right of everyone charged with a criminal offence to be effectively defended by a lawyer, assigned officially if need be, as guaranteed by Article 6 § 3 (c), is one of the fundamental features of a fair trial (see Salduz v. Turkey [GC], no. 36391/02, § 51, ECHR 2008; Dvorski v. Croatia [GC], no. 25703/11, § 76, ECHR 2015; and Simeonovi v. Bulgaria [GC], no. 21980/04, § 112, 12 May 2017 (extracts)). However, assigning counsel does not in itself ensure the effectiveness of the assistance counsel may provide to his client. Nevertheless, a State cannot be held responsible for every shortcoming on the part of a lawyer appointed for legal-aid purposes. It follows from the independence of the legal profession from the State that the conduct of the defence is essentially a matter between a defendant and his counsel, whether appointed under a legal-aid scheme or privately financed. The competent national authorities are required under Article 6 § 3 (c) to intervene only if a failure by legal-aid counsel to provide effective legal assistance is manifest or sufficiently brought to their attention in another way (see Czekalla v. Portugal, no. 38830/97, § 60, ECHR 2002-VIII, and Orlov v. Russia, no. 29652/04, § 108, 21 June 2011). (ii) Application of these principles to the present case 84. The applicant’s complaints concern the appeal stage of the proceedings and refer to his alleged inability to prepare his defence and hire a lawyer in the short period between his being informed of the appeal court’s session and the session actually taking place. The Court notes that the first-instance judgment was issued on 14 July 2009 (see paragraph 33 above) and it was served on E.H., the defence counsel chosen by the applicant (contrast with Chorniy, cited above, § 41), on 13 August 2009. Both the applicant and E.H. lodged appeals (see paragraphs 36 and 40 above). The applicant also revoked his power of attorney in respect of E.H. Subsequently, he made several requests to contact other lawyers. 85. The Court notes that the national courts appointed a State-funded lawyer, S.A., for the applicant on 9 September 2009 (see paragraph 42 above), after the applicant had revoked the power of attorney in respect of E.H. The applicant complained that he did not trust S.A. and asked the court to allow him to contact other lawyers (see paragraph 43 above). His request was granted – he contacted several other lawyers and three lawyers visited him in prison (see paragraphs 44, 47 and 48 above). However, the applicant did not hire another lawyer. 86. On 2 November 2009 the appeal court dismissed the appeals lodged by the applicant and E.H. and upheld the first-instance judgment (see paragraph 51 above). On 20 January 2010 the Supreme Court quashed the appeal court’s judgment and remitted the case. It is to be stressed that the appeal court was to decide on the appeals lodged by the applicant and E.H. on 19 and 31 August 2009 respectively, and that at the time when the Supreme Court remitted the case to the appeal court the applicant was not allowed to lodge further appeals or supplement his previous appeals. There is no indication, and the applicant has never made any allegations to that effect, that he did not have sufficient time and facilities to prepare his appeal, or that he did not have the services of a lawyer in connection with the appeal, or that he was hindered in preparing his appeal in any other respect (compare Chorniy, cited above, § 40). 87. The Court would also stress that during the entire trial before the first-instance court, the applicant was represented by E.H., a lawyer of his own choosing, and had ample time and opportunity to confer with that lawyer and prepare his defence (contrast Falcão dos Santos v. Portugal, no. 50002/08, § 44, 3 July 2012). There is also no indication that the applicant was limited in terms of how many meetings he had with his chosen lawyer E.H. at any stage of the proceedings or how long those meetings were (compare Lambin v. Russia, no. 12668/08, § 45, 21 November 2017). 88. Therefore, at the stage when the Supreme Court remitted the case to the appeal court for fresh examination of the applicant’s and E.H.’s appeals (see paragraph 54 above), the applicant had already benefitted from the services of his chosen lawyer and had had sufficient time to prepare his defence. In this connection, the Court notes that the applicant, with the assistance of his lawyer, put forward his defence before the investigating judge (see paragraph 19 above), at the trial before the first-instance court (see paragraph 30 above), and on three occasions submitted an additional written defence arguments (see paragraphs 25, 27 and 28 above). The national courts gave the applicant sufficient opportunity to hire another lawyer, but he failed to do so. 89. In his oral and written defence, as well as in his appeals, the applicant analysed the case in detail and referred extensively to all the main items of evidence, including expert opinions and witness testimonies (see paragraphs 19, 25, 27-30 and 36 above; also compare Lambin, cited above, § 44). 90. Given the particular circumstances of the case, the Court considers that the brevity of the period between the applicant being informed of the appeal court session and that session actually taking place did not restrict his right to adequate time and facilities to prepare his defence or his right to be legally represented in the criminal proceedings against him to such an extent that it could be said that he did not have the benefit of a fair trial. 91. There has accordingly been no violation of Article 6 §§ 1 and 3 (b) and (c) of the Convention in that respect. Article 6 § 3 (c) – the applicant’s absence from the session before the appeal court (a) The parties’ arguments 92. The applicant argued that his absence from the appeal court’s session held on 16 February 2010 was in breach of his right to defend himself in person. 93. The Government argued that under the relevant domestic law the appellate court had had the discretion to decide whether to allow the defendant to attend the session of the appeal panel. Furthermore, since the prosecution had not appealed against the first-instance judgment and had not been summoned to the session of the appeal panel, the Government were of the opinion that the applicant had not been placed in a disadvantageous position vis-à-vis the prosecution. Moreover, the applicant’s appeal had been very detailed and had mainly concerned the assessment of the facts. Given all these circumstances, the County Court had had no reason to hear him in person. (b) The Court’s assessment 94. The Court notes that it has already found a violation of Article 6 §§ 1 and 3 (c) of the Convention in cases against Croatia raising a similar issue to that in the present case (see Zahirović v. Croatia, no. 58590/11, §§ 58-64, 25 April 2013; Lonić v. Croatia, no. 8067/12, §§ 94-102, 4 December 2014; and Arps v. Croatia, no. 23444/12, §§ 24-29, 25 October 2016). 95. In the above-cited cases, the Court addressed the same arguments as those put forward by the Government in the present case. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. 96. There has accordingly been a violation of Article 6 §§ 1 and 3 (c) of the Convention. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL No. 7 TO THE CONVENTION 97. The applicant complained that he had been tried twice for the same offence. He relied on Article 4 of Protocol No. 7 to the Convention, which reads as follows: “1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State. 2. The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case. 3. No derogation from this Article shall be made under Article 15 of the Convention.” Admissibility 98. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible. MeritsThe parties’ arguments The parties’ arguments The parties’ arguments 99. The applicant maintained that he had been punished twice for the same offence by two judgments of the Zagreb Minor Offences Court (see paragraphs 9 and 13 above) and the judgment of the Municipal Court of 14 July 2009 (see paragraph 33 above). He argued that the minor-offence proceedings and the proceedings on indictment had had the same purpose, because the minor offence under section 4 of the Protection against Domestic Violence Act and the criminal offences under Article 215a of the Criminal Code both concerned violent behaviour within the family covering the same forms of violence and harassment. The purpose of both offences was to establish that violent behaviour was unacceptable, unlawful and banned. 100. The applicant also contended that the evidence had been presented and assessed separately in each set of proceedings, and that the sanctions imposed on him in the minor-offence proceedings had not been deducted from the penalty ultimately imposed on him in the proceedings on indictment. 101. The Government concentrated their arguments on the applicant’s conviction in the minor-offence proceedings of 17 November 2008 (see paragraph 9 above). They maintained that his conviction in the proceedings on indictment for four counts of domestic violence and one count of child neglect and abuse over a period of almost three years (from 2005 to 3 November 2008) could not be seen as being the same as his conviction in minor-offence proceedings for one count of domestic violence in respect of the events of 3 and 4 November 2008. In the proceedings on indictment, the applicant had been convicted of numerous violent acts consisting of insults, threats and physical assaults committed over a longer period of time in respect of four members of his family, whereas in the minor-offence proceedings he had been convicted of a single offence committed in respect of two members of his family over two consecutive days. 102. The Government stressed that the factual background of the event of 3 November 2008 in respect of which the applicant had been convicted in the proceedings on indictment was not the same as the factual background in respect of which he had been convicted in the minor-offence proceedings. In the latter scenario, the applicant had been convicted because on 3 November 2008, after verbally insulting his former spouse and his daughter M.G., he had slapped his former spouse several times on her left cheek and ear and thus caused her less serious bodily injury (contusions to the head and bleeding from the ear). The applicant would have been convicted in the proceedings on indictment, irrespective of the events of 3 November 2008 –the verbal assault on his daughter M.G. and the verbal and physical assault on his former spouse Mi.G. – because it was not necessary to specify each and every verbal or physical assault on a family member to prove the existence of the criminal offence of domestic violence. 103. The Government contended that the two sets of proceedings had been closely related in nature and time and had amounted to a single complementary response by the State to the applicant’s unlawful conduct. The purpose of the minor-offence proceedings had been to punish each incident separately, whereas the purpose of the criminal proceedings on indictment had been to protect family members from the violence to which they had been exposed over a longer period. 104. The Government pointed out that the same documentary evidence had been used in both sets of proceedings, whereas the trial court in the proceedings on indictment had been obliged to hear all witnesses in person, and could not use the witness statements which had been given in the minor-offence proceedings. Lastly, the applicant’s sentence from the minor ‑ offence proceedings had been deducted from his sentence in the proceedings on indictment. The Court’s assessment (a) Whether all the proceedings concerned were criminal in nature 105. In comparable cases against Croatia involving minor offences, the Court has held, on the basis of the “ Engel criteria” (see Engel and Others v. the Netherlands, 8 June 1976, Series A no. 22), that minor-offence proceedings were “criminal” in nature for the purposes of Article 4 of Protocol No. 7 (see Bajčić v. Croatia, no. 67334/13, §§ 27-28, 8 October 2020; and, in the context of an Article 6 complaint, Marčan v. Croatia, no. 40820/12, § 33, 10 July 2014). 106. Taking into consideration the nature of the offence in question, together with the severity of the penalty, the Court sees no reason to depart from the conclusion reached in those previous cases and holds that both sets of proceedings in the present case concerned a “criminal” matter within the autonomous meaning of Article 4 of Protocol No. 7. (b) Whether the offences for which the applicant was prosecuted were the same ( idem ) 107. The notion of the “same offence” – the idem element of the ne bis in idem principle in Article 4 of Protocol No. 7 – was clarified in Sergey Zolotukhin v. Russia ([GC], no. 14939/03, §§ 78-84, ECHR 2009). Following the approach adopted in that judgment, it is clear that the determination as to whether the offences in question were the same ( idem ) depends on a facts-based assessment (ibid., § 84), rather than, for example, a formal assessment consisting in comparing the “essential elements” of the offences. The prohibition in Article 4 of Protocol No. 7 to the Convention concerns the prosecution or trial of a second “offence” in so far as the latter arises from identical facts or facts which are substantially the same (ibid., § 82). In the Court’s view, statements of fact concerning both the offence for which the applicant has already been tried and the offence of which he or she stands accused are an appropriate starting-point for its determination of the issue whether the facts in both proceedings were identical or substantially the same (see, in this connection, Sergey Zolotukhin, cited above, § 83). The Court’s inquiry should therefore focus on those facts which constitute a set of concrete factual circumstances involving the same defendant and inextricably linked together in time and space, the existence of which must be demonstrated in order to secure a conviction or institute criminal proceedings (ibid., § 84). 108. In the present case, the applicant was first convicted in minor-offence proceedings in respect of two separate incidents – by judgments of 16 January 2008 in respect of an incident which occurred on 10 January 2008 (see paragraph 9 above), and then by the judgment of 17 November 2008 for the incident of 3 November 2008 (see paragraph 13 above). 109. Subsequently, in the proceedings on indictment, the applicant was charged with and, on 14 July 2009 found guilty of, four counts of domestic violence committed against his family members in the period between February 2005 and November 2008. The Court notes that, while the applicant’s conviction in the proceedings on indictment did not expressly refer to any specific event of 10 January 2008, it clearly encompassed the period between February 2005 and November 2008, thereby implicitly covering all the incidents that might have happened during that time. 110. On the other hand, the criminal court judgment expressly referred to the event of 3 November 2008 in respect of which the applicant had been found guilty in the minor-offence proceedings on 17 November 2008 (see paragraph 13 above). Both the decision issued in the minor-offence proceedings of 17 November 2008 and the judgment issued in the proceedings on indictment of 14 July 2009 refer to the same words spoken by the applicant to his daughter and his former spouse, and to the applicant’s physical assault on the latter. In both decisions, those events are described in almost the same terms, and they clearly refer to the same events of 3 November 2008. 111. At the same time, the Court notes that the indictment in the criminal proceedings contained a number of additional facts not encompassed by the decision in the impugned set of minor-offence proceedings, namely acts of domestic violence towards the applicant’s younger daughter Z.G. and his son H.G., as well as, most notably, that the applicant’s violent behaviour occurred over a longer period of time (see paragraph 23 above). The proceedings on indictment therefore concerned a criminal offence of domestic violence as defined in Article 215a of the Criminal Code (see paragraph 69 above). In fact, the criminal conviction enumerated several examples of the applicant’s violent behaviour towards his family members and expressly stated that such conduct culminated in the incident of 3 November 2008 (see paragraph 33 above). It transpires that the inclusion of the incident of 3 November 2008 served to show only one of the instances – notably, the most violent one – of the applicant’s reprehensible behaviour which had persisted over a period of some three years and had caused his family members fear, anxiety and risk for their life (see paragraph 33 above). In other words, the domestic courts sought to show that the applicant’s conduct, which had been sanctioned on a number of occasions in minor-offence proceedings, eventually reached the threshold of seriousness so as to be considered and punished under criminal law. 112. The Court notes that the facts for which the applicant had already been convicted in the two impugned sets of minor-offence proceedings formed an integral part of the subsequent proceedings on indictment. The Court thus accepts that the facts in the subsequent criminal proceedings had in part been identical to the facts in the two sets of minor-offence proceedings complained of. In view of this, any possible arbitrary treatment by the judicial system in breach of the ne bis in idem principle in those proceedings must be eliminated. The Court will therefore proceed to examine whether there had been a duplication ( bis ) of the proceedings in breach of Article 4 of Protocol No. 7. (c) Whether there was duplication of proceedings ( bis ) 113. As the Grand Chamber explained in A and B v. Norway ([GC], nos. 24130/11 and 29758/11, § 130, 15 November 2016), Article 4 of Protocol No. 7 does not preclude the conduct of dual proceedings, provided that certain conditions are fulfilled. In particular, for the Court to be satisfied that there is no duplication of trial or punishment ( bis ) as proscribed by Article 4 of Protocol No. 7, the respondent State must demonstrate convincingly that the dual proceedings in question were “sufficiently closely connected in substance and in time”. In other words, it must be shown that they were combined in an integrated manner so as to form a coherent whole. This implies not only that the purposes pursued and the means used to achieve them should in essence be complementary and linked in time, but also that the possible consequences of organising the legal treatment of the conduct concerned in such a manner should be proportionate and foreseeable for the persons affected (ibid., § 130). As regards the conditions to be satisfied in order for dual criminal and administrative proceedings to be regarded as sufficiently connected in substance and in time and thus compatible with the bis criterion in Article 4 of Protocol No. 7, the material factors for determining whether there was a sufficiently close connection in substance include: – whether the different proceedings pursue complementary purposes and thus addressed, not only in abstracto but also in concreto, different aspects of the social misconduct involved; – whether the duality of proceedings concerned was a foreseeable consequence, both in law and in practice, of the same impugned conduct ( idem ); – whether the relevant sets of proceedings were conducted in such a manner as to avoid as far as possible any additional disadvantages resulting from duplication of proceedings and in particular duplication in the collection as well as the assessment of the evidence, notably through adequate interaction between the various competent authorities to ensure that the establishment of the facts in one set of proceedings is replicated in the other; – and, above all, whether the sanction imposed in the proceedings which became final first was taken into account in those which became final last, so as to prevent the individual concerned from being in the end made to bear an excessive burden; this latter risk is least likely to be present where there is in place an offsetting mechanism designed to ensure that the overall amount of any penalties imposed is proportionate (ibid., §§ 131-32). 114. At the outset the Court reiterates that the States are under a positive obligation under Articles 3 and 8 of the Convention to provide and maintain an adequate legal framework affording protection against acts of domestic violence (see Ž.B. v. Croatia, no. 47666/13, §§ 47 and 49, 11 July 2017). With regard to the adequacy of the legal framework for the protection from domestic violence, the Court notes that there is a common understanding in the relevant international materials that comprehensive legal and other measures are necessary to provide victims of domestic violence with effective protection (see, for example, paragraph 71 above). These measures include, in particular, the criminalisation of acts of violence within the family by providing effective, proportionate and dissuasive sanctions (ibid., § 51). 115. The Court further notes that the Contracting States have different approaches to the criminalisation of domestic violence in their legal systems. It has already held that the legislative solutions provided for under the Criminal Code and the Minor Offences Act applicable at the relevant time in Croatia did not appear to be contrary to the relevant international standards (see Ž.B., cited above, §§ 38-39 and 56). The Court further reiterates that it was for the domestic authorities to assess the findings of fact and to decide, in accordance with the domestic law as interpreted by the national courts, how the applicant’s conduct ought to be classified and prosecuted (see Rohlena v. the Czech Republic, [GC], no. 59552/08, § 55, ECHR 2015). 116. In that connection the Court observes that domestic violence is rarely a one-off incident; it usually encompasses cumulative and interlinked physical, psychological, sexual, emotional, verbal and financial abuse of a close family member or partner transcending circumstances of an individual case (see Volodina v. Russia, no. 41261/17, § 71, 9 July 2019). The recurrence of successive episodes of violence within personal relationships or closed circuits represents the particular context and dynamics of domestic violence (see ibid., § 86; and Kurt v. Austria [GC], no. 62903/15, § 164, 15 June 2021). Thus the Court has already recognised that domestic violence could be understood as a particular form of a continuous offence characterised by an ongoing pattern of behaviour (see Rohlena, cited above, § 72; and Valiulienė v. Lithuania, no. 33234/07, § 68, 26 March 2013) in which each individual incident forms a building block of a wider pattern. 117. In view of the above, the Court notes that the Croatian legislature at the material time opted to regulate the socially undesirable conduct of violent behaviour towards family members as an integrated dual process. One single act of domestic violence, which did not amount to some other criminal offence punishable under the Criminal Code, was to be sanctioned as a minor offence of domestic violence. Such a minor offence was predominantly incident-focused and covered a wider range of behaviours outside the boundaries of traditional criminal law. Where there was a pattern of such behaviour, the Criminal Code at the material time provided an additional option of bringing charges for the criminal offence of domestic violence as defined in Article 215a of the Criminal Code. The Supreme Court of Croatia has interpreted Article 215a of the Criminal Code, as in force at the material time, in similar circumstances to the present case, as a continuous offence seeking to address repeated and continuous behaviour in relationships (see paragraph 69 above; see also Rohlena, cited above, § 72). 118. The Court notes that the purpose of the minor-offence proceedings was to provide a prompt reaction to a particular incident of domestic violence that in itself did not amount to any criminal offence under the Criminal Code in order to timely and effectively prevent further escalation of violence within the family and to protect the victim. This is what has been done in the applicant’s case on a number of separate occasions (see paragraphs 6, 7, 8, 9 and 13 above). Once the applicant’s unlawful behaviour reached a certain level of severity, the proceedings on indictment were initiated against him, aimed at addressing an ongoing situation of violence in a comprehensive manner (see, mutatis mutandis, A. v. Croatia, no. 55164/08, § 76, 14 October 2010). The individual incidents sanctioned in two sets of minor-offence proceedings complained of, taken together with other incidents, demonstrated a pattern of behaviour and contributed to the assessment of the seriousness of the applicant’s criminal conduct and only in their entirety did they reflect the cumulative impact on his victims. In these circumstances the Court has no cause to call into question the reasons for such partial duplication of the proceedings, which pursued the general interest of promptly and adequately reacting to domestic violence, that has particularly damaging effects on the victim, the family and society as a whole by gradually intensifying the State’s response. The Court notes that such dual proceedings represented complementary response to socially offensive conducts of domestic violence (compare and contrast Nodet v. France, no. 47342/14, § 48, 6 June 2019). 119. The Court would further stress that duplication of proceedings and penalties may be allowed only under conditions provided for and exhaustively defined by clear and precise rules allowing individuals to predict which acts or omissions were liable to be subject to such a duplication of proceedings and penalties, thereby ensuring that the right guaranteed by Article 4 of Protocol No. 7 is not called into question as such and legal certainty is preserved. As regards the question of whether duality of the proceedings had been foreseeable for the applicant, the Court notes that, having behaved violently towards close family members on a number of occasions, the applicant should have been aware that his conduct could have entailed consequences such as the institution of minor-offence proceedings for a particular individual incident under the Protection against Domestic Violence Act and criminal proceedings for continuous and repeated behaviour of domestic violence criminalised under the Criminal Code. 120. As to the manner of conducting the proceedings, the Court observes that the criminal court took note of all the previous minor-offence judgments against the applicant (see paragraph 33 above) and used certain documentary evidence from those proceedings (for example, the same record of examination of blood alcohol dated 4 November 2008; see paragraphs 13 and 33 above). The fact that the criminal court decided again to hear certain witnesses, such as Mi.G. and M.G. at the trial may be regarded as an inherent feature of proceedings on indictment and a requirement safeguarding the rights of the accused under Article 6 of the Convention. The Court therefore concludes that the interaction and coordination between the two courts was adequate and that the two sets of proceedings formed a coherent whole. (see, a contrario, Kapetanios and Others v. Greece, nos. 3453/12 and 2 others, §§ 65-74, 30 April 2015, where the applicants had first been acquitted in criminal proceedings, and later on received severe administrative fines for the same conduct). Consequently, the applicant has not suffered a disadvantage associated with the duplication of proceedings, beyond what was strictly necessary. 121. As regards the sanctions imposed, the Court firstly notes that each of the applicant’s minor-offence convictions took into account the penalty imposed on him in the previous minor-offence proceedings (see paragraphs 7, 9 and 13 above). Subsequently, the criminal court expressly acknowledged that the applicant had already been punished in five sets of minor offence proceedings. It also deducted from his sentence the period which the applicant had spent in detention on the basis of the two minor ‑ offence convictions complained of, dated 10 January 2008 and 17 November 2008 (see paragraph 13 above). Consequently the domestic courts applied the principle of deduction and ensured that the overall amount of penalties imposed on the applicant was proportionate to the seriousness of the offence concerned (compare A and B, cited above, § 144; and contrast Glantz v. Finland, no. 37394/11, § 61, 20 May 2014, and Nykänen v. Finland, no. 11828/11, § 51, 20 May 2014). It cannot therefore be said that the applicant was made to bear an excessive burden (see the relevant criteria set out in A and B v. Norway, cited at paragraph 113 above). 122. Finally, turning to the connection in time between the various sets of proceedings, the Court notes that the time element in the specific context of domestic violence bearing in mind its specific dynamics (see paragraph 116 above) takes on a particular meaning. What is important in this context is for the domestic criminal-law system to effectively deal with instances of domestic violence, individually and in their aggregate, by producing adequate deterrent effects capable of ensuring the effective prevention of unlawful acts (see, for example, Bălşan v. Romania, no. 49645/09, §§ 71 and 87, 23 May 2017; see also paragraph 71 above). In the present case, as already stated, the authorities intervened, when informed, each time there had been an isolated incident of domestic violence in the family in order to provide immediate relief to its victims (see paragraphs 6, 7, 8, 9 and 13 above). After a number of incidents occurring relatively close together in time, namely over a period of some three years, reached a certain degree of severity and “culminated” (as the domestic criminal court stated; see paragraph 33 above) in the event of 3 November 2008, the authorities initiated the last set of minor-offence proceedings, and, about a month thereafter, the proceedings on indictment for the continuous offence of domestic violence under Article 215a of the Criminal Code (see paragraphs 11 and 17 above, see also Rohlena, cited above, §§ 20, 33, 61 and 72). In fact, the criminal investigation started on 3 December 2009, after the Zagreb Minor Offence Court had found the applicant guilty of domestic violence in respect of the last incident (see paragraph 13 above) and he was indicted on 26 January 2009, two days before the judgment in the minor offence proceedings had become final (see paragraphs 17 and 23 above). Any disadvantage that might have ensued for the applicant from conducting these two proceedings in parallel for such a short period of time was thus negligible. The criminal proceedings thereafter continued for eight months at first instance and another two and half years on appeal and before the Constitutional Court. Thus, the Court is satisfied that the various proceedings were sufficiently connected in time so that the subsequent institution of criminal proceedings could not be seen as abusive (see, mutatis mutandis, A and B v. Norway, cited above, § 151; and contrast Johannesson and Others v. Iceland, no. 22007/11, § 54, 18 May 2017; and Kapetanios, cited above, § 67). 123. In conclusion, in the Court’s opinion, the aims of punishment, whereby different aspects of the same conduct are addressed, ought to be considered as a whole and have in the present case been realised through two foreseeable complementary types of proceedings, which were sufficiently connected in substance and in time, as required by the Court’s case-law, to be considered to form part of an integral scheme of sanctions under Croatian law for offences of domestic violence. There was an adequate level of interaction between the courts in those proceedings, and the punishments imposed, taken together, did not make the applicant bear an excessive burden, but were proportionate to the seriousness of the offence. In view of the foregoing, the Court finds no abuse of the State’s right to impose a punishment ( jus puniendi ), nor can it conclude that the applicant suffered any disproportionate prejudice resulting from the duplication of proceedings and penalties when criminal proceedings for a continuous offence of domestic violence were conducted following five previous convictions in the minor-offence proceedings for individual acts which formed an integral part of the pattern of the applicant’s behaviour (see, a contrario, Kapetanios and Others, cited above, §§ 65-74; see also the relevant CJEU case-law cited in paragraph 70 above). Rather, those proceedings and penalties formed a coherent and proportionate whole, which enabled punishing both the individual acts committed by the applicant and his pattern of behaviour in an effective, proportionate and dissuasive manner (see, mutatis mutandis, A and B v. Norway, cited above, §§ 112, 130 and 147; and Bajčić, cited above, § 46). 124. It follows that there has been no violation of Article 4 of Protocol No. 7 to the Convention. APPLICATION OF ARTICLE 41 OF THE CONVENTION 125. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” Damage 126. The claimed 856,000 Croatian kunas (HRK; approximately 114,130 euros (EUR)) in respect of pecuniary damage on account of his loss of salary during the period when he had been detained and serving his prison term, loss of profit and not maintaining his house. He also claimed compensation for non-pecuniary damage in the amount of HRK 700,000 (approximately EUR 93,300). 127. The Government deemed these claims excessive, unfounded and unsubstantiated. 128. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it finds that the applicants must have suffered non-pecuniary damage as a result of the violation of Article 6 §§ 1 and 3 (c) of the Convention found, which cannot be compensated for solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards him EUR 1,500 under this head, plus any tax that may be chargeable to him. Costs and expenses 129. The applicant also claimed HRK 10,000 (approximately EUR 1,360) in respect of costs and expenses incurred before the Court. 130. The Government deemed that claim excessive, unfounded and unsubstantiated. 131. The Court observes that the applicant failed to comply with the requirements set out in Rule 60 § 2 of the Rules of Court in that he did not submit itemised particulars of his claim for costs and expenses or any relevant supporting documents, even though he was invited to do so. In these circumstances, the Court makes no award under this head (Rule 60 § 3). Default interest 132. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been no violation of Article 4 of Protocol No. 7 in respect of the applicant. Noting, in particular, that the proceedings and penalties against the applicant were sufficiently connected in substance and in time and formed a coherent and proportionate whole, it found that the legal system in Croatia had allowed the punishment both of the individual acts as well as of the applicant’s pattern of behaviour in an effective, proportionate and dissuasive manner. |
8 | Exclusion from an official witness protection programme | II. RELEVANT DOMESTIC LAW 20. Act no. LXXXV of 2001 on the Protection Programme for Participants in Criminal Proceedings and Collaborators of Justice (“the Protection Act 2001”) provides as follows: Section 1 “For the purposes of this Act, the term: 1. “Protection Programme” means organised protection that cannot be secured within the framework of personal protection, which is granted to a witness, an aggrieved party, a defendant, a relative of the above persons or to any other person under threat on account of the person concerned, a) provided by the police under a civil law agreement concluded with the person under threat, and b) in the course of which the application of special measures (section 16) and – in order to help the social integration of the person concerned – mental, social, economic, human and legal support is needed; 2. “Agreement” means a civil-law agreement between the police and the person under threat on the latter’s enrolling in the Protection Programme, on the cooperation to be carried out under the Programme, and on the rights and obligations of the participants in the Protection Programme; 3. “Personal protection” means measures carried out, in pursuit of a separate decree..., by the police ... in order to secure personal protection for the participants in criminal proceedings and the officials of the authority in charge ...;” Section 7 “(4) To settle a dispute emanating from the agreement, the parties shall conduct conciliatory negotiations. If the parties are unable to settle the dispute in three days, either party may seek a judicial ruling. The Budapest High Court has exclusive competence to deal with such disputes and adjudicates them in non-contentious proceedings. Where appropriate, the court shall hear the parties in person.” Section 16 “(1) In order to prevent an unlawful act against the life, bodily integrity or personal liberty of the person concerned, the Scheme may apply the following special protection measures: a) placement (moving) of the person concerned in a safe place by changing his domicile or place of residence or by relocating a detainee covered by the Programme from the penitentiary institution in which he is placed into another one; b) granting personal protection for the person concerned; c) ordering that the data of the person concerned, stored in official registers, no longer be accessible and that any request for access to such data be signalled; d) change of name; e) change of identity; f) participation in international cooperation.” ii. ensure that all the necessary publicity for these principles and measures is distributed to all interested bodies, such as judicial organs, investigating and prosecuting authorities, bar associations, and relevant social institutions. Appendix to Recommendation Rec(2005)9 THE LAW I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 22. The applicants complained that their exclusion from the Witness Protection Scheme entailed the risk of the mafia making an attempt on their lives. The Court considers that this issue falls to be examined under Article 2 of the Convention which provides as relevant: “1. Everyone’s right to life shall be protected by law. ...” 23. The Government contested that argument. A. Admissibility 24. The Government submitted that the applicants had not exhausted domestic remedies, since they had not availed themselves of the judicial procedure under section 7(4) of the Protection Act 2001, or else of a tort action, claiming a breach of the agreement by the authorities. The applicants contested these views. The Court notes that section 7(4) is reserved for adjudicating disputes emanating from the agreement (see section 20 above), whereas the present application concerns the authorities’ decision to exclude the applicants altogether from the Scheme. For the Court, it is hardly conceivable that the unilateral termination by the authorities of this legal set-up falls into the category of ‘disputes emanating from the agreement’. However, even assuming so, the Court finds that the Government have not demonstrated in any manner how such a procedure would have effectively protected the applicants from the threats allegedly flowing from the removal of their cover identities. It is even less the case in respect of a tort action, which evidently would have taken time and resulted most likely in pecuniary compensation, if any. In sum, the Court is not persuaded that the legal avenues suggested by the Government represent effective remedies in the circumstances. It follows that the application cannot be rejected for non-exhaustion of domestic remedies. The Court further notes that, with regard to Ms H.H. and her children, this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 25. Concerning Mr R.R., the Court would observe that when he was excluded from the Scheme, his position was altered only to the extent that he was transferred to the strict-regime section of S. Prison (see paragraph 18 above). In the absence of any elements pointing to risks which Mr R.R. is running in that institution, the Court finds that this part of the application is unsubstantiated and must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention. The Court would stress that this conclusion is based on the first applicant’s present situation, that is, his incarceration under strict regime conditions at S. Prison, and does not exclude that any change in that situation which might expose the applicant to a risk might raise an issue under the Convention. B. Merits 26. The applicants submitted that their exclusion from the Scheme entailed the risk that criminal elements might take vengeance on them for the first applicant having been a collaborator of justice. In their view, the steps taken by the authorities after the termination of the programme, such as providing Ms H.H. with an emergency phone number and scarce visits by police officers provided no security whatsoever. The level of threat had never dropped since most of the persons representing risk to the family are still at large. 27. The Government specified that the applicants’ enrolment in the Scheme had been terminated not because of the elimination of threats, but because of the first applicant’s breaches of the programme’s rules. In any case, the level of threat had dropped since certain persons representing a potential threat to the applicants had been apprehended and sentenced to imprisonment in the same proceedings as the first applicant, that is, finally on 6 October 2010 (see paragraph 13 above). Subsequently, the authorities had carried out a further enquiry into the threats feared by the applicants but found no evidence pointing to real risks. To counter the remaining risks, if any, the authorities had nevertheless introduced personal protection measures for the family from the moment of terminating their enrolment. 28. The Court notes that the first sentence of Article 2 § 1 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see L.C.B. v. the United Kingdom, 9 June 1998, § 36, Reports of Judgments and Decisions 1998-III). The State’s obligation in this respect extends beyond its primary duty to secure the right to life by putting in place effective criminal-law provisions to deter the commission of offences against the person backed up by law-enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions. Article 2 of the Convention may also imply in certain well-defined circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual. 29. For the Court, such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. In the opinion of the Court where there is an allegation that the authorities have violated their positive obligation to protect the right to life in the context of their above-mentioned duty to prevent and suppress offences against the person, it must be established to its satisfaction that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. For the Court, and having regard to the nature of the right protected by Article 2, a right fundamental in the scheme of the Convention, it is sufficient for an applicant to show that the authorities did not do all that could be reasonably expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge. This is a question which can only be answered in the light of all the circumstances of any particular case (see Osman v. the United Kingdom, 28 October 1998, §§ 115-116, Reports 1998–VIII). 30. In the instant case, the Court notes that the applicants were enrolled in the Witness Protection Scheme shortly after the first applicant had become available to the authorities as a collaborator of justice. The parties’ submissions, rather vague, about the nature of the threats prevailing at that time do not enable the Court to assess whether they represented a real and immediate risk to the applicants’ lives. However, it notes that, in applying the rules of witness protection to the applicants’ case, the authorities implicitly accepted that there was a serious risk to their life, limb or personal liberty within the meaning of section 16 of the Protection Act 2011 (see paragraph 20 above). Given the well-known nature of mafia conflicts and the applicants’ unrefuted allegations about them being wanted by criminal circles – an assertion not implausible in the light of the first applicant’s having become a collaborator of justice enabling the unravelling of internationally organised criminal activities – the Court accepts that there was indeed a serious threat to the applicants’ lives (rather than only to limb or liberty), when the measure was originally put in place. 31. Consequently, it has to be ascertained whether that risk was still real when the applicants were excluded from the programme, or else whether the authorities did all that could be reasonable expected of them to avoid that risk. As to its existence, the Court notes the Government’s explanation according to which the persons representing a potential threat to the applicants have been apprehended. However, the Government also admitted (see paragraph 17 above) that the programme had not been terminated because of the drop in the level of risks. In any case, since those incarcerations took place in 2010 at the latest (see paragraph 13 above), whereas the applicants were excluded from the programme only in April 2012, the Court is, for its part, unable to see any causal link between those arrests and the termination of the programme. In these circumstances, the Court observes that the applicants were excluded from the programme for reasons other than the elimination of risks, and finds that the Government have not shown in a persuasive manner that the risks have ceased to exist. It remains to be examined whether the authorities have effectively countered those risks. 32. The Court notes that the applicants’ cover identities were withdrawn and the children started to go to school under their real names. It is not unreasonable to suppose that their identities and whereabouts have become accessible to any person with the intention of harming them. In the face of this development, the Court cannot accept the Government’s assertion according to which the security previously guaranteed by the Scheme was substituted for, in a satisfactory manner, by the measures of personal protection, that is, the availability of an emergency phone number and the occasional visits by police officers. Given the importance of witness protection reflected by the Court’s case-law (see, although in different contexts, Ahorugeze v. Sweden no. 37075/09, § 121, 27 October 2011; and Doorson v. the Netherlands, 26 March 1996, §§ 69-70, Reports 1996 ‑ II) as well as by Recommendation Rec(2005)9 of the Committee of Ministers (see paragraph 21 above), the Court cannot but conclude that the authorities’ actions in this case may have potentially exposed Ms H.H. and her children to life-threatening vengeance from criminal circles and thus fell short of the requirements of Article 2 of the Convention. There has accordingly been a violation of that provision in respect of the second, third, fourth and fifth applicants. II. RULE 39 OF THE RULES OF COURT 33. The Court recalls that, in accordance with Article 44 § 2 of the Convention, the present judgment will not become final until (a) the parties declare that they will not request that the case be referred to the Grand Chamber; or (b) three months after the date of the judgment, if reference of the case to the Grand Chamber has not been requested; or (c) the Panel of the Grand Chamber rejects any request to refer under Article 43 of the Convention. 34. It considers that the indication made to the Government under Rule 39 of the Rules of Court (see paragraph 4 above) must continue in force until the present judgment becomes final or until the Court takes a further decision in this connection. III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 35. The first applicant also complained under Article 5 that the joinder of his case to the one against other perpetrators had resulted in his exposure. The Court considers that these submissions do not raise any issue under Article 5 of the Convention. He further complained under Article 6 that his trial had been unfair in that the courts had assessed the evidence in a one-sided manner to his detriment. In so far as the first applicant’s complaint may be understood to concern assessment of the evidence and the result of the proceedings before the domestic courts, the Court reiterates that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999 ‑ I). In the present case, the Court considers that there is no indication that the courts lacked impartiality or that the proceedings were otherwise unfair. He also complained that the alleged insistence of the Scheme’s operatives that the second applicant should break up with him amounted to a breach of Article 8 (see paragraph 8 above). The Court finds that this complaint is wholly unsubstantiated. Without relying on any particular provisions of the Convention, he lastly complained about the restrained conditions of his detention at S. Prison (see paragraph 18 above). The Court is satisfied that the conditions of the detention do not disclose any appearance of a violation of the first applicant’s Article 3 rights, the minimum level of severity required for this provision to come into play not being attained. Furthermore, the restrained conditions, not argued to be unlawful, can be seen as pursuing the legitimate aim of prevention of crime within the meaning of Article 8 § 2 and necessary in a democratic society to secure the first applicant’s personal security (see paragraphs 18 and 25 above); therefore, there is no appearance of a violation of the first applicant’s rights under Article 8 of the Convention in this connection either. It follows that the above complaints are manifestly ill-founded within the meaning of Article 35 § 3 (a) and must be rejected, pursuant to Article 35 § 4 of the Convention. IV. ARTICLES 46 AND 41 OF THE CONVENTION A. Article 46 of the Convention 36. The relevant parts of Article 46 of the Convention read as follows: “1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties. 2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution. ...” 37. The Court reiterates that by Article 46 of the Convention the Contracting Parties have undertaken to abide by the final judgments of the Court in any case to which they are parties, execution being supervised by the Committee of Ministers. It follows, inter alia, that a judgment in which the Court finds a breach of the Convention or the Protocols thereto imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in their domestic legal order to put an end to the violation found by the Court and to redress as far as possible the effects (see Menteş and Others v. Turkey (Article 50), 24 July 1998, § 24, Reports 1998–IV; Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000–VIII; and Maestri v. Italy [GC], no. 39748/98, § 47, ECHR 2004–I). The Court further notes that it is primarily for the State concerned to choose, subject to supervision by the Committee of Ministers, the means to be used in its domestic legal order to discharge its obligation under Article 46 of the Convention (see Scozzari and Giunta, cited above; Brumărescu v. Romania (just satisfaction) [GC], no. 28342/95, § 20, ECHR 2001–I; and Öcalan v. Turkey [GC], no. 46221/99, § 210, ECHR 2005–IV). 38. With a view, however, to helping the respondent State fulfil its obligations under Article 46, the Court may seek to indicate the type of individual and/or general measures that might be taken in order to put an end to the situation it has found to exist (see Broniowski v. Poland [GC], no. 31443/96, § 194, ECHR 2004–V; Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 148, 17 September 2009; and Stanev v. Bulgaria [GC], no. 36760/06, § 255, ECHR–2012). 39. In the instant case the Court considers that it is necessary, in view of its finding of a violation of Article 2, to indicate individual measures for the execution of this judgment without prejudice to any general measures required to prevent other similar violations in the future. It observes that it has found a violation of that Article on account of the fact that the authorities excluded the second, third, fourth and fifth applicants from the witness protection programme without satisfying themselves that the threat against the applicants was no longer there and without taking the necessary measures to protect their lives (see paragraph 32 above). 40. The Court considers that in order to redress the effects of the breach of the rights of the second, third, fourth and fifth applicants, the authorities should secure measures of adequate protection for these applicants, including proper cover identities if necessary, equivalent to those provided in section 16 of the Protection Act 2001 (see paragraph 20 above) until such time as the threat can be proven to have ceased. B. Article 41 of the Convention 41. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 1. Damage 42. Each applicant claimed 75,000 euros (EUR) in respect of pecuniary damage and EUR 25,000 in respect of non-pecuniary damage. The figure concerning pecuniary damage includes the loss of income incurred since the termination of their enrolment in the programme and the same for the future. 43. The Government contested these claims. 44. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. However, it considers that the second, third, fourth and fifth applicants must have suffered some non-pecuniary damage and awards them jointly, on the basis of equity, EUR 10,000 under this head. 2. Costs and expenses 45. The applicants also claimed EUR 4,790 plus VAT for the costs and expenses incurred before the Court. This figure includes the legal fees payable to the applicants’ lawyer, corresponding to 47 hours of legal work charged at an hourly fee of EUR 100 plus VAT as well as to EUR 90 of clerical costs. 46. The Government contested this claim. 47. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 3,000 covering costs under all heads. 3. Default interest 48. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 2 (right to life) of the Convention as regards the children and their mother. It found that the applicants had been excluded from the programme in which they had initially been enrolled without the Hungarian Government having shown that the risks had ceased to exist and without having taken the necessary measures to protect their lives. The Court concluded that the Hungarian authorities had potentially exposed the children and their mother to life-threatening vengeance from criminal circles. It further held under Article 46 (binding force and execution) that adequate measures had to be taken to protect the family, including proper cover identities if necessary. |
726 | Environmental risks and access to information | II. Relevant domestic law 28. As regards the obligation to inform the public on matters of environmental and public safety, Article 5 of DPR 175/88 provides that any undertaking carrying on dangerous activities must submit a report to the Ministry for the Environment and the Ministry of Health giving details of, among other things, its activities, emergency procedures in the event of a major accident, the persons responsible for carrying these procedures out, and the measures taken by the undertaking to reduce the risks to the environment and public health. Article 21 of DPR 175/88 provides that anyone in charge of an undertaking who fails to submit the report required by Article 5 may be sentenced to up to one year’s imprisonment. 29. At the material time Article 11 § 3 of DPR 175/88 provided that mayors were under a duty to inform the public of (a) the nature of the production process; (b) the nature and quantities of the substances involved; (c) the potential risks to employees and workers in the factory, members of the public and the environment; (d) the conclusions on the safety reports submitted by the factory pursuant to Article 5 and on any additional measures referred to in Article 19; and (e) the safety measures and procedures to be followed in the event of an accident. Article 11 § 2 provided that, in order to protect industrial secrets, any person responsible for examining reports or information from the undertakings concerned was forbidden to disclose any information that he had thereby obtained. 30. Article 11 § 1 provided that data and information on industrial activities obtained pursuant to DPR 175/88 could be used only for the purposes for which they had been requested. That provision was partly amended by Legislative Decree no. 461 of 8 November 1995. Paragraph 2 of that decree provides for an exception to the ban on disclosure of industrial secrets in the case of certain information, namely that contained in an information sheet which the undertaking must complete and send to the Ministry for the Environment and the regional or inter-regional technical committee. Mayors’ duties with regard to informing the public are unchanged and now appear in paragraph 4. 31. Article 17 of DPR 175/88 also lays certain obligations on the prefect in the matter of providing information. In particular, paragraph 1 of that provision (now paragraph 1 bis ) requires the prefect to draw up an emergency plan based on the information supplied by the factory and the Coordinating Committee for Industrial Safety Measures. That plan must be sent to the Ministry of the Interior and the Civil Defence Department. Paragraph 2 goes on to provide that, after drawing up the emergency plan, the prefect must adequately inform the population concerned of the hazards of the activities, the safety measures taken to prevent a major accident, the emergency procedures planned for the area outside the factory should a major accident occur and the procedures to be followed in the event of an accident. The amendments made to this Article in the aforementioned legislative decree include a new paragraph 1, to the effect that the Civil Defence Department must establish reference criteria for emergency planning and the adoption of measures for the supply of information to the public by the prefect, and repeal of paragraph 3, which provided that the information referred to in paragraph 2 had to be sent to the Ministry for the Environment, the Ministry of Health and the regional authorities concerned. 32. Section 14(3) of Law no. 349 of 8 July 1986, by which the Ministry for the Environment in Italy was created and the first legal provisions on environmental damage introduced, provides that everyone has a right of access to the information on the state of the environment which is, in accordance with the law, available at the offices of the administrative authorities and may obtain a copy on defrayment of the authorities’ costs. 33. In a judgment (no. 476) of 21 November 1991 the Council of Administrative Law for Sicily ( Consiglio di Giustizia amministrativa per la Regione siciliana – which in Sicily replaces the Supreme Administrative Court) held that the concept of “information on the state of the environment” included any information about human beings’ physical surroundings and concerning matters of some interest to the community. On the basis of those criteria, the Council of Administrative Law held that a district council was not justified in refusing to allow a private individual to obtain a copy of analyses of the fitness of water in the district in question for use as drinking water. PROCEEDINGS BEFORE THE COMMISSION 35. The applicants applied to the Commission on 18 October 1988. Relying on Article 2 of the Convention, they submitted that the lack of practical measures, in particular to reduce pollution levels and major-accident hazards arising out of the factory’s operation, infringed their right to respect for their lives and physical integrity. They also complained that the relevant authorities’ failure to inform the public about the hazards and about the procedures to be followed in the event of a major accident, as required in particular by Article 11 § 3 and Article 17 § 2 of Presidential Decree no. 175/88, infringed their right to freedom of information as guaranteed by Article 10. 36. On 6 July 1995 the Commission declared the application (no. 14967/89) admissible as to the complaint under Article 10 and inadmissible as to the remainder. In its report of 29 June 1996 (Article 31), it expressed the opinion by twenty-one votes to eight that there had been a breach of that Article. The full text of the Commission’s opinion and of the three dissenting opinions contained in the report is reproduced as an annex to this judgment [4]. FINAL SUBMISSIONS TO THE COURT 37. The Government concluded their memorial by inviting the Court, as their primary submission, to dismiss the application for failure to exhaust domestic remedies and, in the alternative, to hold that there had been no violation of Article 10 of the Convention. 38. At the hearing the applicants’ counsel asked the Court to hold that there had been a violation of Articles 10, 8 and 2 of the Convention and to award her clients just satisfaction. as to the law I. scope of the case 39. Before the Commission the applicants made two complaints. Firstly, the authorities had not taken appropriate action to reduce the risk of pollution by the Enichem agricoltura chemical factory at Manfredonia (“the factory”) and to avoid the risk of major accidents; that situation, they asserted, infringed their right to life and physical integrity as guaranteed by Article 2 of the Convention. Secondly, the Italian State had failed to take steps to provide information about the risks and how to proceed in the event of a major accident, as they were required to do by Articles 11 § 3 and 17 § 2 of Presidential Decree no. 175/88 (“ DPR 175/88”); as a result the applicants considered that there had been a breach of their right to freedom of information laid down in Article 10 of the Convention. 40. On 6 July 1995 the Commission, by a majority vote, upheld the Government’s preliminary objection that domestic remedies had not been exhausted in respect of the first issue and declared the remainder of the application admissible, “without prejudging the merits”. In its report of 25 June 1996 it considered the case under Article 10 of the Convention and decided that that provision was applicable and had been breached since, at least during the period between the issue of DPR 175/88 in May 1988 and the cessation of fertiliser production in 1994, the relevant authorities were under an obligation to take the necessary steps so that the applicants, who were living in a high-risk area, could “receive adequate information on issues concerning the protection of their environment”. Eight members of the Commission expressed their disagreement in three dissenting opinions, two of which pointed to the possibility of a different approach to the case, on the basis that Article 8 of the Convention was applicable to the complaint declared admissible. 41. In their memorial to the Court and at the hearing the applicants relied also on Articles 8 and 2 of the Convention, contending that the failure to provide them with the relevant information had infringed their right to respect for their private and family life and their right to life. 42. Before the Court the Delegate of the Commission merely reiterated the conclusion set out in the report (that there had been a violation of Article 10), whereas the Government argued that the complaints under Articles 8 and 2 fell outside the compass of the case as delimited by the decision on admissibility. It is therefore necessary to determine as a preliminary issue the extent of the Court’s jurisdiction ratione materiae. 43. The Court observes, firstly, that its jurisdiction “extend[s] to all cases concerning the interpretation and application of [the] Convention which are referred to it in accordance with Article 48” (see Article 45 of the Convention as amended in respect of States which have ratified Protocol No. 9) and that “In the event of dispute as to whether the Court has jurisdiction, the matter [is] settled by the decision of the Court” (Article 49). 44. Secondly, it reiterates that since the Court is master of the characterisation to be given in law to the facts of the case, it does not consider itself bound by the characterisation given by an applicant, a government or the Commission. By virtue of the jura novit curia principle, it has, for example, considered of its own motion complaints under Articles or paragraphs not relied on by those appearing before it and even under a provision in respect of which the Commission had declared the complaint to be inadmissible while declaring it admissible under a different one. A complaint is characterised by the facts alleged in it and not merely by the legal grounds or arguments relied on (see the Powell and Rayner v. the United Kingdom judgment of 21 February 1990, Series A no. 172, p. 13, § 29). The Court has full jurisdiction only within the scope of the “case”, which is determined by the decision on the admissibility of the application. Within the compass thus delimited, the Court may deal with any issue of fact or law that arises during the proceedings before it (see, among many other authorities, the Philis v. Greece judgment of 27 August 1991, Series A no. 209, p. 19, § 56). 45. In the instant case the grounds based on Articles 8 and 2 were not expressly set out in the application or the applicants’ initial memorials lodged in the proceedings before the Commission. Clearly, however, those grounds were closely connected with the one pleaded, namely that giving information to the applicants, all of whom lived barely a kilometre from the factory, could have had a bearing on their private and family life and their physical integrity. 46. Having regard to the foregoing and to the Commission’s decision on admissibility, the Court holds that it has jurisdiction to consider the case under Articles 8 and 2 of the Convention as well as under Article 10. II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 47. The applicants alleged that they were the victims of a violation of Article 10 of the Convention, which provides: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” The alleged breach resulted from the authorities’ failure to take steps to ensure that the public were informed of the risks and of what was to be done in the event of an accident connected with the factory’s operation. A. The Government’s preliminary objection 48. As they had done before the Commission, the Government raised a preliminary objection of failure to exhaust domestic remedies, to which there were two limbs. In the first limb the Government argued that it was possible to make an urgent application under Article 700 of the Code of Civil Procedure. If the applicants had feared imminent danger in connection with the operation of the factory, they could and should have sought a court order affording them instant protection of their rights. The Government acknowledged their failure to provide examples of similar cases in which Article 700 had been applied, but said that, regardless of whether that provision could be used against a public body, it could certainly be used against a factory which, as in the present case, had not produced a safety report as required by Article 5 of DPR 175/88 (see paragraph 28 above). The second limb concerned the fact that the applicants had not complained to a criminal court about the lack of relevant information from, in particular, the factory, whereas such omissions constituted an offence under Article 21 of DPR 175/88. 49. The Court considers that neither remedy would have enabled the applicants to achieve their aim. Even though the Government were unable to prove that an urgent application would have been effective as environmental cases had still not given rise to any authoritative judicial decision in the relevant area, Article 700 of the Code of Civil Procedure would have been a practicable remedy if the applicants’ complaint had concerned a failure to take measures designed to reduce or eliminate pollution; indeed, that was the Commission’s conclusion when it ruled on the admissibility of the application (see paragraph 40 above). In reality, the complaint in the instant case was that information about the risks and about what to do in the event of an accident had not been provided, whereas an urgent application would probably have resulted in the factory’s operation being suspended. As to instituting criminal proceedings, the safety report was submitted by the factory on 6 July 1989 (see paragraph 22 above) and if the applicants had lodged a criminal complaint they would at most have secured the conviction of the factory’s managers, but certainly not the communication of any information. The objection must therefore be dismissed. B. Merits of the complaint 50. It remains to be determined whether Article 10 of the Convention is applicable and, if so, whether it has been infringed. 51. In the Government’s submission, that provision merely guaranteed freedom to receive information without hindrance by States; it did not impose any positive obligation. That was shown by the fact that Resolution 1087 (1996) of the Council of Europe’s Parliamentary Assembly and Directive 90/313/EEC of the Council of the European Communities on freedom of access to information on the environment spoke merely of access, not a right, to information. If a positive obligation to provide information existed, it would be “extremely difficult to implement” because of the need to determine how and when the information was to be disclosed, which authorities were responsible for disclosing it and who was to receive it. 52. Like the applicants, the Commission was of the opinion that the provision of information to the public was now one of the essential means of protecting the well-being and health of the local population in situations in which the environment was at risk. Consequently, the words “This right shall include freedom ... to receive … information...” in paragraph 1 of Article 10 had to be construed as conferring an actual right to receive information, in particular from the relevant authorities, on members of local populations who had been or might be affected by an industrial or other activity representing a threat to the environment. Article 10 imposed on States not just a duty to make available information to the public on environmental matters, a requirement with which Italian law already appeared to comply, by virtue of section 14(3) of Law no. 349 in particular, but also a positive obligation to collect, process and disseminate such information, which by its nature could not otherwise come to the knowledge of the public. The protection afforded by Article 10 therefore had a preventive function with respect to potential violations of the Convention in the event of serious damage to the environment and Article 10 came into play even before any direct infringement of other fundamental rights, such as the right to life or to respect for private and family life, occurred. 53. The Court does not subscribe to that view. In cases concerning restrictions on freedom of the press it has on a number of occasions recognised that the public has a right to receive information as a corollary of the specific function of journalists, which is to impart information and ideas on matters of public interest (see, among other authorities, the Observer and Guardian v. the United Kingdom judgment of 26 November 1991, Series A no. 216, p. 30, § 59 (b), and the Thorgeir Thorgeirson v. Iceland judgment of 25 June 1992, Series A no. 239, p. 27, § 63). The facts of the present case are, however, clearly distinguishable from those of the aforementioned cases since the applicants complained of a failure in the system set up pursuant to DPR 175/88, which had transposed into Italian law Directive 82/501/EEC of the Council of the European Communities (the “Seveso” directive) on the major-accident hazards of certain industrial activities dangerous to the environment and the well-being of the local population. Although the prefect of Foggia prepared the emergency plan on the basis of the report submitted by the factory and the plan was sent to the Civil Defence Department on 3 August 1993, the applicants have yet to receive the relevant information (see paragraphs 26 and 27 above). The Court reiterates that freedom to receive information, referred to in paragraph 2 of Article 10 of the Convention, “basically prohibits a government from restricting a person from receiving information that others wish or may be willing to impart to him” (see the Leander v. Sweden judgment of 26 March 1987, Series A no. 116, p. 29, § 74). That freedom cannot be construed as imposing on a State, in circumstances such as those of the present case, positive obligations to collect and disseminate information of its own motion. 54. In conclusion, Article 10 is not applicable in the instant case. 55. In the light of what was said in paragraph 45 above, the case falls to be considered under Article 8 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 56. The applicants, relying on the same facts, maintained before the Court that they had been the victims of a violation of Article 8 of the Convention, which provides: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 57. The Court’s task is to determine whether Article 8 is applicable and, if so, whether it has been infringed. The Court notes, firstly, that all the applicants live at Manfredonia, approximately a kilometre away from the factory, which, owing to its production of fertilisers and caprolactam, was classified as being high-risk in 1988, pursuant to the criteria laid down in DPR 175/88. In the course of its production cycle the factory released large quantities of inflammable gas and other toxic substances, including arsenic trioxide. Moreover, in 1976, following the explosion of the scrubbing tower for the ammonia synthesis gases, several tonnes of potassium carbonate and bicarbonate solution, containing arsenic trioxide, escaped and 150 people had to be hospitalised on account of acute arsenic poisoning. In addition, in its report of 8 December 1988, a committee of technical experts appointed by the Manfredonia District Council said in particular that because of the factory’s geographical position, emissions from it into the atmosphere were often channelled towards Manfredonia (see paragraphs 14–16 above). The direct effect of the toxic emissions on the applicants’ right to respect for their private and family life means that Article 8 is applicable. 58. The Court considers that Italy cannot be said to have “interfered” with the applicants’ private or family life; they complained not of an act by the State but of its failure to act. However, although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in effective respect for private or family life (see the Airey v. Ireland judgment of 9 October 1979, Series A no. 32, p. 17, § 32). In the present case it need only be ascertained whether the national authorities took the necessary steps to ensure effective protection of the applicants’ right to respect for their private and family life as guaranteed by Article 8 (see the Lόpez Ostra v. Spain judgment of 9 December 1994, Series A no. 303-C, p. 55, § 55). 59. On 14 September 1993, pursuant to Article 19 of DPR 175/88, the Ministry for the Environment and the Ministry of Health jointly adopted conclusions on the safety report submitted by the factory in July 1989. Those conclusions prescribed improvements to be made to the installations, both in relation to current fertiliser production and in the event of resumed caprolactam production, and provided the prefect with instructions as to the emergency plan – that he had drawn up in 1992 – and the measures required for informing the local population under Article 17 of DPR 175/88. In a letter of 7 December 1995 to the European Commission of Human Rights, however, the mayor of Monte Sant’Angelo indicated that the investigation for the purpose of drawing up conclusions under Article 19 was still continuing and that he had not received any documents relating to them. He pointed out that the District Council was still awaiting direction from the Civil Defence Department before deciding what safety measures should be taken and what procedures should be followed in the event of an accident and communicated to the public. He said that if the factory resumed production, the measures for informing the public would be taken as soon as the conclusions based on the investigation were available (see paragraph 27 above). 60. The Court reiterates that severe environmental pollution may affect individuals’ well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely (see, mutatis mutandis, the Lόpez Ostra judgment cited above, p. 54, § 51). In the instant case the applicants waited, right up until the production of fertilisers ceased in 1994, for essential information that would have enabled them to assess the risks they and their families might run if they continued to live at Manfredonia, a town particularly exposed to danger in the event of an accident at the factory. The Court holds, therefore, that the respondent State did not fulfil its obligation to secure the applicants’ right to respect for their private and family life, in breach of Article 8 of the Convention. There has consequently been a violation of that provision. IV. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 61. Referring to the fact that workers from the factory had died of cancer, the applicants also argued that the failure to provide the information in issue had infringed their right to life as guaranteed by Article 2 of the Convention, which provides: “1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.” 62. Having regard to its conclusion that there has been a violation of Article 8, the Court finds it unnecessary to consider the case under Article 2 also. V. application of article 50 of the convention 63. Article 50 of the Convention provides: “If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 64. The applicants sought compensation for “biological” damage; they claimed 20,000,000,000 Italian lire (ITL). 65. In the Government’s submission, the applicants had not shown that they had sustained any damage and had not even described it in detail. If the Court were to hold that there had been non-pecuniary damage, a finding of a violation would constitute sufficient just satisfaction for it. 66. The Delegate of the Commission invited the Court to award the applicants compensation that was adequate and proportionate to the considerable damage they had suffered. He suggested a sum of ITL 100,000,000 for each applicant. 67. The Court considers that the applicants did not show that they had sustained any pecuniary damage as a result of the lack of information of which they complained. As to the rest, it holds that the applicants undoubtedly suffered non-pecuniary damage and awards them ITL 10,000,000 each. B. Costs and expenses 68. The applicants were granted legal aid for the proceedings before the Court in the amount of 16,304 French francs; however, at the end of the hearing their counsel lodged an application with the registry for an additional sum in respect of her fees. 69. Neither the Government nor the Delegate of the Commission expressed a view on the matter. 70. Having regard to the amount already granted in legal aid and the lateness of the application (see Rules 39 § 1 and 52 § 1 of Rules of Court B), the Court dismisses the claim. C. Other claims 71. Lastly, the applicants sought an order from the Court requiring the respondent State to decontaminate the entire industrial estate concerned, to carry out an epidemiological study of the area and the local population and to undertake an inquiry to identify the possible serious effects on residents most exposed to substances believed to be carcinogenic. 72. The Government submitted that those claims were inadmissible. 73. The Delegate of the Commission expressed the view that a thorough and efficient inquiry by the national authorities together with the publication and communication to the applicants of a full, accurate report on all the relevant aspects of the factory’s operation over the period in question, including the harm actually caused to the environment and people’s health, in addition to the payment of just satisfaction, would meet the obligation laid down in Article 53 of the Convention. 74. The Court notes that the Convention does not empower it to accede to such a request. It reiterates that it is for the State to choose the means to be used in its domestic legal system in order to comply with the provisions of the Convention or to redress the situation that has given rise to the violation of the Convention (see, mutatis mutandis, the following judgments: Zanghì v. Italy of 19 February 1991, Series A no. 194-C, p. 48, § 26, Demicoli v. Malta of 27 August 1991, Series A no. 210, p. 19, § 45, and Yağcı and Sargın v. Turkey of 8 June 1995, Series A no. 319-A, p. 24, § 81). D. Default interest 75. According to the information available to the Court, the statutory rate of interest applicable in Italy at the date of adoption of the present judgment is 5% per annum. | The Court held that there had been a violation of Article 8 of the Convention, finding that the Italian State had not fulfilled its obligation to secure the applicants’ right to respect for their private and family life. It reiterated in particular that severe environmental pollution may affect individuals’ well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely. In the instant case the applicants had waited, right up until the production of fertilisers ceased in 1994, for essential information that would have enabled them to assess the risks they and their families might run if they continued to live in a town particularly exposed to danger in the event of an accident at the factory. Having regard to its conclusion that there had been a violation of Article 8, the Court further found it unnecessary to consider the case under Article 2 (right to life) of the Convention also. |
792 | Conditions of detention | RELEVANT LEGAL FRAMEWORK AND PRACTICE 39. The relevant provisions regulating the use of compulsion in psychiatry are set out in the Act on the Use of Coercion in Psychiatry ( Lov om anvendelse af tvang i psykiatrien ), hereafter “the Mental Health Act” ( Psykiatriloven ). At the relevant time, section 4 provided for the overall framework, and read: Section 4 “1. Compulsion must not be used until everything possible has been done to obtain the patient ’ s voluntary participation. When conditions allow for this, the patient shall have an appropriate reflection period. 2. The use of compulsion shall be proportionate to what is sought to be achieved by [the use of compulsion]. If less restrictive measures are sufficient, these must be used. 3. Compulsion shall be used as sparingly as possible and with maximum consideration for the patient, so that there is no unnecessary violation or inconvenience. 4. Compulsion must not be used to a greater extent than is necessary to achieve the purpose which is sought. 5. After the cessation of any compulsory measure, the patient shall be offered one or more consultations. The Danish Health Authority is authorised to determine rules in this regard.” 40. The preparatory notes to section 4 ( Betænkning no. 1109/1987) set out: “ To ensure that compulsion is not used until all means of obtaining the patient ’ s consent have been exhausted, section 4(1) provides that the patient ’ s consent shall be sought and that, apart from in acute situations, the patient shall be given an appropriate reflection period in order to take a position on this issue. This may, inter alia, entail encouraging the patient: to let himself be admitted voluntarily; to voluntarily submit to treatment; or to voluntarily refrain from showing a specific type of behaviour. If encouraging the patient to participate voluntarily is unsuccessful and the use of compulsion is considered – provided that the conditions for [the use of compulsion] are present – ‘ the principle of the least intrusive measure ’ applies, which shall be observed in connection with any use of compulsion. This specific formulation of the principle of proportionality would apply without any explicit provisions in this regard, but the [drafting] committee, by codifying the rules [which provide] that compulsion must not go beyond the scope of the purpose [sought], and that compulsion in itself must be proportionate to what is sought to be achieved by the [use of] compulsion, wished to underline the importance of compliance with this principle, so that the use of compulsion under this Act is limited to what is strictly necessary. Reference is made to section 4(2) to (4). In contrast to the above, the committee considered it superfluous to codify [provisions setting out] that the use of compulsion and force must not be used to punish patients, just as degrading and humiliating treatment is prohibited. When compulsion must be used as sparingly as possible and without causing unnecessary violation or inconvenience, this means that punitive measures and degrading treatment are all the more prohibited, see section 4(3). Patients have a right to be treated equally as fellow human beings, and with all the consideration that their mental illness also requires.” 41. More detailed requirements for the use of restraint are set out in sections 14 to 16 of the Mental Health Act: Section 14 “1. Only belt[s], wrist and ankle straps and hand control mittens shall be used as measures of compulsory restraint. 2. Compulsory restraint must only be used to the extent that it is necessary to prevent a patient: i ) from exposing himself or others to an imminent risk of harm to body or health, ...” Section 15 “1. Decisions to use compulsory restraint must be made by a doctor after [he or she] has checked on the patient. 2. A decision on whether to use wrist or ankle straps in addition to a belt shall, however, be made by the chief physician. 3. If, in the event of a situation covered by section 14(2)( i ), it would be unsafe to await the doctor ’ s examination, on account of the patient ’ s own safety or the safety of others, the healthcare staff may decide on their own to restrain the patient in question. The doctor shall then be summoned immediately and make a decision as regards the use of compulsory restraint by a belt.” Section 16 “A patient who is restrained by a belt shall have somebody keeping a constant watch [over him or her].” 42. The preparatory notes to section 14 (Bill L76, submitted on 26 October 1988) set out: “Section 14(1) provides an exhaustive list of the measures that are allowed for compulsory restraint when the conditions of subsection 2 are met. No other compulsory measures – other than belt[s], wrist and ankle straps and hand control mittens – may be used. If, on the grounds mentioned in section 14(2), it is decided that it is necessary to use a belt made out of leather or fabric, the procedure under section 15 involving prior instructions [from a doctor] shall be followed in every case. This applies to all patients who are admitted to a psychiatric ward ... Section 14(2) provides for the substantive circumstances under which compulsory measures may be used. Subsection 2( i ) [covers] the most serious cases of imminent risk of harm to body or health ... [and] the largest group of protected persons is provided for here. The rule covers not only restraints used with a view to protecting fellow patients, but also [those used] to protect staff, visitors and all other people who frequent the ward, as well as the patient himself or herself. The rule thus provides the legal basis for intervention in cases of self-destructive behaviour. The criterion [for the use of restraint] is danger. For a danger to be considered imminent, it must be specific, present and demonstrable. Danger manifesting itself in destructive actions is not a prerequisite for intervention.” 43. The preparatory notes to section 14 ( Betænkning no. 1109/1987) set out, inter alia : “... The criterion is danger. For a danger to be considered imminent, it must be specific, present and demonstrable. However, a latent danger that may manifest itself under certain conditions or circumstances that may occur later will not suffice.” 44. Under the Mental Health Act, the Danish Health Ministry adopted supplementary rules about compulsory restraint in Act no. 1338 of 2 December 2010 on the use of other kinds of compulsion other than deprivation of liberty in psychiatric wards, such as: Section 19 “... 3. Prior to the specific use of compulsory restraint, there must be instructions [from a doctor] after the doctor has checked on the patient. 4. It is a prerequisite for the instructions [from the doctor] that the doctor, on the basis of the patient ’ s present condition, has decided that compulsory restraint is necessary and that the use of other measures, for example increased supervision, has proved to be insufficient or impossible as a consequence of the patient ’ s condition. 5. A decision on whether wrist or foot straps shall be used in addition to a belt shall be made by the chief physician. In the absence of the chief physician, the decision can be made by another doctor. In such cases, the chief physician shall subsequently review the decision as soon as possible. ...” Section 21 “1. A patient who is restrained by a belt shall have somebody keeping a constant watch [over him or her]. 2. [A person] keeping a constant watch is a nurse, a carer, or some other qualified staff member put in charge of the situation who does not simultaneously have other work tasks other than caring for the patient or patients restrained by a belt. 3. The supervision shall be carried out with attention to the patient ’ s wishes and with respect for his or her dignity and self-esteem. 4. The patient shall have a right to a certain degree of private life, when this is not incompatible with the patient ’ s safety.” Section 22 “... 4. If, in the case of compulsory restraint, mittens, [or] wrist or foot straps are used, in addition to a belt, the assessments under subsection 1-3 must include a separate assessment of the continued use of these coercive measures. ... 9. However, it is always up to the nursing staff to put an end to [the use of] coercion when there is no longer any need to maintain it.” 45. Various provisions in the Mental Health Act concern the registration and supervision of compulsory restraint: Section 20 “1. Information on any use of compulsion, see sections ... 14 to 17 a ..., shall be noted in the ward ’ s record on [the use of] compulsion, [and] the specific characteristics [of the intervention] and the reason for the intervention shall be indicated. This applies to all instructions under section 18. 2. The Minister of the Interior and Health determines the specific rules on records on [the use of] compulsion, as well as the registration and reporting of [the use of] compulsion to the hospital authority and the Danish Health Authority. In that connection, the Minister of the Interior and Health may determine that the reports shall contain information about the patient ’ s identity. ... ” Section 21 “1. The chief physician is continuously responsible for ... compulsory restraint ... not being applied to a greater extent than is necessary. ... 4. As long as a compulsory restraint is continued, the medical assessment of the continued use of the compulsory restraint shall be reviewed as often as the conditions allow, but at least four times every 24 hours, which should be evenly spread out, after the decision about the use of the compulsory restraint has been made. ...” 46. The requirements for registering the use of a restraint measure are elaborated on in administrative practice note no. 9713 of 20 December 2011 on the completion of records on the use of compulsion (the registration of the use of compulsion in the psychiatric system, including the registration of measures in respect of minors) and the registration of the use of discharge agreements/coordination plans; they state, among other things: “2.3. Restraint and the use of straps The date and time of the initiation and cessation [of a measure of restraint] must be entered. The cessation of restraint by a belt is understood [to mean] that the belt has been released for a longer time than just a short while. If the belt is temporarily released for up to one hour, this must not be registered. The name of the prescribing doctor and the staff involved must be entered in the records. As regards the supplementary use of straps, this compulsory measure shall be recorded [taking into account the relevant period of time] as a whole, with the start time indicated as the time when the first strap is fastened, and the end time being when the last strap has been released. Where straps are employed in the use of compulsion, the name of the chief physician shall be entered [in the records]. Simultaneous restraint by a belt and the use of straps shall be entered in the same form, as the use of straps is regarded as a supplement to the restraint. A reason, as specified in section 14 of the Danish Mental Health Act, must be entered in respect of any compulsory measure. If the decision about the use of straps is made by another doctor in the absence of the chief physician, the date of the chief physician ’ s subsequent position [on the use of straps] must be entered. In connection with the medical assessment four times a day of the continuation of the compulsory restraint, the time [of the assessment] and the doctor ’ s initials shall be entered. The assessment shall be noted in the daily records.” 47. Various provisions of the Mental Health Act concern the complaints procedure for and judicial review of compulsory restraint. Section 34 “1. As part of every State Administration, a Psychiatric Patients ’ Complaints Board shall be established, consisting of the State Administration ’ s Director as the chairman (see, however, subsection 2) and two board members. The Minister of the Interior and Health appoints a number of members upon recommendations from the Danish Medical Association and the Danish Disabled People ’ s Organisations. The Minister of the Interior and Health also appoints deputy members. Appointments last a period of four years, and [individuals may be] reappointed. 2. The Director of the State Administration may authorise employees of the State Administration to act as Chairman of the [Psychiatric Patients ’ Complaints] Board. 3. The State Administration performs the secretarial tasks of the Psychiatric Patients ’ Complaints Board and bears the operating costs of the board, including [the costs of] remunerating the members of the board.” Section 35 “Hospital authorities shall, at the request of a patient or patient counsellor, submit complaints about compulsory admissions, compulsory detention, retransfers, compulsory treatment, compulsory follow-ups after discharge under section 13 d, compulsory restraint, the use of physical force, protective restraint, the use of personal alarm and tracking systems and specific door locks, personal shielding lasting more than 24 consecutive hours, the locking of doors in the ward, compulsory restraint while a person is ambulatory, and the locking of the patient ’ s room in the high-security psychiatric unit (HDU) ( Sikringsanstalten ) under the Zealand region ’ s forensic psychiatric ward, to the Psychiatric Patients ’ Complaints Board at the State Administration.” Section 36 “1. When a case like those mentioned in section 35 is brought before the Psychiatric Patients ’ Complaints Board by the State Administration, the hospital authorities shall forward the documents relating to the case, including a written record of the compulsory measure and a statement from the chief physician. Furthermore, the board shall itself determine the facts of the case and decide on whether to obtain additional statements and so on, and the board may visit the psychiatric ward of the patient in question. 2. The patient and the patient counsellor have a right to orally present the case to the board. In exceptional cases, where the patient ’ s health or the case proceedings before the board decisively warrant this, the board may decide that the patient should be fully or partially excluded from participating in the proceedings. ... 4. The Minister for Health and Affairs relating to the Elderly determines the rules of procedure for the Psychiatric Patients ’ Complaints Boards at the State Administration.” Section 37 “The Psychiatric Patients ’ Complaints Board at the State Administration shall, at the request of the patient or the patient counsellor, bring its decisions as regards ... compulsory restraint ... before the courts, pursuant to the rules of the Danish Administration of Justice Act chapter 43 a. ...” 48. The rules on the tasks of the Medico-Legal Council and its composition appear in Act no. 60 of 25 March 1961. Section 1 “The task of the Medico-Legal Council is to make medico-forensic and pharmaceutical assessments for public authorities for the purposes of cases concerning the legal circumstances of individuals. The Minister of Justice may lay down detailed rules determining the authorities that can ask the council to make an assessment and the cases in which such assessments can be requested.” Section 2 “The council is comprised of up to 12 physicians. The council has two divisions, one of which focuses on forensic psychiatric issues, and the other [which focuses] on all other medico-forensic issues. ...” 49. The Government have provided the following statistical overview of the use of physical restraint in Denmark. 50. Table 1 shows the prevalence of the use of restraint by a belt and the duration of instances of restraint for each year for the period from 2010 to 2018. The numbers indicate the number of times restraint by a belt was used in the psychiatric system. If a psychiatric patient was restrained by a belt several times in one year, every instance of restraint by a belt is indicated as a separate incident. The table covers only persons who were nineteen years or older at the time when the restraint by a belt was initiated. 2010 2011 2012 2013 2014 2015 2016 2017 2018 0-3 hours 945 849 1,039 974 735 879 840 899 815 3-12 hours 1,507 1,497 1,426 1,554 1,411 1,401 1,300 1,261 1,036 12-24 hours 958 1,061 1,098 1,060 1,016 1,024 975 809 788 24-48 hours 551 657 712 743 672 533 496 344 391 48+ hours 545 639 756 844 775 530 491 439 444 Total 4,508 4,704 5,035 5,182 4.617 4.379 4.137 3,756 3,478 Source: The Danish Health Data Authority 51. Table 2 shows the development for the period 2010 to 2018 in the number of persons admitted to psychiatric hospitals and the number of psychiatric admissions. “Persons admitted” covers the number of persons who were admitted to a psychiatric hospital once or several times in a given year. “Admissions” covers each single period of hospitalisation, as the same person might have been hospitalised several times in one year. 2010 2011 2012 2013 2014 2015 2016 2017 2018 Persons admitted 23,029 23,224 23,749 24,191 24,224 23,875 23,213 23,658 24,052 Admissions 44,984 47,017 47,909 49,000 48,968 48,485 46,811 48,692 49,304 Source: The Danish Health Data Authority 52. As indicated in tables 1 and 2 above, in 2013 there were 49,000 admissions to psychiatric hospitals and 5,182 instances of restraint by a belt. Thus, on average, in 2013 restraint by a belt was used in approximately 10.6% of all hospitalisation cases. RELEVANT INTERNATIONAL AND EUROPEAN MATERIAL 53. The relevant provisions of the United Nations Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care (A/RES/46/119, 17 December 1991) read: Principle 1 Fundamental freedoms and basic rights “... 2. All persons with a mental illness, or who are being treated as such persons, shall be treated with humanity and respect for the inherent dignity of the human person.” Principle 9 Treatment “1. Every patient shall have the right to be treated in the least restrictive environment and with the least restrictive or intrusive treatment appropriate to the patient ’ s health needs and the need to protect the physical safety of others. ... 3. Mental health care shall always be provided in accordance with applicable standards of ethics for mental health practitioners, including internationally accepted standards such as the Principles of Medical Ethics relevant to the role of health personnel, particularly physicians, in the protection of prisoners and detainees against torture and other cruel, inhuman or degrading treatment or punishment, adopted by the United Nations General Assembly. Mental health knowledge and skills shall never be abused. ...” Principle 11 Consent to treatment “... 11. Physical restraint or involuntary seclusion of a patient shall not be employed except in accordance with the officially approved procedures of the mental health facility and only when it is the only means available to prevent immediate or imminent harm to the patient or others. It shall not be prolonged beyond the period which is strictly necessary for this purpose. All instances of physical restraint or involuntary seclusion, the reasons for them and their nature and extent shall be recorded in the patient ’ s medical record. A patient who is restrained or secluded shall be kept under humane conditions and be under the care and close and regular supervision of qualified members of the staff. A personal representative, if any and if relevant, shall be given prompt notice of any physical restraint or involuntary seclusion of the patient.” 54. In its report of 4 February 2016 regarding Denmark, the United Nation ’ s Committee Against Torture (CAT/C/DNK/CO/6-7) stated, among other things: “40. The Committee is concerned at the frequent recourse to coercive measures, often accompanied by immobilisation of patients, in psychiatric institutions, in spite of the fact that the [mental health Act] stipulates that they should be used as a last resort ... 41. The State party should: (a) Ensure that every competent mental health patient, whether voluntary or involuntary, is fully informed about the treatment to be prescribed, and given the opportunity to refuse treatment or any other medical intervention. Any derogation from this fundamental principle should be based upon law; (b) Revise and tighten regulations with clear and detailed guidance on the exceptional circumstances where the use of restraints may be allowed, with a view to considerably decreasing the recourse thereto in mental health care.” 55. The relevant parts of Recommendation Rec( 2004)10 of the Committee of Ministers of the Council of Europe to member States concerning the protection of the human rights and dignity of persons with mental disorders, 22 September 2004, read as follows: Article 27 “1. Seclusion or restraint should only be used in appropriate facilities, and in compliance with the principle of least restriction, to prevent imminent harm to the person concerned or others, and in proportion to the risks entailed. 2. Such measures should only be used under medical supervision, and should be appropriately documented. 3. In addition: i. the person subject to seclusion or restraint should be regularly monitored; ii. the reasons for, and duration of, such measures should be recorded in the person ’ s medical records and in a register. 4. This Article does not apply to momentary restraint.” 56. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) standards (CPT/Inf/E (2002) 1- Rev. 2010) contain the following rules on restraining patients in psychiatric establishments: “Involuntary placement in psychiatric establishments Extract from the 8th General Report [CPT/Inf (98) 12] 47. In any psychiatric establishment, the restraint of agitated and/or violent patients may on occasion be necessary. This is an area of particular concern to the CPT, given the potential for abuse and ill-treatment. The restraint of patients should be the subject of a clearly-defined policy. That policy should make clear that initial attempts to restrain agitated or violent patients should, as far as possible, be non-physical (e.g. verbal instruction) and that where physical restraint is necessary, it should in principle be limited to manual control. Staff in psychiatric establishments should receive training in both non-physical and manual control techniques vis-à-vis agitated or violent patients. The possession of such skills will enable staff to choose the most appropriate response when confronted by difficult situations, thereby significantly reducing the risk of injuries to patients and staff. 48. Resort to instruments of physical restraint (straps, strait-jackets, etc.) shall only very rarely be justified and must always be either expressly ordered by a doctor or immediately brought to the attention of a doctor with a view to seeking his approval. If, exceptionally, recourse is had to instruments of physical restraint, they should be removed at the earliest opportunity; they should never be applied, or their application prolonged, as a punishment ... ... 50. Every instance of the physical restraint of a patient (manual control, use of instruments of physical restraint, seclusion) should be recorded in a specific register established for this purpose (as well as in the patient ’ s file). The entry should include the times at which the measure began and ended, the circumstances of the case, the reasons for resorting to the measure, the name of the doctor who ordered or approved it, and an account of any injuries sustained by patients or staff. This will greatly facilitate both the management of such incidents and the oversight of the extent of their occurrence.” The following extract on means of restraint in psychiatric establishments for adults, from the 16th General Report (CPT/Inf (2006) 35), reads: “43. As a general rule, a patient should only be restrained as a measure of last resort; an extreme action applied in order to prevent imminent injury or to reduce acute agitation and/or violence ... ... 52. Experience has shown that detailed and accurate recording of instances of restraint can provide hospital management with an oversight of the extent of their occurrence and enable measures to be taken, where appropriate, to reduce their incidence. Preferably, a specific register should be established to record all instances of recourse to means of restraint. This would be in addition to the records contained within the patient ’ s personal medical file. The entries in the register should include the time at which the measure began and ended; the circumstances of the case; the reasons for resorting to the measure; the name of the doctor who ordered or approved it; and an account of any injuries sustained by patients or staff. Patients should be entitled to attach comments to the register, and should be informed of this; at their request, they should receive a copy of the full entry.” 57. The CPT has visited Denmark on several occasions and made specific statements about the use of physical restraint in prisons and psychiatric establishments. 58. In its report from 2002 (CPT/Inf (2002)18), the CPT expressed concern about the physical restraint of patients and recommended that it be reviewed as a matter of urgency (see paragraphs 75-76 of the report). 59. In its report from 2008 (CPT/Inf (2008)26), the CPT expressed concerns, notably about the use of long-term physical restraint at the high ‑ security psychiatric unit in Nykøbing Sjælland ( Sikringen ), which receives patients who are considered too dangerous to be placed in other closed forensic or civil wards in Denmark. The CPT stressed that means of restraint should only be used as a last resort to prevent the risk of harm to the individual or others, and only when all other reasonable options would fail to satisfactorily contain that risk, and that the duration of the application of means of mechanical restraint should be for the shortest possible time (usually for minutes or a few hours) (see paragraphs 124-127 of the report). 60. In its response (CPT/Inf (2009)12), the Danish Government did not find that there were grounds for introducing a time-limit for the application of physical restraint, “as this might deprive psychiatric departments and staff of the means to undertake necessary measures for the protection of the patient concerned and other patients, should the patient ’ s condition be unaltered at the expiry of the time limit”. They further submitted that the nursing staff could at any time discontinue physical immobilisation without a doctor ’ s prior assessment when restraint was no longer deemed necessary (see page 48 of the response). 61. In its report from 2014 (CPT/Inf (2014)25), subsequent to its visit from 4 to 13 February 2014, the CPT stated, among other things: “121. As regards the use of immobilisation in psychiatric hospitals, the CPT ’ s delegation noted a constructive attitude among its interlocutors, and an overall acknowledgement both by the central authorities and the staff in the hospitals visited of the need to reduce the resort to immobilisation (and coercion in general). However, despite measures taken to tackle the frequent use and length of immobilisation in psychiatric hospitals, such as increased staff training and certain legislative amendments, there had been no reduction in the registered use of immobilisation in Denmark. On the contrary, the instances of immobilisation, and notably those of prolonged immobilisation (for more than 48 hours), has steadily increased and reached all-time peaks in 2012 and 2013 on a national level. The CPT therefore remains seriously concerned about the frequent and prolonged use of immobilisation in psychiatric hospitals. ... In the CPT ’ s view, the duration of the actual means of restraint should be for the shortest possible time (usually minutes to a few hours ), and should always be terminated when the reason for the use of restraint has ceased. The maximum duration of the application of mechanical restraint should ordinarily not exceed 6 hours. As pointed out in the reports on the CPT ’ s 2002 and 2008 visits to Denmark, the Committee considers that applying instruments of physical restraint to psychiatric patients for days on end cannot have any medical justification and amounts to ill-treatment. 122. According to Section 15 of the Mental Health Act, immobilisation is as a rule to be decided by a doctor. Only in emergency situations could a patient be restrained to a bed with an abdominal belt upon the authorisation of a nurse while the doctor has to be called immediately. During immobilisation, one staff member has to be permanently located near the patient (while as far as possible respecting his/her privacy). The need for continuation of the measure of immobilisation has to be medically assessed at least four times a day in evenly-spaced intervals by a doctor. A second doctor has to authorise the continuation of immobilisation beyond 48 hours; however, such authorisation is thereafter obligatory only once a week. In the Committee ’ s view, a restraint approval based on the patient ’ s physical and mental condition is of little value if it is several days old. Moreover, the documentation examined by the delegation showed that in the case of a patient who had been continually immobilised for a period of 34 days at Amager, authorisation in writing by a second doctor had only been provided twice during the whole period. Indeed, staff was of the opinion that only one such authorisation was required, even if the patient was restrained for more than a month. Existing legal safeguards must be rigorously enforced. 123. The second doctor ’ s authorisation was usually provided by a psychiatrist from a different ward within the same hospital. In case of disagreement between the treating and the second doctor as to the need for continuing the immobilisation, the law provides that the treating doctor ’ s opinion prevailed. In the Committee ’ s view, such a disagreement is a serious matter and should automatically lead to a referral to a third authority for a decision. An independent scrutiny should not rely on the second doctor ’ s or the patient ’ s ability and willingness to appeal. 124. The release of an immobilised patient from belt restraint could be authorised by a nurse without consulting a doctor. This is positive, as it helps avoid the measure lasting longer than is absolutely necessary. However, the legislative amendments do not explicitly stipulate that the application of immobilisation should stop as soon as the danger of harm has passed and no maximum duration for immobilisation has been introduced. From the documentation examined, the delegation found that patients were frequently immobilised for 47 hours. The frequent termination of immobilisation just before the requirement for the second doctor ’ s assessment may raise questions as to the genuine necessity of applying the measure for the whole 47 hours. Moreover, at Amager, staff told the delegation that the release of a patient from immobilisation depended inter alia on the situation on the ward, such as the presence of other particularly demanding patients, staffing levels and the female/male staff ratio on the shift. Such a state of affairs, if accurate, would not be acceptable. 125. The CPT again calls upon the Danish authorities to review the legislation and practice of immobilising psychiatric patients and in particular to ensure that immobilisation with a belt: - is only used as a last resort to prevent risk of harm to the patient or to others; - is applied for the shortest possible time (usually minutes rather than hours) and is always terminated as soon as the danger of harm has passed; the maximum duration should ordinarily not exceed six and under no circumstances exceed 24 hours; - is never applied or its application prolonged due to a shortage of staff; - is subject to regular review by a second doctor in case of an exceptional prolongation of immobilisation beyond the six hours limit, and thereafter at reasonably frequent intervals; and that in cases of disagreement between the treating and the second doctor about the prolongation of immobilisation, the matter be automatically referred to an independent third authority for decision. The same procedure should apply if the use of mechanical restraint is repeated within 24 hours following the termination of a previous measure of restraint”. 62. In its report of 7 January 2020 (CPT/Inf (2019)35), subsequent to its visit from 3 to 12 April 2019, the CPT stated, among other things: “2. Legislative and countrywide developments in the field of psychiatry 157. As regards relevant legislative developments, the Danish Mental Health Act (hereinafter “MHA”) as well as the “Executive Order No. 1338 on the use of coercion and deprivation of liberty on psychiatric wards” have been significantly amended since the CPT ’ s 2014 visit. The main changes relevant for the CPT ’ s mandate concern the safeguards surrounding belt restraint and the special restraint measure of “walking restraint” (see paragraphs 179 and 170). 158. For many years, the CPT ’ s major criticism in the psychiatric field in Denmark has been the very high frequency and long duration of instances of restraint of psychiatric patients, in particular mechanical restraint (fixation with abdominal belt and straps), which had steadily increased over many years and reached all-time peaks in 2012 and 2013. The Danish Government, acknowledging the problem, has for several years now worked towards reducing recourse to coercion in psychiatry. In 2014, it adopted an Action Plan which included, amongst other things, the overall goal of the reduction in the percentage of hospitalised patients subject to coercion on the one hand, and of the total number of instances of mechanical restraint over 48 hours on the other, each by 50% by 2020. In addition, six experimental belt-free units were to be created in psychiatric hospitals. In order to monitor the goal of the 50% reduction in coercion, the Government had further formed a “Task Force for Psychiatry”. The CPT acknowledges the considerable efforts made by the Danish authorities over the recent years to reduce recourse to coercion and in particular belt fixation by serious management involvement, the provision of additional health-care staff, increased staff training (e.g. in de-escalation techniques and communication), improved patient involvement, enhanced activities for patients and through the creation of belt-free units in psychiatric hospitals. It is particularly commendable that the total number of instances of belt restraint, the total number of prolonged belt fixations (over 24 and over 48 hours) and the percentage of patients subject to belt restraint have now been reduced significantly at the national level. However, according to the national statistics on use of restraint, it appears that belt restraint has at least partly been replaced by other forms of coercion, mainly by “chemical restraint” (i.e. forcible administration of medication for the purpose of controlling a patient ’ s behaviour ). The Danish Health and Medicine Agency ( Sundhedsstyrelsen ) expressed its serious concerns about this “substitution effect” and reiterates its genuine commitment to achieve a long-term reduction in all means of coercion in psychiatry through a continued management focus on that goal, aimed at a long-term “cultural change in psychiatry”. The CPT further remains critical that there are still many instances of belt restraint for longer than 24 and even 48 hours. According to the national statistics, there were 408 instances per year of belt fixation for 24 to 48 hours and 439 instances per year of belt fixation for more than 48 hours in the reference period 2017/2018. It is particularly alarming that the delegation again received reports that psychiatric patients had been fixated to a bed for several months in different psychiatric hospitals pending their transfer to Sikringen. In two cases, the patients had apparently been under belt restraint for 10 and 13 months. This is completely unacceptable. Not surprisingly, one of these patients told the delegation that he required training in order to walk again properly after having been released from the belts. The CPT recommends that the Danish authorities take the necessary steps to ensure that patients are never mechanically restrained due to the lack of places at a secure psychiatric hospital. In more general terms, the Committee strongly recommends that the Danish authorities continue their efforts to reduce recourse to means of restraint in psychiatric hospitals, and instances of prolonged belt fixation in particular. As pointed out after the CPT ’ s previous visits, fixating psychiatric patients for days on end cannot have any justification and may amount to ill-treatment. Further, the utmost care should be taken to ensure that a reduction in recourse to belt fixation is not substituted by a generally increased use of other, similarly or more coercive means of restraint (notably chemical restraint).” THE LAW Article 3 OF THE CONVENTION 63. The applicant complained that he had been strapped to a restraint bed on 8 February 2013 in breach of Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 1. Submissions by the parties 64. The Government submitted that the application should be declared inadmissible as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. 65. The applicant disagreed. 2. The Court ’ s assessment 66. The Court finds that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. B. Merits 1. Submissions by the parties (a) The applicant 67. The applicant maintained that the application of physical restraint against him had been in breach of Article 3. 68. He reiterated that according to the preparatory notes to section 14 ( Betænkning no. 1109/1987) (see paragraph 43 above), for a danger to be considered imminent, it had to be specific, present and demonstrable. A latent danger that might manifest itself under certain conditions or circumstances that might occur later would not suffice. 69. In the present case, the applicant submitted that neither the medical records nor the testimonies had established that there had been an imminent danger requiring his physical restraint. Nor had it been established that other less intrusive means like personal shielding and sedative medication had been unsuccessful. 70. The applicant considered that little weight could be attached to the testimony of M.H.L, and in particular her statement before the City Court about him allegedly having said that he wanted to put a bullet through H.H. ’ s head. That statement was not supported by any daily records or other witnesses. Likewise, H.H. ’ s statement that she was sure that the applicant had been offered a sedative was not supported by any entry in his daily records. 71. Moreover, the applicant found that the opinion provided by the Medico-Legal Council had very little value, since the council could only consider the prescribing doctor ’ s medical conclusions as to possible danger, the need for treatment and so on, as facts. The applicant therefore alleged that statements by the Medico-Legal Council constituted a medical formality, and that the council had only very rarely found that a use of restraint had not been medically indicated. 72. In the alternative, the applicant contended that the immobilisation in question, which had lasted twenty-two hours and fifty minutes, had been maintained for longer than had been strictly necessary. He reiterated that this was the longest period of immobilisation by a belt which the Court had ever dealt with. In his opinion, the domestic courts had failed to examine this issue in any particular detail, although the daily records indicated that throughout the whole period while he had been restrained he had been calm, quiet and talkative. There was no mention of violent behaviour, threats or anything like that. Moreover, despite the fact that nurses had been present during the immobilisation and had officially had the authority to discontinue the use of physical restraint in accordance with section 22(9) of Act no. 1338 of 2 December 2010, it appeared that, in the present case, in fact it was only the doctors who had had that authority. 73. The applicant also found it noteworthy that the decision to release him had been made on 9 February 2013 at 10.30 a.m., whereas he had not actually been released until 12.05 p.m. 74. Lastly, he reiterated that for more than a decade the CPT had criticised Denmark for the extensive use of mechanical restraint in prisons and psychiatric establishments, and that the United Nation ’ s Committee Against Torture, in its latest report dated 4 February 2016 regarding Denmark, had recommended that the regulations be revised and tightened with clear and detailed guidance on the exceptional circumstances where the use of restraint might be allowed. ( b ) The Government 75. The Government contended that there had been no violation of Article 3 of the Convention. Everything had been in full compliance with the Court ’ s case-law on the subject: the decision to physically restrain the applicant on 8 February 2013, the continuous review of the justification for maintaining the use of the restraint measure, the duration of the measure, the constant monitoring of the applicant ’ s condition, the keeping of daily records concerning the restraint measure, and the subsequent judicial review of the lawfulness of that restraint measure. 76. The Government pointed out that the decision to immobilise the applicant had been based on a medical assessment concluding that he was dangerous to those around him, and had been taken after the use of less restrictive measures to calm him down had failed. They referred in particular to the testimony of the chief physician, H.H., who had described the applicant as being very white in the face, with fierce pent-up anger, paranoid with an inverted sense of logic, threatening, and having latent aggression. Beforehand she had left the applicant ’ s ward several times to give him the opportunity to calm down, and had offered him sedatives, but to no avail. The applicant ’ s behaviour on 8 February 2019 had to be seen in the light of the fact that he had made serious threats against H.H. the previous evening and had made the staff at the psychiatric hospital feel unsafe. Moreover, he had previously assaulted staff and fellow patients at psychiatric wards, and H.H. had known that from experience. The Government also referred to the testimony of M.H.L. and the opinion provided by the Medico-Legal Council. 77. During the period when the applicant had been restrained a member of staff had kept a constant watch on him, doctors had checked on him four times, and extensive records of all interactions had been kept by staff. The use of restraint had thus been maintained on the basis of thorough and continuous medical assessments, and with continuous monitoring. The doctors had made the measures less restrictive in line with the applicant ’ s recovery, and as soon as the doctor responsible for his treatment had assessed that it was safe to release him, he had been released. 78. Lastly, the Government reiterated that all relevant aspects concerning the necessity and proportionality of the measure in question had been reviewed by the domestic courts, at two levels of jurisdiction. They had been able to hear testimony from the persons involved and obtain independent medical statements from the Medico-Legal Council. In the Government ’ s view, those courts had therefore been in the best position to assess the course of the events and the medical assessments carried out. 2. The Court ’ s assessment (a) General principles 79. The Court reiterates that to fall under Article 3 of the Convention, ill-treatment must attain a minimum level of severity. The assessment of this minimum level of severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the gender, age and state of health of the victim (see, among many other authorities, Rooman v. Belgium [GC], no. 18052/11, § 141, 31 January 2019 ). 80. Further factors include the purpose for which the treatment was inflicted, together with the intention or motivation behind it, as well as its context, such as an atmosphere of heightened tension and emotions (see Gäfgen v. Germany [GC], no. 22978/05, § 88, ECHR 2010). 81. The Court has recognised the special vulnerability of mentally ill persons in its case-law, and the assessment of whether the treatment or punishment concerned is incompatible with the standards of Article 3 has to take into consideration this vulnerability in particular (see, inter alia, M.S. v. Croatia (no. 2), no. 75450/12, § 96, 19 February 2015, with further references ). 82. In respect of persons deprived of their liberty, recourse to physical force which has not been made strictly necessary by their own conduct diminishes human dignity and is an infringement of the right set forth in Article 3 of the Convention (ibid., § 97, and Bouyid v. Belgium [GC], no. 23380/09, §§ 100 - 101, ECHR 2015 ). 83. Furthermore, the Court reiterates that the position of inferiority and powerlessness which is typical of patients confined in psychiatric hospitals calls for increased vigilance in reviewing whether the Convention has been complied with. Nevertheless, it is for the medical authorities to decide, on the basis of the recognised rules of medical science, on the therapeutic methods to be used, if necessary by force, to preserve the physical and mental health of patients who are entirely incapable of deciding for themselves, and for whom they are therefore responsible. The established principles of medicine are admittedly, in principle, decisive in such cases; as a general rule, a measure which is a therapeutic necessity cannot be regarded as inhuman or degrading. The Court must nevertheless satisfy itself that the medical necessity has been convincingly shown to exist ( M.S. v. Croatia (no. 2), cited above, § 98). 84. In respect of the use of measures of physical restraint on patients in psychiatric hospitals, the developments in contemporary legal standards on seclusion and other forms of coercive and non-consensual measures against patients with psychological or intellectual disabilities in hospitals and all other places of deprivation of liberty require that such measures be employed as a matter of last resort, when their application is the only means available to prevent immediate or imminent harm to the patient or others ( ibid., § 104). Furthermore, the use of such measures must be commensurate with adequate safeguards against any abuse, provide sufficient procedural protection, and be capable of demonstrating sufficient justification that the requirements of ultimate necessity and proportionality have been complied with and that all other reasonable options have failed to satisfactorily contain the risk of harm to the patient or others. It must also be shown that the coercive measure at issue was not prolonged beyond the period which was strictly necessary for that purpose ( ibid., § 105). 85. Lastly, restrained patients must be under close supervision, and every use of restraint must be properly recorded (see, among other authorities, Bureš v. the Czech Republic, no. 37679/08, §§ 101-103, 18 October 2012) (b) Application of the general principles to the present case 86. The applicant complained that he had been strapped to a restraint bed on 8 February 2013. Alternatively, he complained that the restraint measure had been maintained for longer than had been strictly necessary. The Court notes from the outset that there seems to be some uncertainty as to the exact duration of the restraint measure. It is clear that the applicant was strapped to a restraint bed with a belt and wrist and ankle straps on 8 February 2013 at 1.15 p.m. (see paragraph 19 above). At 6.55 p.m., one foot strap was released and the applicant was released in connection with toilet visits and personal hygiene (see paragraph 24 above). According to the daily records, on 9 February 2013 at 10.30 a.m. B.E. assessed that it was safe to release the applicant from the restraint bed. Having conferred with H.H., it was decided that the applicant should be released at 12.05 p.m. (see paragraph 26 above). The Medico-Legal Council referred to the restraint measure having ended at 12 noon and 10.30 a.m. (see paragraph 27 above). The City Court judgment of 24 March 2017 referred to 12.05 p.m. (see paragraph 33 above), and the High Court judgment of 9 November 2017 referred to 10.30 a.m. (see paragraph 35 above). The Court will therefore proceed on the assumption that the decision to lift the restraint measure was taken on 9 February 2013 at 10.30 a.m., and executed at 12.05 p.m. The Court notes that the parties are in agreement on that point. To sum up, the applicant was strapped to a restraint bed with a belt and wrist and ankle straps during the first 5 hours and 40 minutes. Thereafter, during the following 17 hours and 10 minutes, one foot strap was released and the applicant was released in connection with toilet visits and personal hygiene. Altogether, the measure lasted 22 hours and 50 minutes. 87. The Court must therefore assess whether the decision to resort to the restraint measure, whether the duration of the restraint measure, and whether the manner in which it was implemented, including supervision, control and recording, complied with the requirements in Article 3 of the Convention, that is whether the use of force was strictly necessary and respected the applicant ’ s human dignity, and did not expose him to pain and suffering in violation of the said Article. 88. The necessity and justification of the disputed restraint measure was assessed on a number of occasions by various administrative and judicial bodies. 89. Firstly, it was reviewed by the Psychiatric Patients ’ Complaints Board, which on 21 March 2013 found it unlawful. In the board ’ s view, it had not been documented that the applicant had exposed himself or others to an imminent risk of harm to body or health. However, it is noteworthy that only the applicant was heard by the board. H.H., the chief physician who had made the decision at issue, fell ill, and was therefore not heard by the board; it only had a brief statement from her about the incident (see paragraph 9 above). 90. Secondly, the use of physical restraint was reviewed in connection with the applicant ’ s complaint against H.H. lodged with the Health Authority. On the basis of a statement by the applicant and a statement by H.H. of 30 August 2014 (see paragraph 14 above), on 19 December 2014 the Health Authority found no grounds for concluding that H.H. had acted with a lack of care or conscientiousness (see paragraph 15 above). 91. Thirdly, the disputed measure was reviewed by the courts, when the applicant claimed that the State Administration should acknowledge having violated his rights under Article 3 of the Convention and pay him compensation. 92. The City Court heard evidence from the applicant, H.H. the chief physician, and the healthcare assistant M.H.L. about the disputed use of physical restraint. It also had regard to the applicant ’ s daily records, the decisions by the Psychiatric Patients ’ Complaints Board and the Health Authority, the statement by H.H. of 30 August 2014, and a statement by the Medico-Legal Council of 2 June 2016. On the basis of that evidence, by a judgment of 24 March 2017, the City Court found that the conditions under section 14(2)( i ) of the Mental Health Act had been fulfilled, in that it had been necessary to prevent the applicant from exposing others to an imminent risk of harm to body or health, and less intrusive measures had not been possible (see paragraph 33 above). 93. On appeal, by a judgment of 9 November 2017, on the basis of the written evidence submitted in the case, the High Court found no reason to disregard H.H. ’ s assessment at the time of the incident, and found that it had been necessary to strap the applicant to a restraint bed in order to avoid an imminent danger to himself or others, and that during the period while he had been restrained the staff had assessed with sufficient frequency whether the conditions for the restraint measure were still present (see paragraph 35 above). 94. Leave to appeal to the Supreme Court was refused on 15 March 2018. 95. The Court observes that European and national standards (see “Relevant domestic law” and “Relevant International and European Material”) are unanimous in declaring that physical restraints can be used only exceptionally, as a matter of last resort and when their application is the only means available to prevent immediate or imminent harm to the patient or others (see also, for example, M.S. v. Croatia (no. 2), cited above, § 104, and Bureš v. the Czech Republic, cited above, § 95). 96. In line with these standards, the domestic courts carefully examined the case and confirmed that there had been a sufficient basis for the chief physician H.H. ’ s decision to strap the applicant to a restraint bed on 8 February 2013 at 1.15 p.m. on the grounds that this was necessary and proportionate to prevent him from subjecting the staff and the patients at the psychiatric hospital to an imminent risk of harm to body or health. Among other things, it was emphasised that on the previous evening the applicant had been angry and frustrated and had said “we have to do something about her”, which the staff had perceived as a threat against H.H. The following morning, he had had a “lot of pent-up anger”, notably when being told by H.H. that he could not go on day release while he was so angry. There had been three attempts to either enter into a dialogue with the applicant or leave him alone in order to let him calm down (see, in particular, paragraphs 14 and 19 above), but after one and a half hours he had still been extremely angry and considered to be a danger to those around him. At 1.15 p.m. on 8 February 2013 his “aggression and tension [had been] building up to such an extent that [H.H. had not] dared to [leave] him [un]restrained by a belt. [She] had felt that [everything] would go terribly wrong and escalate into violence, and that someone would get hurt”. H.H. had known the applicant and his illness well, including the fact that he had been sentenced to committal to a psychiatric hospital in 2005 and had previously assaulted staff and other patients in psychiatric wards. 97. Before the City Court H.H. stated that she was “entirely sure that the applicant had been offered a sedative before being physically restrained with the belt” (see paragraph 30 above). Before the Court the applicant contested that he had been offered a sedative by H.H. He emphasised that this was not supported by any entry in his daily records. Before the Court the applicant also maintained that “personal shielding” (section 18 d of the Mental Health Act) could have been used as a less intrusive measure. The Court cannot see that these issues were specifically relied on by the applicant before the domestic courts, which may explain why they were not separately addressed by the City Court and the High Court. It is not for the Court to speculate as to whether a sedative was offered or not, or whether, having regard to the information about the applicant ’ s state and behaviour, a sedative or “personal shielding” could and should have been resorted to as an alternative to the measure applied. It observes, though, that the City Court in general stated “that it has been documented that measures less intrusive than physical restraint were not possible, see the principle of the least intrusive measure in section 4 of the Act” (see paragraph 33 above). 98. The Court is thus satisfied that it was demonstrated that the immobilisation of the applicant was employed as a matter of last resort, and was the only means available to prevent immediate or imminent harm to others (see paragraph 84 above). 99. The applicant submitted that for more than a decade the CPT had criticised Denmark for the extensive use of physical restraint in prisons and psychiatric institutions, and that the United Nation ’ s Committee Against Torture, in its report of 4 February 2016, had expressed concern “ at the frequent recourse to coercive measures, often accompanied by immobilisation of patients, in psychiatric institutions, in spite of the fact that the Psychiatric Act stipulates that they should be used as a last resort” (see paragraphs 54 and 61 above in particular). 100. The Court is always attentive to positions held by other international institutions such as the CPT and the United Nation ’ s Committee Against Torture. It will be recalled though that the Court performs a conceptually different role from the one assigned to the CPT, whose responsibility does not entail pronouncing on whether a certain situation amounts to inhuman or degrading treatment or punishment within the meaning of Article 3 (see, for example, Muršić v. Croatia [GC], no. 7334/13, §113, 20 October 2016). Likewise, in the report of 4 February 2016 regarding Denmark (see paragraph 54 above), the United Nation ’ s Committee Against Torture expressed its general concern rather than its concern in a specific case or a concrete hospital. 101. Finally, in cases arising from individual petitions, the Court ’ s task is not to review the relevant legislation or an impugned practice in the abstract. Instead, it must confine itself, as far as possible, without losing sight of the general context, to examining the issues raised by the case before it ( see, for example, Donohoe v. Ireland, no. 19165/08, § 73, 12 December 2013; Julin v. Estonia, cited above, § 126; Nejdet Şahin and Perihan Şahin v. Turkey [GC], no. 13279/05, § § 69-70, 20 October 2011; Taxquet v. Belgium [GC], no. 926/05, § 83 in fine, ECHR 2010; and Religionsgemeinschaft der Zeugen Jehovas and Others v. Austria, no. 40825/98, § 90, 31 July 2008). 102. The Court will now proceed to examine the continuation and duration of the physical restraint measure. The Court recalls in this context that it is not sufficient that the decision to resort to the restraint measure was “strictly necessary” to prevent an immediate and imminent risk of harm to other persons. In addition, it is also a requirement that the restraint measure is not prolonged beyond the period which was “strictly necessary” (see paragraph 84 above), and that it is for the State to demonstrate convincingly that this condition was met. 103. The applicant pointed out that he had been strapped to the restraint bed for almost twenty-three hours, which was the longest period of immobilisation by a belt which the Court had ever dealt with. 104. The Court therefore finds it appropriate to compare the present case with some previous cases in which it found that strapping a person to a restraint bed had been in violation of Article 3 of the Convention. At the outset, the Court reiterates that the applicant in the present case was suffering from paranoid schizophrenia and had been sentenced to committal to a psychiatric hospital owing to five incidents of violence against civil servants acting in their official functions. Furthermore, as concluded above, the decision by the chief physician at the hospital to strap the applicant to a restraint bed on 8 February 2013 was found to be necessary in order to prevent him from exposing others to violence. The case at hand should thus be distinguished from cases on the physical restraint of prisoners, where the Court has stated that strapping a person to a restraint bed – in the absence of medical reasons – is a measure which should rarely be applied for more than a few hours, see, for example, Julin v. Estonia (nos. 16563/08 and 3 others, § 127, 29 May 2012). In that case, the applicant had already been locked in a single-occupancy disciplinary cell before he was placed in a restraint bed for nine hours. It may also be distinguished from Tali v. Estonia (no. 66393/10, §§ 81 ‑ 82, 13 February 2014), where a measure whereby the applicant was strapped to a restraint bed for three hours and forty minutes, when implemented along with other measures such as his placement in a single ‑ occupancy disciplinary cell and the use of physical force, handcuffs, pepper spray and telescopic batons, amounted to inhuman and degrading treatment. In both cases, the Court emphasised that restraint should never be used as a means of punishment, but rather to avoid self-injury or serious danger to other persons or prison security. The case at hand can also be distinguished from M.S. v Croatia (cited above), where the Court found that physical restraint for fifteen hours was the principal element that appeared worrying (ibid., §§ 99-100). However, it should be reiterated that, unlike the applicant in the present case, Mrs M.S. was not confined to a psychiatric hospital owing to a criminal conviction for violence. She went to see her family doctor, who sent her to the emergency health service, which prescribed hospitalisation. She was immediately, against her will, admitted to a psychiatric clinic, where, on the same day, she was strapped to a restraint bed. Moreover, her alleged aggression was only indicated in her record after the measure had already been used, and the records did not suggest that she had attempted to attack anyone. In addition, she had physical health problems and complained of pain in her back several times during the period while she was restrained. Lastly, the present case can be distinguished from Bureš v. the Czech Republic (cited above), where the applicant was a fragile man of slight build who was suffering from a mental illness. He was taken to a sobering-up centre in a state of intoxication and was immediately strapped to a restraint bed for several hours due to alleged “restlessness”. His subsequent restraint was justified by his allegedly aggressive behaviour towards a male nurse, but there were no reports of this to the police, and there were no details about the nature of the attack anywhere in the case file. In addition, due to the restraint, Mr Bureš suffered severe bilateral paresis of the elbow nerves. 105. It follows that the present case is distinguishable from the cases so far examined by the Court, and that it cannot be concluded that the duration of almost twenty-three hours for the applicant to be strapped to the restraint bed is, per se, sufficient to find a violation of Article 3. It will depend on whether the continuation and duration of the measure of physical restraint in respect of the applicant was the only means available to prevent immediate or imminent harm to himself or others (see, M.S. v Croatia, cited above, § 104). 106. The domestic courts confirmed that the continuation and duration of the physical restraint measure in respect of the applicant had been necessary and proportionate to prevent him from subjecting others to an imminent risk of harm to body or health. It was undisputed that a social and healthcare assistant had been present with the applicant throughout the period while he had been restrained, and that the observations of those assistants had regularly been entered in his daily records. Moreover, doctors had been to see the applicant four times. 107. From the applicant ’ s daily records, it was apparent that H.H. had been to see the applicant at 2.45 p.m. and he had still had a great deal of pent-up anger. He had appeared to have latent aggression. At 6.55 p.m. Doctor B.E. had found that the applicant appeared more “quiet” and talkative, and had therefore decided to release one ankle strap and allow the applicant to be released in connection with toilet visits and personal hygiene. Thus, after less than six hours the measure was relaxed. Despite that progress, at 10.46 p.m. B.E. had decided that the applicant was still potentially dangerous to other people because of his “instinctive anger”. The following day, on 9 February 2013 at 6 a.m. M.O., a carer, had written that the applicant had slept throughout the night. At 10.30 a.m. B.E. had decided that it was safe to release the applicant from the restraint bed, and following a discussion with H.H. the applicant had been released at 12.05 p.m. 108. On the basis of the information before them, including the statement from the Medico-Legal Council, the domestic courts were confident that during the period when the applicant had been physically restrained, medical evaluations had been carried out with sufficient frequency to assess whether the conditions for the restraint measure were still present. 109. The Court reiterates that the domestic courts had the benefit of direct contact with all the persons concerned, and that the assessment of whether the use of restraint in respect of the applicant was necessary was first and foremost a medical assessment (see M.S. v Croatia, cited above, § 98, and, mutatis mutandis, Herczegfalvy v. Austria, no. 10533/83, § 82, 24 September 1992). 110. Nevertheless, in the Court ’ s view, the domestic courts were silent on several issues, which were crucial for the assessment of whether the continuation of the restraint, and its duration for almost twenty-three hours, was “strictly necessary” to prevent immediate or imminent harm to others. 111. Firstly, the Court notes that although at 6.55 p.m. Doctor B.E. found that the applicant appeared more “quiet” and talkative, and therefore decided to release one ankle strap and allow the applicant to be released in connection with toilet visits and personal hygiene, at 10.46 p.m., that is approximately four hours later, he nevertheless maintained the immobilisation, because he found that the applicant was still “potentially” dangerous to other people because of his instinctive anger. The Court recalls in this respect that a “potential” danger does not suffice to establish that a danger is immediate or imminent. That was also specified in the preparatory notes to section 14 of the Mental Health Act (see paragraph 43 above), which stated that “for a danger to be considered imminent, it must be specific, present and demonstrable. However, a latent danger that may manifest itself under certain conditions or circumstances that may occur later will not suffice.” 112. Secondly, between 8 February 2013 at 10.46 p.m. and the following day, 9 February 2013, at 10.30 a.m., that is a period of almost twelve hours, the applicant was not attended to by a doctor. It is not disputed between the parties, as written by M.O. in the applicant ’ s daily records at 6 a.m., “that the evening had been quiet and the applicant had slept throughout the night”, or that there was always a social and healthcare assistant present with the applicant, but it remains the fact that in the end it was a doctor who took the decision to release him and that there was no danger assessment carried out by a doctor for almost twelve hours. 113. Thirdly, although B.E. had decided that it was safe to release the applicant on 9 February 2013 at 10.30 a.m., he was actually not released until 12.05 p.m., that is until H.H. had been consulted. Accordingly, the physical restraint was prolonged by one hour and thirty-five minutes without any explanation for this delay. 114. In these specific circumstances, in particular having regard to the available information about the applicant ’ s state during the evening and night of 8 February 2013, and the delay in releasing him de facto on 9 February 2013, and the domestic courts ’ failure to specifically address these issues, the Court cannot conclude that it has been sufficiently proven that the continuation and the duration of the restraint measure for almost twenty-three hours was strictly necessary and respected the applicant ’ s human dignity, and did not expose him to pain and suffering in violation of Article 3 of the Convention (see M.S. v. Croatia, cited above, § 105). 115. It follows that there has been a violation of Article 3 of the Convention. APPLICATION OF ARTICLE 41 OF THE CONVENTION 116. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 117. The applicant claimed 40,000 Euros (EUR) in compensation for non ‑ pecuniary damage relating to the alleged violation of Article 3 of the Convention. 118. The Government submitted that the claim was excessive. 119. The Court considers it undeniable that the applicant sustained non ‑ pecuniary damage on account of the violation of Article 3 of the Convention. Making its assessment on an equitable basis as required by Article 41 of the Convention, it awards EUR 10,000 under this head. B. Costs and expenses in the domestic proceedings 120. The applicant claimed reimbursement of the costs and expenses incurred in the domestic proceedings, amounting to 146,500 Danish Kroner (DKK) (equal to approximately EUR 19,700), which had been paid by his insurance company. 121. The Government emphasised that the applicant had not paid the said costs, nor was he liable to pay them. 122. The Court reiterates that only legal costs and expenses found to have been actually and necessarily incurred and which are reasonable as to quantum are recoverable under Article 41 of the Convention (see, for example, Dudgeon v. the United Kingdom (Article 50), 24 February 1983, § 22, Series A no. 59). The Court further notes that the costs of the domestic proceedings may be awarded if they are incurred by an applicant in order to try to prevent the violation found by the Court or to obtain redress therefor (see, among other authorities, Lopata v. Russia, no. 72250/01, § 168, 13 July 2010). 123. In the present case, it is not in dispute between the parties that the costs claimed were indeed paid by the applicant ’ s insurance company. Accordingly, the Court makes no award in respect of the costs incurred in the domestic proceedings. C. Costs and expenses before the Court 124. The applicant claimed the costs and expenses incurred in the Convention proceedings in the amount of DKK 131,981 (equal to approximately EUR 17,700), corresponding to legal fees for a total of 57 hours of work, carried out by his representative, and to translation costs in the amount of DKK 6,937 inclusive of VAT, (equal to approximately EUR 930). 125. The Government found the amount excessive and noted that the applicant had been granted legal aid under the Danish Legal Aid Act ( Lov 1999-12-20 nr. 940 om retshjælp til indgivelse og førelse af klagesager for internationale klageorganer i henhold til menneskerettighedskonventioner ) and that the Department of Civil Affairs had notified the applicant of a provisional grant of legal aid up to DKK 40,000 (equal to approximately EUR 5,400). In the Government ’ s view that sum was sufficient to cover the legal costs related to the case before the Court. 126. In the present case, the applicant has provisionally been granted DKK 40,000 under the Danish Legal Aid Act. However, it is uncertain whether the applicant will subsequently be granted additional legal aid by the Ministry of Justice and how a dispute between the parties about the applicant ’ s outstanding claim for legal aid is to be decided. Therefore, the Court finds it necessary to assess and decide the applicant ’ s claim for costs and expenses. 127. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the documents in its possession, the above criteria, and awards made in comparable cases against Denmark (see, among others, Tim Henrik Bruun Hansen v. Denmark, no. 51072/15, § 92, 9 July 2019 and Osman v. Denmark, no. 38058/09, § 88, 14 June 2011), and the fact that the applicant has already been paid DKK 40,000 under the Danish Legal Aid Act, the Court considers it reasonable to award the sum of EUR 4,000 covering the costs for the proceedings before the Court, including the legal fee and translation costs. D. Default interest 128. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 3 (prohibition of inhuman and degrading treatment) of the Convention, finding that the Danish authorities had not sufficiently proven that continuing to strap the applicant to a restraint bed for 23 hours had been strictly necessary. Given the context and the applicant’s history of violent offences, the Court, like the domestic courts, was satisfied that the decision to strap him to a restraint bed had been the only means available to prevent immediate or imminent harm to staff and patients at the hospital. However, the domestic courts had failed to address several issues in so far as the continuation and duration of the measure was concerned. In particular, a duty doctor had continued the measure throughout the night despite having found the applicant calm four hours earlier. There had also been a one and half hour delay in releasing him from the restraint bed the next day. In the present case, the Court could not conclude that the measures had respected the applicant’s human dignity and had not exposed him to pain and suffering. |
77 | Parental authority, child custody and access rights | II. RELEVANT DOMESTIC AND COMPARATIVE LAW A. Domestic law and practice 1. Provisions of the Basic Law 29. Under Article 3 of the Basic Law, everyone is equal before the law (§ 1); men and women have equal rights (§ 2). 30. Article 6 of the Basic Law, in so far as relevant, provides: (1) Marriage and the family shall enjoy the special protection of the state. (2) The care and upbringing of children is the natural right of parents and a duty primarily incumbent upon them. The state shall watch over them in the performance of this duty. 2. Provisions of the Civil Code (a) Provisions on access to and information about a child 31. Parental custody includes the right to determine access to the child (Article 1632 § 2 of the Civil Code). 32. According to Article 1684 § 1 of the Civil Code, a child has a right of access to each parent, and each parent in turn has the right and the duty to have contact with the child. The family courts can determine the scope of the right of access and prescribe more specific rules for its exercise, also with regard to third parties (Article 1684 § 3). They may restrict or suspend that right if such a measure is necessary for the child’s welfare. A decision restricting or suspending that right for a lengthy period or permanently may only be taken if the child’s well-being would otherwise be endangered. The family courts may order that the right of access be exercised in the presence of a third party, such as a Youth Office or an association (Article 1684 § 4). 33. Under Article 1685 § 1 of the Civil Code, grandparents and siblings have a right of access to the child if this serves the child’s best interest. Article 1685 § 2 of the Civil Code, in its version applicable at the relevant time, further provides for persons with whom the child has close ties ( enge Bezugspersonen ) to have a right of access to the child if this serves the child’s best interest and if they are bearing actual responsibility for the child or have done so in the past (social and family relationship). It is to be assumed, as a rule, that a person who lived with the child in domestic community for a lengthy period of time has borne such actual responsibility. Article 1684 §§ 3 and 4 apply mutatis mutandis (see Article 1685 § 3 of the Civil Code). 34. Under Article 1686 of the Civil Code, each parent who has a legitimate interest in obtaining information about the child’s personal circumstances may request such information from the other parent in so far as this is not contrary to the child’s best interest. (b) Provisions on paternity 35. According to Article 1592 of the Civil Code, a child’s father is either the man who at the date of the child’s birth was married to the child’s mother (no. 1), or the man who acknowledged paternity (no. 2) or whose paternity is judicially established under Article 1600d of the Civil Code (no. 3). 36. An acknowledgement of paternity is not valid as long as the paternity of another man exists (Article 1594 § 2 of the Civil Code). 37. Paternity may be challenged. Under Article 1600 § 1 of the Civil Code, entitlement to challenge paternity lies with the man whose paternity exists under Article 1592 nos. 1 and 2, with the mother and with the child, and also with the man who makes a statutory declaration that he had sexual intercourse with the child’s mother during the period of conception. However, pursuant to § 2 of Article 1600, this last man has a right to challenge the paternity of the man who is the child’s legal father under Article 1592 nos. 1 or 2 only if he is the child’s biological father and if there is no social and family relationship between the legal father and the child. If there is no paternity under Article 1592 nos. 1 or 2 of the Civil Code, paternity is to be established by the family court (Article 1600d § 1 of the Civil Code). B. Comparative law 38. Research undertaken by the Court in relation to 23 Council of Europe Member States shows that there is no uniform approach in the Member States of the Council of Europe to the question whether, and if so, under what circumstances, a biological father (who is not only a sperm donor) has a right to contact with his child where a different father exists in law. 39. In a considerable number of States (including Bosnia and Herzegovina, Estonia, France, Ireland, Portugal, Russia, Slovenia, Spain, the United Kingdom and Ukraine), where a child is born to a woman who is living with her husband, a biological father can ensure his contact rights by first challenging the paternity presumption in place, in some cases within a fixed time-limit. In these States, as indeed in all of the countries surveyed, a presumption exists in law to the effect that a child born of a married woman during the subsistence of the marriage is also the child of her husband. Having been recognised as the (legal) father of the child concerned, the biological father then has a right to contact with his child like any other non ‑ custodial parent, subject to the child’s best interest. 40. According to an expert report drawn up in March 2010 by the German Institute for Youth Human Services and Family Law ( Deutsches Institut für Jugendhilfe und Familienrecht e.V., a registered association and non-governmental organisation), which was submitted by the Government and covered, in addition to Germany, seventeen other Council of Europe Member States, the same applied in Greece. That report, however, interpreted differently the provisions applicable in France and Spain. The applicant submitted that there were several other countries where a biological father could challenge the legal father’s paternity under conditions which were less restrictive than those applicable in Germany, such as Azerbaijan, Lithuania, Moldova, Norway, San Marino and Serbia (see paragraphs 41 and 43 below for the research undertaken by the Court in respect of Azerbaijan). He contested in general terms the comparative law analysis submitted by the Government, arguing that the legal situation in only seventeen of the forty-seven Member States of the Council of Europe was not representative. 41. In a considerable number of Council of Europe Member States, according to the Court’s research, the biological father of a child would, on the contrary, not be able to challenge the said paternity presumption in circumstances similar to those in the present application (see, in particular, Azerbaijan, Belgium, Croatia, Finland, Hungary, Italy, Latvia, Luxembourg, Monaco, the Netherlands, Poland, Slovakia and Switzerland). Biological fathers in those countries lack standing to bring an action to challenge that presumption, be it in all circumstances or at least in cases in which the mother is still living with her husband (see in this latter regard the law in force in Belgium and Luxembourg). 42. According to the expert report of the German Institute for Youth Human Services and Family Law submitted by the Government, the same applies in Austria, the Czech Republic, Denmark, Liechtenstein, Sweden and Turkey. 43. In these Member States it is open to the biological father to apply for contact only as a third party, not as a parent. However, in some of these States (Azerbaijan, Croatia, Finland, Hungary, Italy, Luxembourg and Poland) the biological father does not have standing to apply for contact even as a third party, as the law provides a right of contact only to legal parents and (to some extent) to other relatives. 44. According to the same expert report of the German Institute for Youth Human Services and Family Law, the biological father would also not have standing to apply for contact in Liechtenstein and in the Czech Republic. 45. In the remaining Member States surveyed by the Court in which the paternity presumption may not be challenged by a biological father (Belgium, Latvia, Monaco, the Netherlands, Slovakia and Switzerland), different preconditions apply for that father to be granted contact if such contact is in the child’s best interest. According to Article 375 bis of the Belgian Civil Code, there has to be “proof of a tie of special affection with the child”; according to Article 181 § 3 of the Latvian Civil Code, the father must have lived together with the child for a long time in the same household. In Monaco a third person can be granted contact by a judge where that would be in the best interest of the child, without additional preconditions having to be met (compare Article 300 of the Monegasque Civil Code). In the Netherlands, third persons (including mere sperm donors) may be granted contact under Articles 1:377f and 1:377a § 3 of the Civil Code of the Netherlands if they have a close personal relationship with the child, unless contacts run counter to the child’s best interest. According to section 25 § 5 of the Slovakian Family Act, the biological father may be granted access if he is regarded as being “close” to the child (according to the expert report submitted by the Government, a similar provision applies in Sweden), and under Article 274a of the Swiss Civil Code, he has a right to contact in exceptional circumstances (according to the expert report submitted by the Government, the same precondition applies in Turkey). 46. According to the report submitted by the Government, Section 20 of the Danish Act on Parental Responsibility provides that access may be granted only to close relatives having close personal ties with the child concerned and only if the parents have no or hardly any contact with the child. The report further states that under Article 148 § 3 of the Austrian Civil Code, a biological father may be granted access to his child if the child’s welfare is endangered otherwise. THE LAW I. COMPLAINT CONCERNING THE REFUSAL OF ACCESS TO AND INFORMATION ABOUT F. 47. The applicant complained that the domestic courts’ decision to refuse him access to his son and information about his personal circumstances violated his right under Article 8 of the Convention to respect for his private and family life. He further submitted that the domestic courts’ failure to investigate sufficiently the relevant facts concerning his relationship with his son, in particular his paternity, and the question whether access was in the child’s best interest violated Article 8, read in conjunction with Article 6 of the Convention. 48. The Court considers that the complaint falls to be examined under Article 8 alone, which, in so far as relevant, reads as follows: “1. Everyone has the right to respect for his private and family life, ... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 49. The Government contested that argument. A. Admissibility 1. The Government’s submissions 50. The Government took the view that the application was inadmissible. They argued that the applicant lodged a total of five applications with the Court concerning the proceedings here at issue. In his first to fourth applications, dated 1 September 2004, 22 December 2005, 21 March 2006 and 30 May 2006, he had failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention. The applications had been lodged while proceedings were still pending before the domestic courts and before he had obtained a decision of the Federal Constitutional Court. As to his fifth application, the applicant had failed to demonstrate that he had complied with the six-month time-limit under Article 35 § 1 of the Convention. The original of his application, dated 4 April 2007, had been received at the Court only on 11 April 2007, and he had failed to demonstrate that the application reached the Court by fax in good time. The Federal Constitutional Court’s decision having been served on the applicant’s counsel on 4 October 2006, the six-month time-limit for lodging an application had expired on 4 April 2007. 51. The Government further submitted that the application was inadmissible in so far as the applicant complained about a breach of his fundamental rights in relation to his knowledge of F.’s descent. In this respect, the applicant had failed to institute separate paternity proceedings under Article 1600 § 2 of the Civil Code (see paragraph 37 above). The Federal Constitutional Court had, accordingly, expressly rejected his complaint as inadmissible on that ground. The applicant also could not claim that such proceedings would have excessively delayed the access proceedings, which he had brought only half a year after F.’s birth. The Government further contested that paternity proceedings had been bound to fail, given that the Federal Constitutional Court had not yet ruled on the amended version of Article 1600 of the Civil Code. 2. The applicant’s submissions 52. The applicant submitted that his application dated 4 April 2007 had been received at the Court by fax on that day and thus within the six-month time-limit under Article 35 § 1 of the Convention. In the alternative, he submitted that, having regard to the Federal Constitutional Court’s well ‑ established case-law and the applicable provisions of the Civil Code, a complaint to that court and to the Frankfurt am Main Court of Appeal had not been effective remedies he had been obliged to exhaust. 53. As to the Government’s allegation that he had failed to exhaust domestic remedies in that he had not contested Mr H.’s paternity in separate proceedings under Article 1600 of the Civil Code, the applicant argued that the Government had not demonstrated that such proceedings were an effective remedy he was obliged to exhaust. As the family courts had convincingly noted, such proceedings were bound to fail as Mr H. was living in a social and family relationship with F. Moreover, according to the explicit reasons given by the domestic courts, it had not been decisive whether or not he was F.’s biological father. His claim for access and information had been rejected for lack of a social and family relationship between him and F., even assuming that he was F.’s biological father. In any event, as F’s biological father his proceedings had only been aimed at being granted access to the boy and information about his development. He had not intended to become F.’s legal father by way of separate paternity proceedings, which would, furthermore, have unduly delayed a decision on his request for access to F. Such a course, if successful, would have ended Mr H.’s legal paternity, which might not have been in F.’s best interest. 3. The Court’s assessment 54. The Court observes that the application at issue in the present case and communicated to the Government is the application dated 4 April 2007. It concerned the applicant’s requests for access to and information about F. and was lodged after the decision of the Federal Constitutional Court was served on the applicant’s counsel on 4 October 2006. The application was received at the Court, according to the information in its case-file, by fax on 4 April 2007 (and subsequently, on 11 April 2007, also by normal post). Accordingly, the application was lodged after all domestic remedies had been exhausted in relation to the requests for access and information. It was also lodged within six months from the date on which the final decision of the Federal Constitutional Court was served on the applicant’s counsel, in compliance with Article 35 § 1 of the Convention. The Government’s objections on those grounds must therefore be dismissed. 55. The Court notes the Government’s further objection that the application was inadmissible in so far as the applicant complained about a breach of his fundamental rights in relation to his knowledge of F.’s descent. In the Government’s view, the applicant should have instituted separate paternity proceedings under Article 1600 § 2 of the Civil Code to settle that matter. The Court observes that in the proceedings at issue, the applicant requested access to F. and information about the boy’s personal circumstances. It was only in that context that the applicant submitted that the domestic courts, in order to establish the relevant facts and to be able to rule on his requests, had been obliged to determine, inter alia, whether he was in fact the biological father of F. He had thus not intended, in the proceedings at issue, to be recognised as F.’s legal father – which is the aim of paternity proceedings under Article 1600 of the Civil Code. 56. The Court considers that the question whether the applicant was nevertheless obliged to institute paternity proceedings prior to his application to be granted access to and information about F. is closely linked to the substance of his complaint under Article 8 and to the scope of his rights under that provision. It therefore joins the objection raised by the Government in this respect to the merits of the case. 57. The Court further notes that this complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention, or inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties’ submissions (a) The applicant (i) Submissions on whether there was an interference 58. The applicant took the view that the relationship between F. and him as his biological father amounted to family life within the meaning of Article 8 § 1 of the Convention. He submitted that he had had a lengthy relationship with F.’s mother, Mrs H., from May 2002 until September 2003. He claimed that Mrs H. had informed him that her marriage had broken down and that her husband was living together with a new partner in the United Kingdom. Mrs H. and he had lived alternating between their respective homes. They had planned to have the child F. The applicant had accompanied Mrs H. to four medical examinations relating to her pregnancy and Mrs H. had presented him as the child’s father to others, including her parents and her parents-in-law. He had acknowledged paternity of the child to be born as early as 25 November 2003. He had also received some photos of F. at his request. 59. The applicant further argued that, in any event, his intended family life with F. was protected under Article 8, given that the child’s legal parents had prevented him from developing a close personal relationship with the boy. In such circumstances, it was sufficient for him to have shown a genuine interest in the child both before and after his birth by planning a common future with the mother and child, acknowledging paternity before the child’s birth and requesting access to and information about the child. 60. The applicant further alleged that the domestic courts had not sufficiently established the nature of the relationship between him and Mrs H. The latter had separated from and wanted to divorce her husband, who had been living with another woman. Moreover, they had failed to determine whether he was the biological father of F. despite the fact that they had considered this element relevant to the question whether there was a family relationship between him and F. This failure had also interfered with his right to respect for his private life as protected by Article 8 (the applicant referred to Nylund v. Finland (dec.), no. 27110/95, ECHR 1999 ‑ VI, and Mikulić v. Croatia, no. 53176/99, ECHR 2002 ‑ I). In his view, it was the domestic courts’ duty to determine the biological kinship in access proceedings when it was disputed by the child’s legal parents. (ii) Submissions on whether the interference was justified 61. The applicant argued that the interference with his rights under Article 8 had not been justified under paragraph 2 of that provision. In particular, it had not been “necessary in a democratic society”. 62. In the applicant’s view, the domestic courts’ interpretation and application of Article 1685 § 2 of the Civil Code had been disproportionate in that it had denied him contacts with his child without examining whether such contacts would be in the child’s best interest. On this point he referred to the Court’s judgment in the case of Anayo v. Germany (no. 20578/07, 21 December 2010), in which the Court had found that a biological father had a right to contact with his child if such contact was in the child’s best interest. In the applicant’s submission, the domestic courts had failed to weigh the different interests at stake in the proceedings and had accorded absolute predominance to the existing family unit, which was disproportionate. They had failed to take into consideration that contacts with the biological father were generally necessary for the child’s personal identity and development. 63. Thereby, the domestic courts had also failed to base their decision to deny the applicant access to and information about F. on sufficient grounds. They had taken the view that a biological father who had never seen his child should never be granted contacts with the child, irrespective of the particular circumstances of each case. However, the question of whether access was in the child’s best interest had to be determined in the circumstances of the case and could not be replaced by standardised legal assumptions. 64. The applicant further contested the Government’s argument that a comparative law analysis confirmed that the provisions of German law duly protected the right of biological fathers to contact with their children and that the children’s best interest did not warrant a different solution. He took the view that German law accorded a considerably weaker position to the biological father than the applicable provisions in the majority of the European States (see also paragraph 40 above). He argued that the findings made in a report drawn up in March 2010 at the Government’s request by the German Institute for Youth Human Services and Family Law, were not convincing and representative of the legal situation in Europe (see also paragraph 40 above). 65. Furthermore, the applicant contested the Government’s argument, based on a general psychological report by expert K. which the Government had commissioned for the proceedings in the Anayo case, that contacts with the biological father did not generally have a positive impact on the child’s well-being. He took the view that contacts between him and F. would be in F.’s best interest as he took an interest in the boy, who had a right to know his origins. Further concealing his origins might rather lead to a loss of confidence in his legal parents. As F.’s origins were known to both of his legal parents already before his birth, there was no risk that contacts between F. and the applicant would threaten the H. family or its reputation, bearing in mind that both Mr and Mrs H. had had an extra-marital relationship. (b) The Government (i) Submissions on whether there was an interference 66. The Government took the view that there had not been a violation of Article 8 of the Convention. The domestic courts’ decisions concerning the applicant’s access to and information about F. had not interfered with the applicant’s right to respect for his family life. Referring to the Court’s case ‑ law (they cited, in particular, L. v. the Netherlands, no. 45582/99, and Hülsmann v. Germany (dec.), no. 33375/03, 18 March 2008), the Government argued that mere biological kinship, without any close personal relationship, was insufficient to attract the protection of Article 8 § 1. In the present case, F. lived together with his mother and his legal father in a stable family unit. 67. Moreover, even though the Court had considered that intended family life might, exceptionally, fall within the ambit of Article 8 (the Government referred to Nylund, cited above; Nekvedavicius v. Germany (dec.), no. 46165/99, 19 June 2003; and Hülsmann, cited above), the Government argued that this was not the case in the circumstances of the present application. They stressed that it had not been proven that the applicant was the biological father of F. and that the child was part of Mrs H.’s and his plans for a common future. However, even assuming that this was the case, it was not sufficient that he had expressed willingness to take responsibility. 68. The Government further took the view that the domestic courts’ failure to establish whether the applicant was F.’s biological father had not interfered with the applicant’s right under Article 8 to respect for his family or private life. The domestic courts had assumed for the purposes of the proceedings that the applicant was F.’s biological father and had rejected his request for access to F. for lack of a social and family relationship between them. They had not been obliged to establish the applicant’s paternity in the access proceedings at issue because the applicant should have instituted separate paternity proceedings for this purpose (Article 1600 of the Civil Code, see paragraph 37 above). (ii) Submissions on whether the interference was justified 69. Even assuming that there had been an interference with the applicant’s rights under Article 8 § 1 by the refusal of the domestic courts to grant him access to F. and information about the boy’s development, that interference had been justified under Article 8 § 2. The alleged interference with the applicant’s rights had a legal basis in Articles 1685 and 1686 of the Civil Code. It served the legitimate aim of protecting the rights and freedoms of F. and his legal parents, Mr and Mrs H. 70. That interference was also necessary in a democratic society. The domestic courts had based their decision that the applicant had not established any social ties with F. that might lead to contacts between them being in the child’s best interest on relevant and sufficient reasons. They stressed that in the Anayo case (cited above) the Court had found that a man whose biological paternity was uncontested had a right to determination, by the domestic courts, whether contacts with his child were in the child’s best interest. In the present case, however, the applicant’s paternity was contested by the legal parents. To allow every man alleging to be the father of a child born in wedlock to seek to have his paternity established could seriously interfere with the rights of the members of the legal family. Moreover, such requests would not necessarily be based on the child’s best interest. It was important to bear in mind that in cases like the present one the fundamental rights of the various persons concerned had to be balanced fairly against one another. 71. The Government further took the view that the German legislator, in Articles 1592, 1594, 1600, 1684 and 1685 of the Civil Code, had balanced the competing interests involved in a manner which complied with the requirements of Article 8. A comparative law analysis confirmed that these provisions, compared to the applicable law in other European countries, duly protected the right of biological fathers to contact with their children and that the children’s best interest did not warrant a different approach. German law – which did not exclude biological fathers in all circumstances from contacts with their children but allowed such contacts only if a social and family relationship existed between biological father and child and if the contacts were in the child’s best interest – was in line with the general European standards on the matter. 72. In that connection, the Government relied on the findings of a report drawn up in March 2010 at their request by the German Institute for Youth Human Services and Family Law, analysing the access rights of biological fathers in 17 other Council of Europe Member States (see also paragraphs 40, 42 and 44-46 above; the report had already been submitted in the Anayo case, cited above). 73. Moreover, the domestic courts had fairly balanced the fundamental rights of all the individuals involved. It was of the utmost importance for the welfare of children not only to know their origins, but in particular to understand to which family they belonged and who bore responsibility for them as a mother or father. Moreover, it was justified to protect an existing family relationship between legal parents and child and the legal parents’ marriage by denying a biological father the right to obtain legal paternity. It fell within the State’s margin of appreciation to decide that the interests of the family, the mother and the child had to prevail over the competing interests of the biological father in obtaining access in cases where that father had shown willingness to take responsibility only by expressing his wish to share a future with the child he fathered. The same applied to the biological father’s claim to be informed about the child’s development. 74. The Government stressed in that context that contacts between a biological father and his children did not generally have a positive impact on the children’s welfare; it depended on the individual family situation. They referred to the findings of a general psychological report by expert K. they had commissioned for the proceedings in the Anayo case (cited above) on the question whether the provisions of the German Civil Code on contacts between biological fathers and their children were compatible with the children’s welfare. 75. The Government submitted that, according to that report, as a rule, contacts between children and the parent they were not living with became a burden for them and were thus not in their best interest if the parents involved were unable to limit their conflicts after separation. Moreover, according to the expert’s findings, the total absence of contact with a biological father did not, as a rule, affect a child’s social and emotional development. German legislation, which always gave an existing legal family precedence over biological fathers’ rights, thus guaranteed stability and was therefore in the children’s best interest. If, as the Court found in the Anayo case (cited above), the child’s best interest had to be examined in the particular circumstances of the case, the proceedings – which the alleged biological father might actually bring for reasons other than the child’s best interest – could be a burden on the legal family. (c) The third party interveners 76. In her submissions to the Court, Mrs H. contested that she had considered a divorce and had planned a common future with the applicant. She had planned to move to the United Kingdom after having finished her medical training and had met her husband regularly during the time they were living in different places. She had not planned to have a child with the applicant and stressed that her husband could also be F.’s father. She had met the applicant once a week. The applicant had been present, at his request, at two gynaecological examinations but had not been presented as her partner. Her husband had also been present at gynaecological examinations. F. was now six years old and fully integrated into the H. family. 77. Mrs H. took the view that contacts between the applicant and F. would jeopardise F.’s welfare and that of her whole family, including her husband, her daughter and another child born in 2007, and would impair the family’s good reputation. 78. The third party interveners endorsed the Government’s legal submissions. 2. The Court’s assessment (a) Whether there was an interference 79. The Court reiterates that the notion of “family life” under Article 8 of the Convention is not confined to marriage-based relationships and may encompass other de facto “family” ties where the parties are living together out of wedlock. A child born out of such a relationship is ipso jure part of that “family” unit from the moment, and by the very fact, of the birth (see Keegan v. Ireland, 26 May 1994, § 44, Series A no. 290; L. v. the Netherlands, no. 45582/99, § 35, ECHR 2004 ‑ IV; and Znamenskaya v. Russia, no. 77785/01, § 26, 2 June 2005). 80. However, a mere biological kinship between a natural parent and a child, without any further legal or factual elements indicating the existence of a close personal relationship, is insufficient to attract the protection of Article 8 (compare L., cited above, § 37). As a rule, cohabitation is a requirement for a relationship amounting to family life. Exceptionally, other factors may also serve to demonstrate that a relationship has sufficient constancy to create de facto “family ties” (see Kroon and Others v. the Netherlands, 27 October 1994, § 30, Series A no. 297 ‑ C, and L., cited above, § 36). 81. Moreover, the Court has considered that intended family life may, exceptionally, fall within the ambit of Article 8, notably in cases where the fact that family life has not yet fully been established is not attributable to the applicant (compare Pini and Others v. Romania, nos. 78028/01 and 78030/01, §§ 143 and 146, ECHR 2004-V). In particular, where the circumstances warrant it, “family life” must extend to the potential relationship which may develop between a child born out of wedlock and the natural father. Relevant factors which may determine the real existence in practice of close personal ties in these cases include the nature of the relationship between the natural parents and a demonstrable interest in and commitment by the father to the child both before and after the birth (see Nylund; Nekvedavicius; L. § 36; Hülsmann; and Anayo, all cited above; and compare Różański v. Poland, no. 55339/00, § 64, 18 May 2006). 82. The Court further reiterates that Article 8 protects not only “family” but also “private” life. It has been the Convention organs’ traditional approach to accept that close relationships short of “family life” would generally fall within the scope of “private life” (see Znamenskaya, cited above, § 27, with further references). The Court thus found in the context of proceedings concerning the establishment or contestation of paternity that the determination of a man’s legal relations with his legal or putative child might concern his “family” life but that the question could be left open because the matter undoubtedly concerned that man’s private life under Article 8, which encompasses important aspects of one’s personal identity (see Rasmussen v. Denmark, 28 November 1984, § 33, Series A no. 87; Nylund, cited above; Yildirim v. Austria (dec.), no. 34308/96, 19 October 1999; and Backlund v. Finland, no. 36498/05, § 37, 6 July 2010). 83. In the present case, the Court considers that the domestic courts’ decision to refuse the applicant access to F. and information about F.’s personal circumstances did not interfere with any existing “family life” of the applicant and F. within the meaning of Article 8. Unlike, for instance, in the case of Anayo (cited above, §§ 10, 59), it is contested and has not been established in the proceedings before the domestic courts whether the applicant is in fact F.’s biological father. In any event, there has never been a close personal relationship between him and F. such as must be regarded as an “established family life”. The applicant has never cohabited with F.– or even met him – to date. 84. The Court must therefore determine whether the applicant’s intended family life with F. falls within the ambit of Article 8. Under its well ‑ established case-law (see paragraph 81 above), this may, exceptionally, be the case in circumstances in which the fact that family life has not been established is not attributable to the applicant. This applies, in particular, to the relationship between a child born out of wedlock and the child’s biological father, who are inalterably linked by a natural bond while their actual relationship may be determined, for practical and legal reasons, by the child’s mother and, if she is married, by her husband (see also Anayo, cited above, § 60). 85. In the present case, the Court notes the Government’s argument that the applicant failed to institute separate paternity proceedings under Article 1600 § 2 of the Civil Code. In the access proceedings here at issue, the domestic courts did not determine whether the applicant – who, according to the mother, could be F.’s biological father, but so could her husband – was F.’s biological father. They found, however, that, even assuming the applicant’s biological paternity, his requests for access to and information about F. had to be rejected for lack of a social and family relationship between him and F. (see paragraphs 13, 18 and 26 above). 86. Moreover, the Court is not convinced that the applicant could have validly acknowledged paternity or have contested Mr H.’s paternity and thus have been recognised not only as F.’s biological, but also as his legal father. In that latter position, he could have claimed access to F. under the (more favourable) conditions of Article 1684 of the Civil Code, and not only, as he did, under Article 1685 of the Civil Code. Under the applicable provisions of the Civil Code, as interpreted by the domestic courts at the relevant time, the applicant’s acknowledgement of paternity on 25 November 2003 (see paragraph 9 above) was not valid as Mr H.’s paternity prevailed (Article 1594 § 2 of the Civil Code). The applicant further had no right to contest Mr H.’s paternity as the latter was living with F. (Article 1600 § 2 of the Civil Code). This is confirmed by the findings of the family courts (see paragraphs 13 and 18). In any event, in the proceedings here at issue, the applicant did not intend to take over the legal position as F.’s father from Mr H. – which is the aim of the separate paternity proceedings under Article 1600 of the Civil Code which the applicant did not institute (see on this matter the Federal Constitutional Court’s judgment, paragraph 23). 87. Furthermore, the applicant never had any contacts with F. because Mrs and Mr H., his legal parents who were entitled to decide on his contacts with other persons (see Article 1632 § 2 of the Civil Code, paragraph 31 above), refused his requests for access. In these circumstances, the Court considers that the fact that there was not yet any established family relationship between F. and the applicant cannot be held against the latter. 88. In order for the applicant’s intended family life with F. to fall within the ambit of Article 8, the Court has to determine whether there were close personal ties in practice between the applicant and F. (see paragraph 81 above). A relevant factor to verify this is the nature of the relationship between the (presumed) biological parents. Even though the applicant and Mrs H. never moved in together, it is uncontested that they had a relationship for one year and four months – which was thus not merely haphazard – at a time when Mr H. resided in the United Kingdom. 89. Moreover, the Court must have regard, in particular, to the interest in and commitment by the applicant to F. both before and after his birth. It notes in this connection that, at least from the applicant’s perspective, it was planned by him together with Mrs H. to have a child. He accompanied Mrs H. to at least two medical examinations relating to her pregnancy. He further acknowledged paternity of the child to be born already before the child’s birth. After F.’s birth, he received photos of the baby at his request and brought proceedings in which he claimed access to F. and information about his personal circumstances relatively speedily, less than six months after the child’s birth. In the circumstances of the case, in which, as shown above, the applicant was prevented from taking any further steps to assume responsibility for F. against the legal parents’ will, the Court considers that he sufficiently demonstrated his interest in F. 90. In view of the foregoing, the Court does not exclude that the applicant’s intended relationship with F. fell within the ambit of “family life” under Article 8. In any event, the determination of the legal relations between the applicant and F. – that is, whether the applicant had a right of access to F. and information about his personal circumstances –, even if they fell short of family life, concerned an important part of the applicant’s identity and thus his “private life” within the meaning of Article 8 § 1. The domestic courts’ decision to refuse him contact with and information about F. thus interfered with his right to respect, at least, for his private life (see, mutatis mutandis, Anayo, cited above, § 62). (b) Whether the interference was justified 91. Any such interference with the right to respect for one’s private life will constitute a violation of Article 8 unless it is “in accordance with the law”, pursues an aim or aims that are legitimate under paragraph 2 of that provision and can be regarded as “necessary in a democratic society”. 92. The domestic courts’ decision to refuse the applicant access to and information about F. was based on Article 1684, read in conjunction with Article 1592, Article 1685 and Article 1686 of the Civil Code. It was aimed at pursuing the best interest of a married couple, Mr and Mrs H., and of the (then two) children who were born during their marriage, who were living with them and whom they cared for, and was therefore taken to protect their rights and freedoms. 93. In determining whether the interference was “necessary in a democratic society”, the Court refers to the principles established in its case ‑ law. It has to consider whether, in the light of the case as a whole, the reasons adduced to justify that interference were relevant and sufficient for the purposes of paragraph 2 of Article 8 (see, inter alia, T.P. and K.M. v. the United Kingdom [GC], no. 28945/95, § 70, ECHR 2001 ‑ V (extracts), and Sommerfeld v. Germany [GC], no. 31871/96, § 62, ECHR 2003 ‑ VIII (extracts)). It cannot satisfactorily assess whether these reasons were “sufficient” without at the same time determining whether the decision ‑ making process, seen as a whole, was fair and provided the applicant with the requisite protection of his interests safeguarded by Article 8 (see, inter alia, T.P. and K.M. v. the United Kingdom, cited above, § 72, and Sommerfeld, cited above, § 66). Consideration of what lies in the best interest of the child concerned is of paramount importance in every case of this kind (see, inter alia, Yousef v. the Netherlands, no. 33711/96, § 73); depending on their nature and seriousness, the child’s best interest may override that of the parents (see Sommerfeld, cited above, § 66, and Görgülü v. Germany, no. 74969/01, § 43, 26 February 2004). 94. According to the Court’s well-established case-law, it must further be borne in mind that the national authorities have the benefit of direct contact with all the persons concerned. It follows from these considerations that the Court’s task is not to substitute itself for the domestic authorities in the exercise of their responsibilities regarding access issues or issues concerning information about the child’s personal development, but rather to review, in the light of the Convention, the decisions taken by those authorities in the exercise of their power of appreciation (see, inter alia, Hokkanen v. Finland, 23 September 1994, § 55, Series A no. 299 ‑ A; Görgülü, cited above, § 41; and Sommerfeld, cited above, § 62). However, restrictions placed by the domestic authorities on parental rights of access call for strict scrutiny as they entail the danger that the family relations between a young child and a parent will be effectively curtailed (see, inter alia, Elsholz v. Germany [GC], no. 25735/94, §§ 48-49, ECHR 2000 ‑ VIII; Sommerfeld, cited above, §§ 62-63; and Görgülü, cited above, §§ 41-42). The above-mentioned principles must apply also in a case like the present one, in which the refusal of contact between a biological father and his child and the refusal of information about the boy’s personal circumstances is classified, at least, as an interference with “private life” (see, mutatis mutandis, Anayo, cited above, § 66). 95. In the present case, the Court notes the domestic courts’ finding that, even assuming that the applicant was F.’s biological father, he did not fall within the group of persons who had a right of access to F. and to information about the boy’s personal circumstances. He was not F.’s legal father, or a person with whom F. had close ties because there had never been a social and family relationship between the two. As F. had lived with Mr and Mrs H. since his birth, there had been no possibility for the applicant to build up such a relationship with F. (see paragraphs 13-14, 16 ‑ 18 and 24-27 above). The domestic courts thus refused the applicant access to F. – assuming that he was F.’s father – without examining whether contact between F. and him, in the particular circumstances of the case, would be in F.’s best interest. They further refused the applicant’s request at least to be given information about F.’s personal development. There again, the domestic courts took their decision without examining in the particular circumstances of the case whether giving such information would be in the child’s best interest (for instance, in order to maintain at least a light bond with the presumed biological father) or whether, at least in this regard, the applicant’s interest had to be considered as overriding that of the legal parents. 96. In determining whether the reasons given by the domestic courts for refusing the applicant access to and information about F. were “sufficient” for the purposes of paragraph 2 of Article 8 and the interference with the applicant’s private life thus “necessary in a democratic society”, the Court refers, first, to the findings in its judgment of 21 December 2010 in the case of Anayo (cited above). That case concerned the refusal of the German courts to grant Mr Anayo, who was indisputably the biological father of twins who lived with their mother and her husband, access to his children. The Court observed, in that application, that the Court of Appeal, applying Articles 1684 and 1685 of the Civil Code, had refused the applicant access to his children without giving any consideration to the question whether, in the particular circumstances of the case, contact between the twins and the applicant would be in the children’s best interest. The domestic court had argued that the applicant did not fall within the group of persons entitled to claim access as he was not the children’s legal father, had not borne any responsibility for them and thus had no social and family relationship with them. The Court accordingly found that the domestic court had failed to fairly balance the competing rights involved. As the reasons given by it for refusing the applicant contact with his children had thus not been “sufficient” for the purposes of paragraph 2 of Article 8, Article 8 had been violated (see ibid., §§ 67-73). 97. The Court further observes that the facts at issue in the present application differ from those in the Anayo case mainly in so far as the certainty of the respective applicants’ paternity is concerned. It was uncontested in the Anayo case that the applicant was the biological father of the children concerned. In the present case, however, the mother of the boy F. acknowledged that the applicant might be F.’s father, but claimed that so might her husband, and it was not established by the domestic courts whether or not the applicant was F.’s father. 98. However, the Court considers that, in the circumstances of the case, this difference is not such as to distinguish the present application from the Anayo case. In fact, it becomes clear from the domestic courts’ reasoning that it was irrelevant for their decision that the applicant was only presumably and not uncontestedly the biological father of F. In reasoning their decisions, the domestic courts assumed the applicant’s paternity for the purposes of the proceedings (see paragraphs 13, 18 and 26). They rejected the applicant’s request for contact with (and information about) F. – as did the domestic courts in the Anayo case – because the applicant was not F.’s legal father and there had never been a social and family relationship between him and F. In both cases, the reasons why the biological father had not previously established a “social and family relationship” with the children / child concerned had been irrelevant for the domestic courts’ findings. The courts thus did not give any weight to the fact that the respective applicants, for legal and practical reasons, were unable to alter the relationship with the children / child concerned (see Anayo, cited above, §§ 67, 69 and paragraphs 14, 17-18 and 26 above). 99. The Court would reiterate in that connection that it is for the domestic courts, who have the benefit of direct contact with all the persons concerned, to exercise their power of appreciation in determining whether or not contacts between a biological father and his child are in the latter’s best interest. It has further noted the Government’s argument, by reference to the comparative law analysis and the general psychological expert report of expert K. they had submitted to the Court, that the German legislation applied by the courts in the present case was in the best interest of the children concerned. They had further argued that always giving an existing legal family precedence over biological fathers’ rights guaranteed stability, whereas examining the child’s best interest in the particular circumstances of the case brought the burden of the proceedings to bear on the legal family (see paragraph 75 above). 100. The Court cannot but confirm, however, its approach taken in the Anayo judgment (cited above, §§ 67-73), as well as in the case of Zaunegger v. Germany (no. 22028/04, §§ 44 et seq., 3 December 2009, which concerned the general exclusion from judicial review of the attribution of sole custody to the mother of a child born out of wedlock; the domestic courts, applying the relevant provisions of the Civil Code, also considered parental rights of a father prima facie not to be in the child’s best interest, without further examination on the merits). Having regard to the realities of family life in the 21 st century, revealed, inter alia, in the context of its own comparative law research (see paragraphs 38-46 above), the Court is not convinced that the best interest of children living with their legal father but having a different biological father can be truly determined by a general legal assumption. Consideration of what lies in the best interest of the child concerned is, however, of paramount importance in every case of this kind (see paragraph 93 above). Having regard to the great variety of family situations possibly concerned, the Court therefore considers that a fair balancing of the rights of all persons involved necessitates an examination of the particular circumstances of the case. It further had regard to the Government’s argument that this approach involved proceedings which placed a burden on the legal family (see paragraph 75 above). The Court notes, however, that proceedings requesting access to children may be and are in practice already currently instituted by biological fathers. 101. Having regard to the foregoing, the Court further concludes that the Government’s objection that the applicant, by failing to institute separate paternity proceedings, did not exhaust domestic remedies in relation to his complaint that the domestic courts failed to establish his paternity of F. must be rejected for the following reasons. 102. The Court is not convinced that separate paternity proceedings were an effective remedy the applicant had to exhaust in the access and information proceedings here at issue. Not only were such proceedings bound to fail on the basis of the existing domestic law, the applicant having no right to contest Mr H.’s paternity as the latter was living with F. (Article 1600 § 2 of the Civil Code, see paragraph 37 above), but they are aimed at obtaining status as a child’s legal parent and terminating another man’s legal paternity, and must therefore be considered to have a fundamentally different and more far-reaching objective than the mere establishment of biological paternity for the purposes of having contact with the child concerned and information about that child’s development. 103. The Court notes in this connection the Government’s argument that there was a danger of abuse in allowing every man alleging to be the father of a child born in wedlock to request to have his paternity established (see paragraph 70 above). It does not consider, however, that its finding that the domestic courts failed to examine, in the particular circumstances of the case, whether contacts between F. and the applicant would have been in F.’s best interest would have led to such a result. The question of establishment, in access proceedings, of biological – as opposed to legal – paternity will only arise if, in the special circumstances of the case, contacts between the alleged biological father – presuming that he is in fact the child’s biological parent – and the child are considered to be in the child’s best interest. 104. Having regard to the foregoing, the Court, referring, mutatis mutandis, to the detailed reasoning in its judgment in the case of Anayo (§§ 67-73), therefore considers that the domestic courts did not fairly balance the competing interests involved in the decision-making process and thus failed to provide the applicant with the requisite protection of his interests safeguarded by Article 8. They failed to give any consideration to the question whether, in the particular circumstances of the case, contact between F. and the applicant would be in F.’s best interest. They further did not examine whether, in the particular circumstances of the case, allowing the applicant’s request to be given at least information about F.’s personal development would be in the child’s best interest or whether, at least in this regard, the applicant’s interest should have been considered as overriding that of the legal parents. They thus did not give sufficient reasons to justify their interference for the purposes of paragraph 2 of Article 8. The interference with the applicant’s right to respect for his private life was therefore not “necessary in a democratic society”. 105. There has accordingly been a violation of Article 8 of the Convention. II. COMPLAINT CONCERNING DISCRIMINATION 106. The applicant further complained that the domestic courts’ decisions discriminated against him in his right of access and information compared to fathers of children born in or out of wedlock, mothers, grandparents and siblings. He relied on Article 8, read in conjunction with Article 14 of the Convention; the latter provides: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” 107. The Government contested that argument. 108. The Court refers to its above findings that the applicant’s rights under Article 8 were violated. The domestic courts failed to give any consideration to the question whether, in the particular circumstances of the case, contact between F. and the applicant was in F.’s best interest. They further failed to examine whether allowing the applicant’s request at least to be given information about F.’s personal development was in the child’s best interest or in the applicant’s overriding interest. The interference with the applicant’s right to respect for his private life was therefore not “necessary in a democratic society” (see paragraphs 91-105 above). Having regard to this conclusion, it does not consider it necessary to determine whether the domestic courts’ decisions thereby discriminated against the applicant in breach of Article 8 read in conjunction with Article 14 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 109. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 110. The applicant claimed not less than 25,000 euros (EUR) in respect of non-pecuniary damage. He had suffered distress as a result of the domestic courts’ refusal of any contacts with his son or information about his development. 111. The Government took the view that there was no room for an award in respect of non-pecuniary damage as it had not been proven that the applicant was F.’s father. In any event, the applicant’s claim was excessive. 112. The Court considers that the domestic courts’ decision not to grant the applicant access to F. and information about his development without examining the question whether, in the particular circumstances of the case, such contact was in F.’s best interest or in the applicant’s overriding interest must have caused the applicant some distress which is not adequately compensated by the finding of a violation alone. Making an assessment on an equitable basis, it therefore awards the applicant EUR 5,000, plus any tax that may be chargeable, under this head. B. Costs and expenses 113. Submitting documentary evidence (including all bills and agreements as to the fees), the applicant also claimed a total of EUR 12,354.39 (including VAT) for the costs and expenses incurred, including EUR 6,387.18 for the costs and expenses before the domestic courts (Fulda District Court, Frankfurt am Main Court of Appeal and Federal Constitutional Court) and EUR 4,279.89 for those incurred before the Court (that is, a total of EUR 10,667.07). 114. The Government argued that it was not in a position to examine, on the basis of the documents submitted by the applicant, whether the costs and expenses claimed by the applicant had been necessarily incurred and were reasonable as to quantum. 115. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court finds that the costs and expenses for the proceedings before the domestic courts were aimed at redressing the breach of the applicant’s rights under Article 8. Having regard also to the documents submitted by the applicant, it considers it reasonable to award the sum of EUR 10,000 (including VAT) covering costs and expenses under all heads, plus any tax that may be chargeable to the applicant. C. Default interest 116. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention. It found that the fact that there was no “family life” – it had not been established that the applicant was in fact the child’s biological father and there had never been any close personal relationship between them – could not be raised against the applicant. The question whether he had a right of access or of information in respect of the child, even in the absence of family life, concerned a significant part of his identity and therefore of his “private life”. |
766 | Access to experimental treatment or drug | II. RELEVANT DOMESTIC LAW A. The Constitution 19. Article 52 of the Constitution of 1991 provides, in so far as relevant: “1. Citizens shall be entitled to medical insurance guaranteeing them affordable health care, and to free health care under the conditions and in the manner provided for by law ... 3. The State shall protect the health of all citizens ... 4. No one may be subjected to forcible medical treatment or sanitary measures, except in cases provided for by law. 5. The State shall exercise control over all health care establishments and over the production of and trade in medicines, biologically active substances and medical equipment.” 20. In a decision of 22 February 2007 (реш. № 2 от 22 февруари 2007 г. по к. д. № 12 от 2006 г., обн., ДВ, бр. 20 от 6 март 2007 г.) the Constitutional Court said that unlike classic fundamental rights, such as the rights to life, freedom and security, private life, freedom of thought and of religion, the rights under Article 52 § 1 of the Constitution were social rights. They could not be directly enforced by the courts, and required State action to put them into effect. For that reason, the Constitution specified that health care was to be carried out in a manner provided for by law. B. The Medicinal Products in Human Medicine Act 2007 and related regulations 21. Medicinal products in human (as opposed to veterinary) medicine are regulated by the Medicinal Products in Human Medicine Act 2007 ( Закон за лекарствените продукти в хуманната медицина ). Section 3(1) of that Act, which echoes Article 1 § 2 of Directive 2001/83/EC (see paragraph 44 below), defines a “medicinal product in human medicine” as (a) any substance or combination of substances presented as having properties for treating or preventing disease in human beings, or (b) any substance or combination of substances which may be used in or administered to human beings, with a view either to restoring, correcting or modifying physiological functions by exerting a pharmacological, immunological or metabolic action, or to making a medical diagnosis. Section 3(2), which echoes Article 1 § 3 of the Directive, in turn defines “substance” as any matter whose origin may be human (human blood, human blood products, and so on), animal (microorganisms, animal organs, extracts, secretions, toxins, blood products, and so on), vegetable (microorganisms, plants, parts of plants, vegetable extracts, secretions, and so on), chemical (elements, naturally occurring chemical materials and chemical products obtained by chemical change or synthesis, and so on). 22. Section 7(1) of the Act lays down the general rule that only medicinal products which have been authorised, either in Bulgaria or under the European Union centralised authorisation procedure under Regulation (EC) no. 726/2004 (see paragraph 48 below), may be produced, imported, traded in, advertised, or used for medical treatment, prophylaxis or diagnostics. 23. The following sections set out certain exceptions to that rule. Section 8 provides that no authorisation is required in respect of, in particular, (a) medicinal products prepared in a pharmacy in accordance with a medical prescription for an individual patient (the magistral formula); (b) medicinal products prepared in a pharmacy in accordance with the prescriptions of a pharmacopoeia (the officinal formula); and (c) medicinal products for “high ‑ technology therapy” prepared for an individual patient in accordance with the individualised specifications of a medical doctor and for use in a health-care institution under the doctor’s direct personal responsibility. Section 10(1) empowers the Minister of Health to allow, under certain conditions, treatment with an unauthorised medicinal product in the event of an epidemic or of a chemical or nuclear contamination, if there is no suitable authorised medicinal product. Section 11(1) empowers the Minister to allow, under certain conditions, the use of a product which has not been authorised in Bulgaria but has been authorised in another Member State of the European Union. 24. Section 9(1) provides that a patient may be treated with a medicinal product which has not been authorised if a hospital makes a request to that effect. The method and criteria for doing so are to be laid down in regulations by the Minister of Health. 25. The regulations governing that issue at the time when the applicants made their requests to be allowed to use MBVax Coley Fluid were Regulations no. 2 of 10 January 2001 ( Наредба № 2 от 10 януари 2001 г. за условията и реда за лечение с неразрешени за употреба в Република България лекарствени продукти ). They superseded Regulations no. 18 of 28 June 1995 ( Наредба № 18 от 28 юни 1995 г. за условията и реда за лечение с нерегистрирани лекарствени средства ). Both of those regulations had been issued under section 35(3) of the Medicines and Pharmacies in Human Medicine Act 1995 ( Закон за лекарствата и аптеките в хуманната медицина ), superseded by the 2007 Act, which provided that medicinal products needed for the treatment of diseases having specific symptoms, when treatment with authorised medicinal products had proved fruitless, were to be exempted from authorisation under criteria and by methods laid down by the Minister of Health. 26. Regulation 2 of Regulations no. 2 provided that medicinal products which had not been authorised in the country could be prescribed if they had been authorised in other countries and were intended for the treatment of rare diseases or diseases having specific symptoms, when treatment with authorised medicinal products had proved fruitless. 27. Similar requirements had been laid down in Regulation 1 of Regulations no. 18. Under that provision, medicinal products not registered in Bulgaria could be used only if registered in other countries and if the disease that they were intended to treat could either not be treated with products registered in Bulgaria or such treatment had proved fruitless. 28. The procedure under Regulations no. 2 was as follows. A panel of three medical doctors appointed by the head of a hospital (one of the doctors being a specialist in the treatment of the disease in issue) was to prescribe the unauthorised product (Regulation 3(1) and 3(2)). The prescription could not cover a period of more than three months (Regulation 3(4)). After that the prescription was to be approved by the head of the hospital (Regulation 3(3)) and sent to the Medicines Executive Agency, along with a declaration by the patient (or his or her parent or guardian, as the case might be) that he or she agreed to be treated with the unauthorised product (Regulation 4(2)). The Medicines Executive Agency had ten working days to decide whether to grant permission. If the relevant requirements had not been met, the Agency would issue a negative decision, which could be appealed against within seven days to the Minister of Health, who had seven days to decide the appeal (regulation 5(1)). 29. If the need for an unauthorised life ‑ saving product arose in a health-care institution other than a hospital, the head of that institution could draw up a document specifying the product and the required quantity and, having obtained the assent of the Medicines Executive Agency, apply for permission to the Minister of Health. The Minister could then make a decision specifying the product, the quantity and its recipients (Regulation 8(1)). 30. On 6 December 2011 Regulations no. 2 were superseded by Regulations no. 10 of 17 November 2011 ( Наредба № 10 от 17 ноември 2011 г. за условията и реда за лечение с неразрешени за употреба в Република България лекарствени продукти, както и за условията и реда за включване, промени, изключване и доставка на лекарствени продукти от списъка по чл. 266а, ал. 2 от Закона за лекарствените продукти в хуманната медицина ). 31. Regulation 1(2) provides that only medicinal products which can be prescribed by a doctor in another country can be authorised for use under the Regulations. Regulation 2(1) provides that medicinal products intended for use by an individual patient may be prescribed if they are authorised in other countries and treatment with medicinal products authorised in Bulgaria is impossible or has failed. Regulation 3(1) provides that hospitals may also obtain unauthorised medicinal products if those have been made available under “international and national programmes” or by an international organisation which is the only entity in a position to procure those products. 32. The procedure under Regulations no. 10 is as follows. A panel of three medical doctors appointed by the head of the hospital (one of the doctors being a specialist in the treatment of the disease in issue) must prescribe the unauthorised product (regulations 4, 5(1) and 6(1)). The prescription must be accompanied by the written informed consent of the patient (or his or her parent or guardian, as the case may be) (Regulations 5(2) and 6(4)), and cannot cover a period of more than three months (Regulations 5(3) and 6(2)). The prescription must then be approved by the head of the hospital (Regulation 7(1)). After that the Medicines Executive Agency must either grant permission or issue a reasoned refusal (Regulation 8(1)). It must issue a refusal if the form of the prescription or the medicinal products at issue do not meet the requirements of the Regulations (Regulation 8(2)). Refusal by the Agency is subject to appeal and judicial review (Regulation 8(3)). 33. On 21 July 2011 Parliament added a new section, 266a, to the 2007 Act. It came into force on 5 August 2011 and provides, in subsection 1, that where it is not possible to treat a disease with medicinal products available in the country, an individual patient may be treated with a product which has been authorised in another member State of the European Union and under the Act, but is not on the market in Bulgaria. The Minister of Health must keep a list of such products and update it annually (subsection 2). The explanatory notes to the amending Bill referred to the need to allow Bulgarian patients access to authorised medicines which are not available on the Bulgarian market but which are available in other member States of the European Union. 34. There is no reported case ‑ law under any of the three successive regulations (Regulations no. 18, Regulations no. 2 and Regulations no. 10). C. The Code of Administrative Procedure 2006 35. Under the Code of Administrative Procedure 2006, individual administrative decisions may be challenged before a court by those affected by them, on grounds of unlawfulness (Articles 145 § 1 and 147 § 1). There is no general requirement to first exhaust administrative remedies (Article 148). 36. Statutory instruments, such as regulations, may also be challenged before the Supreme Administrative Court (Articles 185 § 1 and 191 § 1). Any individual or organisation whose rights, freedoms or legal interests have been or could be affected by such an instrument may do so (Article 186 § 1). The court’s decision has erga omnes effect (Article 193 § 2). If a court strikes down a statutory instrument, it is deemed repealed from the date on which the court’s decision becomes final (Article 195 § 1). D. Case ‑ law provided by the Government 37. In a decision of 11 December 2008 (реш. № 13627 от 11 декември 2008 г. по адм. д. № 11799/2008 г., ВАС, петчл. с.) the Supreme Administrative Court struck down regulations which required telephony and internet service providers to give the Ministry of Internal Affairs “passive” technical access to the communications data they were storing. The court held that, in not laying down any conditions or procedures for the grant of such access, the regulations enabled disproportionate interference with the rights protected under Article 32 (private life) and Article 34 (correspondence and communications) of the 1991 Constitution and under Article 8 of the Convention, whereas it was obligatory for any such interference to be made subject to appropriate safeguards against abuse. The court went on to say that the regulations ran counter to various provisions of Directive 2006/24/EC on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks, and amending Directive 2002/58/EC. 38. In decisions of 25 March and 21 April 2011 (реш. № 384 от 25 март 2011 г. по адм. д. № 1739/2009 г., БАС; реш. № 701 от 21 април 2011 г. по адм. д. № 660/2011 г., ПАС) the Burgas and Plovdiv administrative courts set aside international travel bans imposed on account of unpaid judicially established debts. In doing so the courts held that the provisions of Bulgarian law under which those bans had been ordered ran counter to Article 27 of Directive 2004/38/EC on the right of citizens of the European Union and their family members to move and reside freely within the territories of the member States. Just before that, on 22 March 2011, the Supreme Administrative Court had held, in a binding interpretive decision (тълк. р. № 2 от 22 март 2011 г. по т. д. № 6/2010 г., ВАС, ОСК), that such bans should be set aside if in breach of the Directive. 39. In a decision of 17 May 2010 (реш. от 17 май 2010 г. по адм. д. № 206/2010 г., МАС, І с.) the Montana Administrative Court set aside an order for the removal of an alien who had come to Bulgaria at a very young age and had lived in the country with his family for a number of years. The court held that the order, which had not taken into account the alien’s family situation and level of integration in the country, and corresponding lack of ties with the country to which he was to be removed, had been disproportionate. To reach that conclusion the court had relied not only on the relevant provisions of Bulgarian law, but also on Article 8 of the Convention and on Article 78 § 1 of the Treaty on the Functioning of the European Union and Articles 16, 20 and 21 of Directive 2003/109/EC, concerning the status of third ‑ country nationals who are long ‑ term residents. 40. In decisions of 29 June 2010 and 9 March 2012 (опр. № 14 от 29 юни 2010 г. по ч. к. а н. д. № 162/2010 г., ХАС, ІІ к. с.; опр. № 10 от 9 март 2012 г. по к. н. а. х. д. № 117/2012 г., КАС) the Haskovo and Kyustendil administrative courts quashed the lower courts’ decisions to discontinue proceedings for judicial review of fines imposed by the authorities in respect of administrative offences (which had been excluded from judicial review by statute). The courts relied on Article 6 § 1 of the Convention and the Court’s judgments in the cases of Öztürk v. Germany (21 February 1984, Series A no. 73), and Lauko v. Slovakia (2 September 1998, Reports of Judgments and Decisions 1998 ‑ VI). E. The rights of patients 41. A patient – defined as any person who has asked for or who is being given medical treatment (section 84(1) of the Health Act 2004) – has the right to, inter alia, (a) respect for his or her civil, political, economic, social, cultural and religious rights; (b) clear and accessible information on his or her state of health and methods of treatment, if any; (c) security and safety of the diagnostic and treatment procedures used for his or her treatment; and (d) access to modern methods of treatment (section 86(1)(1), (1)(8), (1)(10) and (1)(11) of the same Act). Section 87(1) of the Act lays down the general rule that medical procedures may be carried out only with the patient’s informed consent. In order to obtain such consent, the medical doctor responsible for the patient’s treatment has to inform the patient of (a) the diagnosis and character of the disease; (b) the aims and the nature of the proposed treatment, reasonable alternatives which may be available, the expected results and the prognosis; (c) the potential risks of the diagnostic and proposed treatment methods, including side effects and adverse reactions, pain or other difficulties; and (d) the likelihood of positive effects, as well as the risks to health of other methods of treatment or a refusal to submit to treatment (section 88(1)). All this information must be given in an appropriate volume and form, so as to ensure freedom of choice of treatment (section 88(2)). In the event of surgical intervention, general anaesthesia or other diagnostic or treatment methods which entail a heightened level of risk to life or health, this information, as well as the patient’s informed consent, must be in writing (section 89(1)). F. Regulation of the medical profession 42. The Medical Institutions Act 1999 governs, inter alia, the registration and licensing of medical institutions. Under section 39(1), institutions for non ‑ hospital care and hospices are subject to registration, which has to be carried out by the health inspectorate with territorial jurisdiction (section 40(1)). Under section 46(1), hospitals, complex oncological centres, and some other institutions which are not relevant to the present case, are subject to licensing. These licences are issued by the Minister of Health (section 46(2)). Medical institutions can carry out their activities only if they have been registered or licensed, as the case may be (section 3(3)). Their medical activities are subject to monitoring by the authorities (section 4(3)). 43. Practising medical professionals must have an appropriate degree (section 183(1) and (2) of the Health Act 2004), and must be registered members of a professional association (section 183(3)). III. RELEVANT EUROPEAN UNION LAW 44. In the European Union, a medicinal product may as a rule be placed on the market only when authorised, either via the “centralised authorisation procedure” or under national procedures (there are detailed rules as to which products must or may go through the centralised procedure). The relevant provision, Article 6(1) of Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use, as amended, provides as follows: “No medicinal product may be placed on the market of a Member State unless a marketing authorisation has been issued by the competent authorities of that Member State in accordance with this Directive or an authorisation has been granted in accordance with Regulation (EC) No 726/2004, read in conjunction with Regulation (EC) No 1901/2006 of the European Parliament and of the Council of 12 December 2006 on medicinal products for paediatric use and Regulation (EC) No 1394/2007.” 45. There are, however, exceptions to this rule, such as the possibility of obtaining an unauthorised medicinal product via “individual patient use”, “compassionate use” or “off ‑ label use”. Article 5(1) of the above ‑ mentioned Directive, which reproduced wording first introduced in 1989 by the now-repealed Directive 89/341/EEC, governs “individual patient use”. It reads as follows: “A Member State may, in accordance with legislation in force and to fulfil special needs, exclude from the provisions of this Directive medicinal products supplied in response to a bona fide unsolicited order, formulated in accordance with the specifications of an authorised health ‑ care professional and for use by an individual patient under his direct personal responsibility.” 46. The case of European Commission v. the Republic of Poland (Court of Justice of the European Union, C ‑ 185/10) concerned the interpretation of those provisions. Poland argued that its domestic law complied with the derogation envisaged by Article 5(1) of Directive 2001/83/EC. In a judgment of 29 March 2012, the Court of Justice held that by allowing the importation and placing on the market of unauthorised medicinal products which were cheaper than, and similar to, products already authorised in Poland, the State had failed to fulfil its obligations under Article 6 of the Directive. In relation to the construction to be put on the derogation provided for under Article 5(1) of the Directive, it held as follows: “30 As is apparent from the wording of that provision, implementation of the derogation for which it provides is conditional on fulfilment of a set of cumulative conditions. 31 In order to interpret that provision, it must be taken into account that, generally, provisions which are in the nature of exceptions to a principle must, according to settled case ‑ law, be interpreted strictly (see in particular, to this effect, Case C ‑ 3/09 Erotic Center [2010] ECR I ‑ 2361, paragraph 15 and the case ‑ law cited). 32 More specifically, as regards the derogation referred to in Article 5(1) of Directive 2001/83, the Court has already pointed out that the possibility of importing non ‑ approved medicinal products, provided for under national legislation implementing the power laid down in that provision, must remain exceptional in order to preserve the practical effect of the marketing authorisation procedure (see, to this effect, Case C ‑ 143/06 Ludwigs ‑ Apotheke [2007] ECR I ‑ 9623, paragraphs 33 and 35). 33 As the Advocate General stated in point 34 of his Opinion, the power, which arises from Article 5(1) of Directive 2001/83, to exclude the application of the directive’s provisions can be exercised only if that is necessary, taking account of the specific needs of patients. A contrary interpretation would conflict with the aim of protecting public health, which is achieved through the harmonisation of provisions relating to medicinal products, particularly those relating to the marketing authorisation. 34. The concept of ‘special needs’, referred to in Article 5(1) of that directive, applies only to individual situations justified by medical considerations and presupposes that the medicinal product is necessary to meet the needs of the patient. 35 Also, the requirement that medicinal products are supplied in response to a ‘bona fide unsolicited order’ means that the medicinal product must have been prescribed by the doctor as a result of an actual examination of his patients and on the basis of purely therapeutic considerations. 36. It is apparent from the conditions as a whole set out in Article 5(1) of Directive 2001/83, read in the light of the fundamental objectives of that directive, and in particular the objective seeking to safeguard public health, that the derogation provided for in that provision can only concern situations in which the doctor considers that the state of health of his individual patients requires that a medicinal product be administered for which there is no authorised equivalent on the national market or which is unavailable on that market.” 47. Separately, Article 126a of the Directive permits a member State to allow a medicinal product authorised in another member State to be placed on its market, under certain conditions. Paragraph 1 of that Article reads: “In the absence of a marketing authorisation or of a pending application for a medicinal product authorised in another Member State in accordance with this Directive, a Member State may for justified public health reasons authorise the placing on the market of the said medicinal product.” Further conditions are laid down in paragraphs 2 and 3. 48. A further exception to the general prohibition laid down in Article 6(1) of Directive 2001/83/EC is contained in Article 83 of Regulation (EC) no. 726/2004 of the European Parliament and of the Council of 31 March 2004, laying down Community procedures for the authorisation and supervision of medicinal products for human and veterinary use and establishing a European Medicines Agency. 49. Recital 33 of the Regulation says, in so far as relevant: “In order to meet, in particular, the legitimate expectations of patients and to take account of the increasingly rapid progress of science and therapies ... [i]n the field of medicinal products for human use, a common approach should also be followed, whenever possible, regarding the criteria and conditions for the compassionate use of new medicinal products under Member States’ legislation.” 50. Article 83 of the Regulation provides: “1. By way of exemption from Article 6 of Directive 2001/83/EC Member States may make a medicinal product for human use belonging to the categories referred to in Article 3(1) and (2) of this Regulation [medicinal products to be authorised either mandatorily or optionally via the centralised authorisation procedure, listed in an annex to the Regulation] available for compassionate use. 2. For the purposes of this Article, ‘compassionate use’ shall mean making a medicinal product belonging to the categories referred to in Article 3(1) and (2) available for compassionate reasons to a group of patients with a chronically or seriously debilitating disease or whose disease is considered to be life ‑ threatening, and who can not be treated satisfactorily by an authorised medicinal product. The medicinal product concerned must either be the subject of an application for a marketing authorisation in accordance with Article 6 of this Regulation or must be undergoing clinical trials. 3. When a Member State makes use of the possibility provided for in paragraph 1 it shall notify the Agency. 4. When compassionate use is envisaged, the Committee for Medicinal Products for Human Use, after consulting the manufacturer or the applicant, may adopt opinions on the conditions for use, the conditions for distribution and the patients targeted. The opinions shall be updated on a regular basis. 5. Member States shall take account of any available opinions. 6. The Agency shall keep an up ‑ to ‑ date list of the opinions adopted in accordance with paragraph 4, which shall be published on its website. Article 24(1) and Article 25 shall apply mutatis mutandis. 7. The opinions referred to in paragraph 4 shall not affect the civil or criminal liability of the manufacturer or of the applicant for marketing authorisation. 8. Where a compassionate use programme has been set up, the applicant shall ensure that patients taking part also have access to the new medicinal product during the period between authorisation and placing on the market. 9. This Article shall be without prejudice to Directive 2001/20/EC [the Clinical Trials Directive] and to Article 5 of Directive 2001/83/EC.” 51. In July 2007 the European Medicines Agency adopted a Guideline on compassionate use of medicinal products pursuant to the said Article 83 (EMEA/27170/2006). It states that the implementation of compassionate use programmes remains within the competence of a member State, that Article 83 is complementary to national legislations, and that the existence of Community authorisation for a medicinal product is without prejudice to any national legislation relating to compassionate use. The guideline goes on to specify that the objectives of Article 83 are threefold: (a) to facilitate and improve access for patients in the European Union to compassionate-use programmes; (b) to favour a common approach regarding the conditions of use, the conditions for distribution and the patients at whom the compassionate use of unauthorised new medicinal products is directed; and (c) to increase transparency between member States in terms of availability of treatments. It also makes it clear that Article 83 is not applicable to products which are not eligible for the centralised authorisation procedure, nor to compassionate use on a named ‑ patient basis, as envisaged in Article 5 of Directive 2001/83/EC (see paragraph 45 above). 52. The European Medicines Agency has so far given two opinions under Article 83 paragraph 4 of the Regulation. The first, given on 20 January 2010 in respect of Finland, concerned the product IV Tamiflu. The second, given on 18 February 2010 in respect of Sweden, concerned the product IV Zanamivir. 53. A guideline drawn up by the European Commission pursuant to Article 106 of Directive 2001/83/EC and Article 24 of Regulation (EEC) no. 2309/93, and entitled ‘Volume 9A – Guidelines on Pharmacovigilance for Medicinal Products for Human Use ’, states the following: “ 5.7. Reporting from Compassionate/Named ‑ patient use Compassionate or named ‑ patient use of a medicine should be strictly controlled by the company responsible for providing the medicine and should ideally be the subject of a protocol. Such a protocol should ensure that the Patient is registered and adequately informed about the nature of the medicine and that both the prescriber and the Patient are provided with the available information on the properties of the medicine with the aim of maximising the likelihood of safe use. The protocol should encourage the prescriber to report any adverse reactions to the company, and to the Competent Authority, where required nationally. Companies should continuously monitor the risk ‑ benefit balance of medicines used on compassionate or named ‑ patient basis (subject to protocol or not) and follow the requirements for reporting to the appropriate Competent Authorities. As a minimum, the requirements laid down in Chapter I.4, Section 1 [Requirements for Expedited Reporting of Individual Case Safety Reports] apply. For inclusion of experience from compassionate or named ‑ patient use in Periodic Safety Update Reports, see Chapter I.6 [Requirements for Periodic Safety Update Reports].” III. RELEVANT COMPARATIVE MATERIAL A. Rules governing access to unauthorised medicinal products 1. In some Contracting States 54. In November 2010 the European Clinical Research Infrastructures Network published a survey of “compassionate use” programmes in ten European countries: Austria, Denmark, France, Germany, Ireland, Italy, Spain, Sweden, Switzerland and the United Kingdom (‘ Whitfield et al : Compassionate use of interventions: results of a European Clinical Research Infrastructures Network (ECRIN) survey of ten European countries. Trials 2010 11:104.’). It found that with one exception (Hungary) the laws of all the countries surveyed made provision for compassionate use/expanded access programmes. However, it also showed that those programmes had more differences than similarities. Some countries were without formal regulatory systems, and, for those who had adopted rules, they varied in content and comprehensiveness. For instance, some countries allowed “compassionate use” solely on a “named/individual patient” basis. The contents and requirements of the application for permission also varied. The survey called for European Union legislation to be more explicit with regard to regulatory requirements, restrictions and responsibilities in that area. 55. On the basis of more recent material available to the Court in respect of twenty ‑ nine Contracting States, it appears that twenty ‑ two States (Austria, the Czech Republic, Croatia, Estonia, France, Finland, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Malta, the Netherlands, Poland, Romania, Serbia, Slovenia, Spain, Turkey and the United Kingdom) have in place rules, often adopted quite recently, allowing access to unauthorised medicinal products outside clinical trials for certain patients, notably for those who are terminally ill. The matter appears to be regulated in both primary and delegated legislation. In addition, in two States (Sweden and Russia) access to such products appears to be possible despite the absence of specific rules. Five States (Albania, Cyprus, Moldova, Montenegro and Ukraine) appear not to have in place rules allowing access to unauthorised medicinal products outside clinical trials. However, in two of those (Albania and Ukraine) domestic law appears to contain somewhat unclear provisions, which could be interpreted as allowing access. At the same time, there is a variety of practices among States as regards the type of access provided and the procedure to be followed. For instance, it appears that in four States (Croatia, Lithuania, Poland and Romania), access to unauthorised medicinal products is possible only if those products have been authorised in another jurisdiction. Seven States appear to allow access only for individual patients, and fifteen States allow access for both individual patients and groups (or cohorts). The procedures for individuals and groups tend to vary, with the conditions attaching to group access being more stringent. 2. In other States 56. In the United States of America, regulations were issued in May 1987 laying down conditions under which promising new drugs that had not yet been licensed could be made available to persons with serious and life-threatening illnesses for whom no comparable or satisfactory alternative drug or treatment was available. Those regulations were revised and expanded in 2009. They are currently contained in the Code of Federal Regulations, Title 21, Part 312, Subpart I (Expanded Access to Investigational Drugs for Treatment Use), §§ 312.300 ‑ 320, and make provision for an “expanded access” programme, under which the Food and Drug Administration (“the FDA”) may, under certain conditions, authorise the use of an “investigational new drug” in respect of patients suffering from “a serious or immediately life ‑ threatening disease or condition, [when] there is no comparable or satisfactory alternative therapy to diagnose, monitor, or treat the disease or condition” (21 CFR 312.305(a)(1)). The general criteria governing the FDA’s decision are whether “[t]he potential patient benefit justifies the potential risks of the treatment use and those potential risks are not unreasonable in the context of the disease or condition to be treated” and whether “[p]roviding the investigational drug for the requested use will not interfere with the initiation, conduct, or completion of clinical investigations that could support marketing approval of the expanded access use or otherwise compromise the potential development of the expanded access use” (21 CFR 312.305(a)(2) and (3)). The regulations contain separate provisions for individual patients, including for emergency use (21 CFR 312.310), intermediate ‑ size patient populations (21 CFR 312.315), and widespread treatment use (21 CFR 312.320). 57. In Canada, sections C.08.010 and C.08.011 of the Food and Drug Regulations make provision for a “special access programme” allowing medical practitioners to request access to drugs that are unavailable for sale in Canada for the treatment of patients with serious or life ‑ threatening conditions on a compassionate or emergency basis when conventional treatments have failed, are unsuitable, or are unavailable. 58. In Australia, the Therapeutic Goods Administration of the Department of Health and Ageing runs a “special access scheme”, which allows, under certain conditions, the importation or supply of an unlicensed medicine for a single patient, on a case by case basis (section 18 of the Therapeutic Goods Act 1989 and Regulation 12A of the Therapeutic Goods Regulations 1990). B. Relevant case ‑ law 1. In the United States of America 59. In the case of United States v. Rutherford, 442 U.S. 544 (1979), the United States Supreme Court unanimously dismissed a request by terminally ill cancer patients to enjoin the authorities from interfering with the distribution of an unlicensed drug. The court held that the statutory scheme governing drug licensing did not contain an implicit exemption for drugs intended for use by the terminally ill. In its view, the safety and effectiveness standards laid down in the legislation applied equally to such drugs, because the legislature could be regarded as intending to protect terminal patients from ineffectual or unsafe drugs. For such patients, as for anyone else, a drug was unsafe if its potential to cause death or physical injury was not offset by the possibility of therapeutic benefit. In relation to terminally ill people, unlicensed drugs carried a further risk, namely that the individuals concerned might eschew conventional therapy in favour of a drug with no demonstrable curative properties, with potentially irreversible consequences. In that connection the court noted, on the basis of expert evidence presented to it, that with diseases such as cancer it was often impossible to identify a patient as terminally ill other than in retrospect. It went on to say that acceptance of the proposition that statutory safety and efficacy standards have no relevance for terminal patients would be tantamount to denying the authorities’ power to regulate any drugs, however toxic or ineffective, for such individuals, which would allow abusive marketing of many purportedly simple and painless cures. Lastly, the court observed that its ruling did not exclude all resort to experimental cancer drugs by patients for whom conventional therapy was inefficacious, because the statutory scheme exempted from pre-marketing approval drugs intended solely for investigative use if they satisfied certain pre-clinical testing and other criteria. 60. In the more recent case of Raich v. Gonzales, in a decision of 14 March 2007 (500 F.3d 850) the United States Court of Appeals for the Ninth Circuit held, inter alia, that, as things stood, there was no right under the due process clause of the United States Constitution to use medical marijuana on a physician’s advice, to preserve bodily integrity, avoid intolerable pain, and preserve life, even when all other prescribed medications and remedies had failed. 61. In the case of Abigail Alliance for Better Access to Developmental Drugs et al. v. von Eschenbach et al., in a decision of 2 May 2006 (445 F.3d 470) a three ‑ member panel of the United States Court of Appeals for the District of Columbia Circuit held, by two votes to one, that under the due process clause of the United States Constitution terminally ill patients had the right to decide whether to take un unlicensed drug that was in Phase 2 or Phase 3 clinical trials and that the producer was willing to make available. The court found that that right was deeply rooted in the traditional doctrines of self ‑ defence and interference with rescue, and that federal regulation of the effectiveness of drugs was too recent and haphazard “to establish that the government has acquired title to [that] right by adverse possession”. The panel went on to say that that right was “implicit in the concept of ordered liberty”. 62. On an application by the FDA, the same court reheard the case en banc, and in a decision of 7 August 2007 (495 F.3d 695) held, by eight votes to two, that federal regulation of drugs was “consistent with [the] historical tradition of prohibiting the sale of unsafe drugs”. The “arguably limited” history of efficacy regulation prior to 1962, when such regulation in the United States took its current shape, did not establish a fundamental right, because the legislature and the executive had “continually responded to new risks presented by an evolving technology” and because the legislature had a “well ‑ established power to regulate in response to scientific, mathematical, and medical advances”. The court went on to say that self ‑ defence, the tort of interference with rescue, and the United States Supreme Court’s “life or health of the mother” abortion cases provided no support for a right to seek investigational drugs, because those doctrines protected only “necessary” life ‑ saving measures, whereas the claimants sought “access to drugs that [were] experimental and [had] not been shown to be safe, let alone effective at (or ‘necessary’ for) prolonging life”. 63. On 14 January 2008 the United States Supreme Court denied a petition for a writ of certiorari (552 U.S. 1159). 64. In the case of Abney et al. v. Amgen, Inc., 443 F.3d 540, on 29 March 2006 the United States Court of Appeals for the Sixth Circuit upheld a lower court’s decision not to issue an injunction sought by the claimants, who were individuals involved in a clinical drug trial sponsored by the defendant, a drug manufacturer, to require the defendant to continue providing them with the drug, even though the clinical trial had come to an end. 2. In Canada 65. In the case of Delisle v. Canada (Attorney General), 2006 FC 933, the Federal Court of Canada had to deal with applications for judicial review of decisions taken by the Canadian federal health authorities under the above ‑ mentioned special access programme (see paragraph 57 above). The court held that in deciding to restrict access to a drug previously available under the programme the authorities had failed to strike a proper balance, because they had not taken due account of humanitarian or compassionate concerns. It referred the matter back to the authorities with instructions to weigh the “valid objectives of public policy against the humanitarian factor”. The judgment was not appealed against, and in 2008 the case was settled, with the authorities agreeing to follow the court’s recommendations. 3. In the United Kingdom 66. In the case of B (a minor), R. (on the application of) v. Cambridge Health Authority [1995] EWCA Civ 43 (10 March 1995), the Court of Appeal held that the courts could not disturb a properly reasoned decision by the competent health authorities not to fund a round of experimental treatment for a terminally ill child. The Master of the Rolls, as he then was, Sir Thomas Bingham, made two general comments. He firstly pointed out that the case involved the life of a young patient, which was a fact which had to dominate all consideration of all aspects of the case, because British society was one in which a very high value was put on human life and no decision affecting human life could be regarded with other than the greatest seriousness. He secondly observed that the courts were not arbiters as to the merits of cases of that kind, because if they expressed opinions as to the likelihood of the effectiveness of medical treatment, or as to the merits of medical judgment, they would be straying far from their domain. He went on to say that difficult and agonising judgments had to be made as to how a limited budget was best allocated to the maximum advantage of the maximum number of patients. That was not a judgment which a court could make. 67. In the case of Simms v Simms and an NHS Trust [2002] EWHC 2734 (Fam) (11 December 2002), the parents of two teenagers suffering from variant Creutzfeldt ‑ Jakob disease sought judicial declarations that their children could receive an experimental treatment which research on mice had shown could possibly inhibit the advance of their terminal condition. The High Court of Justice (Family Division) allowed the applications, holding, among other things, that the lack of an alternative treatment for the incurable disease meant that it was reasonable to use an experimental treatment that presented no significant risk to the patient. The President of the Family Division, Dame Elizabeth Butler ‑ Sloss, observed that the treatment was an untried one, and that until then there had been no validation of experimental work done abroad. However, she went on to say that if one waited for full certainty in experimental treatments, no innovative work such as the use of penicillin or heart transplant surgery would ever have been attempted. Referring to, inter alia, Articles 2 and 8 of the Convention and “a very strong presumption in favour of a course of action which will prolong life”, and having regard to the patients’ prospects with and without treatment and the fact that no alternative treatment was available, she concluded that it was in their best interest that the treatment should be carried out. In reaching that conclusion, she also considered the wishes and feelings of the families, finding that their advocacy of treatment “should carry considerable weight”. THE LAW I. PRELIMINARY ISSUE 68. The Government requested that the applications be partly struck out of the list of cases in accordance with Article 37 § 1 (c) of the Convention, challenging the right of the heirs of the four applicants who had died in the course of the proceedings (Mr Hristozov, Mr Petrov, Ms Pencheva and Mr Behar, see paragraph 4 above) to pursue the applications in their stead. In their view, those heirs could not claim to be indirect victims, and did not have a valid interest in obtaining a ruling by the Court, because the alleged breaches of Articles 2, 3 and 8 of the Convention did not affect them, for two reasons. First, the authorities’ refusal to allow the applicants access to the unauthorised medicinal product that they wished to have administered did not affect other individuals, such as their heirs. Secondly, the rights invoked by the applicants were deeply personal in nature. Moreover, it was not the Court’s task to determine in the abstract whether the relevant domestic law provisions were in line with the Convention. 69. The applicants did not comment on that point. 70. Article 37 § 1 of the Convention provides, in so far as relevant: “The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that ... (c) for any other reason established by the Court, it is no longer justified to continue the examination of the application. However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.” 71. In a number of cases in which applicants have died in the course of the proceedings the Court has taken into account statements by their heirs or close family members expressing the wish to pursue the proceedings, or the existence of a legitimate interest claimed by another person wishing to pursue the application (see, for example, X v. France, 31 March 1992, § 26, Series A no. 234 ‑ C; Lukanov v. Bulgaria, 20 March 1997, § 35, Reports of Judgments and Decisions 1997 ‑ II; and Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR 2000 ‑ XII, with further references). Conversely, the Court and the former Commission have struck applications out of their lists in situations where the applicants have died in the course of the proceedings and either no one has come forward with a wish to pursue the application (see, for example, Öhlinger v. Austria, no. 21444/93, Commission’s report of 14 January 1997, unreported, § 15; Ibish v. Bulgaria (dec.), no. 29893/06, 31 January 2011; and Korzhenevich v. Russia (dec.), no. 36799/05, 28 June 2011), or the persons who have expressed such a wish are not heirs or sufficiently close relatives of the applicants, and cannot demonstrate that they have any other legitimate interest in pursuing the application (see Scherer v. Switzerland, 25 March 1994, §§ 31 ‑ 32, Series A no. 287; S.G. v. France (striking out), no. 40669/98, §§ 6 and 16, 18 September 2001; Thévenon v. France (dec.), no. 2476/02, ECHR 2006 ‑ III; Léger v. France (striking out) [GC], no. 19324/02, §§ 47 ‑ 51, 30 March 2009; Mitev v. Bulgaria (dec.), no. 42758/07, 29 June 2010; and Yanchev v. Bulgaria (dec.) [Committee], no. 16403/07, 20 March 2012). 72. In the present case, the requests to pursue the proceedings were submitted by persons who had provided evidence of their status as both direct heirs and very close relatives of the deceased applicants (see paragraph 4 above). 73. It is true that under Article 34 the existence of a victim of a violation is indispensable for the Convention’s protection mechanism to be put in motion. However, this criterion cannot be applied in a rigid, mechanical and inflexible way throughout the proceedings (see, as a recent authority, OAO Neftyanaya kompaniya YUKOS v. Russia (dec.), no. 14902/04, § 441, 29 January 2009). The Court’s approach to cases introduced by applicants themselves and only continued by their relatives after their deaths differs from its approach to cases in which the application has been lodged after the death of the direct victim (see Fairfield and Others v. the United Kingdom (dec.), 24790/04, 8 March 2005; Biç and Others v. Turkey, no. 55955/00, § 20, 2 February 2006; Direkçi v. Turkey (dec.), no. 47826/99, 3 October 2006; Grădinar v. Moldova, no. 7170/02, § 91, 8 April 2008; Dvořáček and Dvořáčková v. Slovakia, no. 30754/04, § 39, 28 July 2009; and Kaburov v. Bulgaria (dec.), no. 9035/06, § 52, 19 June 2012). Moreover, the transferability or otherwise of the applicant’s claim is not always decisive, for it is not only material interests which the successors of deceased applicants may pursue by their wish to maintain the application (see Capital Bank AD v. Bulgaria, no. 49429/99, § 78, ECHR 2005 ‑ XII (extracts)). Cases before the Court generally also have a moral or principled dimension, and persons close to an applicant may thus have a legitimate interest in obtaining a ruling even after that applicant’s death (see Malhous, cited above). This is particularly true in the present case, for two reasons. First, it concerns the application of the most fundamental provisions in the Convention system. Secondly, its subject matter is closely connected with the four applicants’ deaths. In these circumstances, it would be contrary to the Court’s mission to refrain from ruling on the complaints raised by the deceased applicants just because they did not, owing to their serious diseases, have the strength or the time to await the outcome of the proceedings before it. 74. It cannot therefore be said that it is no longer justified to continue the examination of the applications in so far as they concern the four deceased applicants. 75. In view of this conclusion, the Court does not consider it necessary to address the question whether respect for human rights requires the continued examination of the applications in so far as they concern the four deceased applicants (see Karner v. Austria, no. 40016/98, § 25, ECHR 2003 ‑ IX, and Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 58, 23 February 2012). II. ADMISSIBILITY OF THE COMPLAINTS UNDER ARTICLES 2, 3 AND 8 OF THE CONVENTION A. Victim status 76. The Government submitted that the applicants could not claim to be victims of a violation, for three reasons. First, they had received adequate medical treatment, had not been denied such treatment, and there was no indication that their state of health had worsened. Secondly, Bulgarian law allowed “compassionate use” of unauthorised medicinal products. Thirdly, the applicants had not enrolled in a clinical trial that would have allowed them access to such products. Under European Union law there was no obligation, but simply a recommendation, to have a harmonised approach to the “compassionate use” of unauthorised medicinal products. MBVax Coley Fluid had not been authorised in any country and did not meet the criteria for “compassionate use” under European Union law. 77. The Government further argued that Ms Staykova ‑ Petermann could not claim to be a victim of a violation in her own right. 78. The applicants did not comment on those points. 79. The Court observes that the issues raised by the first limb of the Government’s objection are closely bound up with the merits of the complaints (see, mutatis mutandis, Doğan and Others v. Turkey, nos. 8803 ‑ 8811/02, 8813/02 and 8815 ‑ 8819/02, § 93, ECHR 2004 ‑ VI (extracts); Al ‑ Skeini and Others v. the United Kingdom [GC], no. 55721/07, §§ 106 ‑ 07, ECHR 2011 ‑ ...; and Hirsi Jamaa and Others, cited above, § 111). The Court will therefore deal with those points when examining the substance of the complaints. 80. As regards the second limb of the objection, the Court finds that, sadly, at this juncture the question whether Ms Staykova ‑ Petermann may personally claim to be a victim is of no practical importance, because her late son was also an applicant and because, following his death, she expressed the wish to pursue the proceedings in his stead, and the Court accepted that she was entitled to do so (see paragraphs 4, 73 and 74 above, and Georgel and Georgeta Stoicescu v. Romania, no. 9718/03, §§ 41 ‑ 43, 26 July 2011). 81. The Government’s objection must therefore be rejected. B. Exhaustion of domestic remedies 1. The parties’ submissions 82. The Government submitted that the applicants had failed to exhaust domestic remedies in respect of their complaints under Articles 2, 3 and 8 of the Convention, because they had not sought judicial review of the decisions denying them the opportunity to use MBVax Coley Fluid. They said that they were not aware of cases in which the Bulgarian courts had dealt with the “compassionate use” of unauthorised medicinal products, and pointed out that those courts were not competent to declare what type of medical treatment should be applied in a particular case. It was nevertheless possible to refer the question raised by the case to a domestic court, and rely on arguments based on the Convention or on European Union law, inasmuch as the Convention had been incorporated in Bulgarian law and the relevant rules of European Union law were directly applicable. The Government went on to draw attention to the conditions under which patients could seek access to unauthorised medicinal products, and expressed the view that in the applicants’ cases those conditions had not been met. 83. In their additional observations on this point, the Government again argued that the applicants could have sought judicial review of the decisions denying them the opportunity to use MBVax Coley Fluid, or of the regulations on which those decisions had been based. In such proceedings the applicants could have relied on the Convention: the Bulgarian courts had on a number of occasions set aside administrative decisions or struck down regulations as inconsistent with the Convention or European Union law. The Government conceded that they could not speculate as to the outcome of such proceedings, but emphasised that in their view neither the decisions nor the regulations in issue were in breach of the Medicinal Products in Human Medicine Act 2007 or of European Union law. The Act itself was fully consistent with the relevant European Union law, and therefore not in breach of the Convention. Regulations no. 2 and Regulations no. 10 both required that the medicinal product in issue be authorised in another country, which was not the applicants’ case. However, this was fully in line with Article 83 of Regulation (EC) no. 726/2004, which required that the product concerned either be the subject of an application for marketing authorisation or be undergoing clinical trials, which was again not the applicants’ case. 84. The applicants replied that an application for judicial review of the decisions of the Director of the Medicines Executive Agency was not an effective remedy, for three reasons. First, in view of the wording of the applicable regulations, it would not have had any reasonable prospects of success. Secondly, its examination would have taken too long. Thirdly, the national courts would not have been in a position to obtain impartial expert opinions. An application for judicial review of the regulations themselves was not an effective remedy either, because such proceedings could have resulted only in the regulations being struck down, not their modification. 85. In their additional observations on this point, the applicants again argued that an application for judicial review of the decisions of the Medicines Executive Agency would not have had a reasonable prospect of success, for several reasons. First, the requirements laid down in the applicable regulations were vague. Secondly, because of the absence from Regulations no. 2 of provisions dealing with the possibility of judicial review, and of any case ‑ law under that regulation or under the regulations that preceded it, it was unclear which would be the competent court, and even whether the courts would consider the Agency’s pronouncements to be administrative decisions subject to judicial review. Thirdly, there was no guarantee that the applicants would be able to obtain unbiased expert opinions. The impossibility of securing objective opinions by medical experts was a systemic problem in Bulgaria, as illustrated by a number of cases concerning medical negligence and reports in the press. Fourthly, all those procedural uncertainties made it very likely that any legal challenges brought by the applicants would not have been determined before their deaths. In support of that assertion the applicants pointed to several cases in which proceedings brought by patients in connection with the State’s failure to provide them with medicines had been marred by delays and had dragged on for years; in some of those cases the claimants had died long before the courts had dealt with their claims. As regards proceedings concerning challenges to statutory instruments, their average duration was two years. Fifthly, the regulations in issue were not contrary to Bulgarian law, and thus could be challenged only on Convention grounds. However, as was evident from their case ‑ law, the Bulgarian courts were likely to take into account Convention ‑ related arguments only if they were based on clear and consistent case ‑ law of this Court in relation to Bulgaria, which was not the case. There was an abundance of Bulgarian judicial decisions which had given short shrift to Convention ‑ based arguments. In sum, the prospect of a national court providing redress to the applicants before their deaths was illusory. Nor could they realistically hope to obtain from the authorities a different decision under newly issued Regulations no. 10, which likewise required that the medicinal product in issue be authorised in another country. 2. The Court’s assessment 86. Concerning the possibility of seeking judicial review of the decisions of the Director of the Medicines Executive Agency, the Court observes that at the relevant time the impossibility for the applicants to obtain access to the unauthorised medicinal product that they wished to have administered flowed directly from the wording of Regulation 2 of Regulations no. 2 of 10 January 2001, preceded and superseded by similar texts (see paragraphs 25 and 30 above). Under the express terms of that Regulation, and of the Regulations that preceded and superseded it, medicinal products which had not been authorised in another country – which was the case here – could not exceptionally be permitted for use in Bulgaria (see paragraphs 26, 27 and 31 above). It has not been disputed that in his decisions in respect of each of the applicants the Agency’s Director applied that provision correctly; this is confirmed by the opinion expressed by the Ombudsman of the Republic (see paragraph 16 above) and by the Government’s submissions (see, mutatis mutandis, Immobiliare Saffi v. Italy [GC], no. 22774/93, § 42 in limine, ECHR 1999 ‑ V; Urbárska Obec Trenčianske Biskupice v. Slovakia, no. 74258/01, § 86, 27 November 2007; Ognyan Asenov v. Bulgaria, no. 38157/04, § 32, 17 February 2011; and Valkov and Others v. Bulgaria, nos. 2033/04, 19125/04, 19475/04, 19490/04, 19495/04, 19497/04, 24729/04, 171/05 and 2041/05, § 72, 25 October 2011). As regards the possibility of relying on the direct application of European Union law, the Court takes note of the examples cited by the Government in which the Bulgarian courts relied on that law to set aside administrative decisions (see paragraphs 38 and 39 above). However, the Court observes that, as evident from the terms of its relevant provisions, European Union law enables, but does not require, the Union’s member States to allow “compassionate use” of unauthorised medicinal products (see paragraphs 45 ‑ 51 above). There is therefore no basis on which to argue that the Director’s decisions were in breach of that law. Lastly, the Court is not persuaded that the applicants could have successfully challenged those decisions on the strength of Convention ‑ based arguments. It takes note of the examples cited by the Government in which the Bulgarian courts relied on the Convention and the Court’s case ‑ law to set aside administrative decisions, or to hold that they had jurisdiction to review such decisions (see paragraphs 39 and 40 above). However, it cannot be overlooked that in all those examples the Bulgarian courts based their decisions on established case ‑ law of this Court, whereas there is to date no firm basis in the Court’s case ‑ law on which to hold that impossibility of access to unauthorised medicinal products on a “compassionate use” basis is in breach of the Convention. The issue is novel and not free from doubt. The Court is mindful that its role is intended to be subsidiary to that of national systems safeguarding human rights, and that the national courts should normally have the initial opportunity to determine whether domestic law is compatible with the Convention (see Burden v. the United Kingdom [GC], no. 13378/05, § 42, ECHR 2008 ‑ ...). However, it considers that the examples cited by the Government cannot lead to the conclusion that in the specific circumstances of this case a domestic legal challenge based on Convention ‑ related arguments would have had a reasonable prospect of success (see, mutatis mutandis, Slavgorodski v. Estonia (dec.), no. 37043/97, 9 March 1999, and Odièvre v. France [GC], no. 42326/98, §§ 21 and 23, ECHR 2003 ‑ III). The Court also notes that, by the Government’s own admission, the Bulgarian courts have never dealt with the use of unauthorised medicinal products; it appears that since 1995, when the Minister of Health laid down regulations on this matter for the first time, no cases have been reported under those regulations (see paragraph 34 above). 87. The burden of proof is on the Government claiming non-exhaustion to satisfy the Court that the remedy to which they refer offered a reasonable prospect of success (see, as a recent authority, Nada v. Switzerland [GC], no. 10593/08, § 141, 12 September 2012). In view of the above reasons, the Court is not satisfied that an application for judicial review of the decisions of the Director of the Medicines Executive Agency can be regarded as offering such a prospect. 88. Nor is the Court persuaded that the applicants would have been able successfully to seek judicial review of the regulations on which those decisions were based. Those regulations do not appear to run counter to a higher ‑ ranking statutory or constitutional rule, or to a rule of European Union law. There is thus no basis in domestic law or European Union law for a challenge to them. The Court is not persuaded that the applicants could have successfully challenged the regulations on the strength of Convention ‑ based arguments either. It is true that the Supreme Administrative Court has previously struck down statutory instruments on the ground that they were contrary to the Convention, when the discrepancy between the two was clear (see the decisions cited in paragraph 37 above, and in Bochev v. Bulgaria, no. 73481/01, § 45, 13 November 2008). However, in cases where the incompatibility was not immediately apparent, it has refused to do so (see the decisions cited in Ponomaryovi v. Bulgaria, no. 5335/05, §§ 23 ‑ 24, ECHR 2011 ‑ ...). As already noted, in the present case it is far from clear that the impossibility of access to unauthorised medicinal products on a “compassionate use” basis is in breach of the Convention. 89. In view of these conclusions, the Court does not find it necessary to enquire whether the effectiveness of the remedy proposed by the Government would have been hindered by uncertainties as to whether a legal challenge to the Director’s decisions or the underlying regulations would have been heard on the merits, or by the alleged impossibility of obtaining impartial expert opinions, or by the allegedly limited powers of the Supreme Administrative Court in proceedings for review of statutory instruments. Nor is it necessary to speculate as to whether such judicial review proceedings would have lasted so long as to render a ruling in the applicants’ favour devoid of practical purpose. 90. The Government’s objection must therefore be rejected. C. Compatibility ratione materiae 91. The Government submitted that the complaint under Article 2 was incompatible ratione materiae with the provisions of the Convention, because that Article could not be construed as requiring the State to allow access to unauthorised medicinal products. The same was true for the complaint under Article 3 of the Convention. The refusal to allow the applicants access to the experimental product MBVax Coley Fluid, whose safety and efficacy had not been established, could not be regarded as inhuman treatment. 92. The applicants did not comment on this submission. 93. The Court notes that the Government’s arguments concern the interpretation and application of Articles 2 and 3 of the Convention, and in particular the extent of the State’s positive obligations under those Articles in relation to the provision of unauthorised medicinal products to terminally ill patients. Considered in those terms, the objection that the complaints are incompatible ratione materiae with the provisions of the Convention is closely linked to the substance of the complaints, and is more appropriately addressed at the merits stage (see, mutatis mutandis, Bozano v. France, 18 December 1986, § 42, Series A no. 111; Vo v. France [GC], no. 53924/00, § 44, ECHR 2004 ‑ VIII; Rantsev v. Cyprus and Russia, no. 25965/04, § 211, 7 January 2010; and Austin and Others v. the United Kingdom [GC], nos. 39692/09, 40713/09 and 41008/09, § 50, 15 March 2012). D. The Court’s conclusion as to the admissibility of the complaints 94. The Court further considers that these complaints are not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. No other ground for declaring them inadmissible has been established. They must therefore be declared admissible. III. MERITS OF THE COMPLAINTS UNDER ARTICLES 2, 3 AND 8 OF THE CONVENTION 95. The applicants complained under Article 2 § 1 of the Convention that under Bulgarian law individuals who were terminally ill and who had unsuccessfully exhausted all conventional methods of treatment could not exceptionally be allowed to use unauthorised medicinal products. They further complained that the authorities’ response to their requests to obtain such permission had been both incoherent and slow, arguing that this had been due to the lack of clear rules in that domain. 96. The applicants also complained under Article 3 of the Convention that by denying them access to the experimental medicinal product that they wished to use the authorities had subjected them to inhuman and degrading treatment. 97. Lastly, they complained under Article 8 of the Convention that the authorities’ refusal to allow them to use the product had been an unjustified interference with their right to respect for their private and family life. 98. Articles 2, 3 and 8 of the Convention provide, in so far as relevant: Article 2 (right to life) “1. Everyone’s right to life shall be protected by law ...” Article 3 (prohibition of torture) “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Article 8 (right to respect for private and family life) “1. Everyone has the right to respect for his private and family life ... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well ‑ being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. The parties’ submissions 1. Concerning Article 2 of the Convention 99. The Government pointed out that Bulgarian law made provision for “compassionate use” of unauthorised medicinal products. However, they emphasised that such products carried serious risks, which required them to be carefully regulated. The State was entitled to refuse permission for the use of an unauthorised medicinal product, and this did not breach the right to life, but safeguarded it. The positive obligations under Article 2 of the Convention had limits, and could not exceed what was reasonable. The applicants had been given conventional medical treatment. There was no further duty to allow them to use a product which was not authorised in any member State of the European Union or had not been subjected to a clinical trial. A State could not be obliged to make available all possible drugs, let alone products whose contents and origins were not clearly known, and which had not been authorised in developed countries with strong health care systems. The product at issue did not comply with the requirements for “compassionate use” under Article 83 of Regulation (EC) no. 726/2004. If its producer met the applicable requirements, the authorities could envisage allowing its use in the future. In that sense, the applicants were not left with no hope at all. 100. The applicants submitted that the refusal to allow them to use the product had been in breach of their right to life. They highlighted the similarities and differences between their case and previous cases in which the Court had dealt with complaints under Article 2 of the Convention in relation to health care. They argued that, properly framed, the issue in their case was whether the State had taken appropriate steps to safeguard the lives of those under its jurisdiction. In their view it had not, because the rules governing “compassionate use” were not adequate, in that they did not allow the authorities to have regard to specific circumstances. All individuals in Bulgaria who, like the applicants, had cancer which was terminal and which was no longer responding to conventional treatment, were being denied access to experimental medicinal products. In the applicants’ case, this was not justified by lack of budgetary resources, because the company which had developed the product was willing to provide it free of charge. There were indications that the condition of some cancer patients had improved as a result of its use. This had given the applicants hope that it might help them as well. 2. Concerning Article 3 of the Convention 101. The Government drew attention to the minimum threshold bringing Article 3 of the Convention into play, which in their view had not been reached, and to the limited extent of the State’s positive obligations under that Article. They pointed out that there had been no intention to deny the applicants access to safe medicinal products. The experimental product that they wished to use had not been authorised in any country, and had not undergone clinical trials. Its safety and efficacy had not been established. Not being given the opportunity to use it could not therefore be regarded as inhuman treatment. On the contrary, its use, which would have amounted to a medical experiment, might have resulted in a breach of Article 3. 102. The applicants submitted that they had been forced to await their deaths in spite of being aware of the existence of an experimental product which might improve their health and prolong their lives. Those of them who had died had had to endure pain and suffering before their death, in the knowledge that the use of the product in other countries had in some cases even led to complete remission from the disease. 3. Concerning Article 8 of the Convention 103. The Government submitted that any interference with the applicants’ rights under Article 8 of the Convention had been lawful and necessary. The refusals to allow them to use the experimental product had been reasoned, made by an independent authority, and based on legal provisions which were fully in line with European Union law. It could therefore be presumed that they were compliant with the Convention. Those provisions, which took into account the need to strike a balance between the public interest and personal autonomy, sought to protect the health and life of those concerned by preventing abuses and the risks accompanying the use of untested products. For that purpose they had laid down certain conditions, which in the applicants’ cases had not been met. That regulatory arrangement could not be described as a blanket prohibition on the “compassionate use” of unauthorised medicinal products. 104. The applicants highlighted the similarities and differences between their case and previous cases in which the Court had dealt with similar issues under Article 8 of the Convention. They pointed out that they were not trying to derive from that provision a right to die, but on the contrary a right to try to prolong life and avert death. The refusals to allow them access to an experimental medicinal product which might help them do so amounted to interference with their rights under that Article. The manner in which a person chose to live, even if that choice could entail harmful consequences, was part of that person’s private life. The refusals had been of a blanket nature, not taking into account the specifics of each case. They had been based on inadequate legal provisions which did not permit an individualised assessment, and did not correspond to a pressing social need. They had not been intended to protect the applicants’ lives, because all of them were terminally ill and, without recourse to some new medicinal product, had only a short span of life left. In that connection, it had to be borne in mind that the exception sought would simply have given the applicants a chance to prolong their lives, and would not have shielded anyone else from criminal liability. It might have helped them avert suffering and death, as had happened with some patients in other countries. B. The Court’s assessment 1. The scope of the case 105. The Court’s task in cases arising from individual applications is not to review domestic law in the abstract, but to examine the manner in which that law has been applied to the applicants (see, among other authorities, McCann and Others v. the United Kingdom, 27 September 1995, § 153, Series A no. 324; Pham Hoang v. France, 25 September 1992, § 33, Series A no. 243; Sommerfeld v. Germany [GC], no. 31871/96, § 86, ECHR 2003 ‑ VIII; and S.H. and Others v. Austria [GC], no. 57813/00, § 92, ECHR 2011 ‑ ...). The Court must also confine its attention, as far as possible, to the particular circumstances of the case before it (see, among other authorities, Wettstein v. Switzerland, no. 33958/96, § 41, ECHR 2000 ‑ XII, and Sommerfeld, cited above, § 86). It is therefore not called upon in the present case to pass judgment on the system of rules governing access to unauthorised medicinal products in Bulgaria, or to decide whether refusal of access to medicinal products is in principle compatible with the Convention. Moreover, the Court is not competent to express an opinion as to the suitability of a particular medical treatment. Lastly, the Court does not have to establish whether the product that the applicants wished to use met the requirements of European Union law, and in particular the requirement of Article 83 § 2 of Regulation (EC) no. 726/2004 to be undergoing clinical trials (see paragraphs 10, 45 and 50 above); the Court is competent only to apply the Convention, and it is not its task to review compliance with other international instruments (see Di Giovine v. Portugal (dec.), no. 39912/98, 31 August 1999; Hermida Paz v. Spain (dec.), no. 4160/02, 28 January 2003; Somogyi v. Italy, no. 67972/01, § 62, ECHR 2004 ‑ IV; Calheiros Lopes and Others v. Portugal (dec.), no. 69338/01, 3 June 2004; and Böheim v. Italy (dec.), no. 35666/05, 22 May 2007). In the present case, the Court must determine only whether the refusals to allow the applicants access to the product at issue were compatible with their Convention rights. 2. Alleged violation of Article 2 of the Convention 106. The first sentence of Article 2 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see, among other authorities, Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 48, ECHR 2002 ‑ I, and Wiater v. Poland (dec.), no. 42290/08, § 33, 15 May 2012). The Court has previously held that it cannot be excluded that acts and omissions of the authorities in the field of health care policy may in some circumstances engage the State’s responsibility under Article 2 (see Powell v. the United Kingdom (dec.), no. 45305/99, ECHR 2000 ‑ V; Nitecki v. Poland (dec.), no. 65653/01, 21 March 2002; Trzepałko v. Poland (dec.), no. 25124/09, § 23, 13 September 2011; and Wiater, cited above, § 34). It has also held that, with respect to the scope of the State’s positive obligations in the provision of health care, an issue may arise under Article 2 where it is shown that the authorities have put an individual’s life at risk through the refusal of health care which they have undertaken to make available to the general population (see Cyprus v. Turkey [GC], no. 25781/94, § 219, ECHR 2001 ‑ IV; Nitecki, cited above; Pentiacova and Others v. Moldova (dec.), no. 14462/03, ECHR 2005 ‑ I; Gheorghe v. Romania (dec.), no. 19215/04, 22 September 2005; and Wiater, cited above, § 35). 107. In the present case, it is not being argued that the applicants have been refused health care which is otherwise generally available in Bulgaria. Nor are the applicants suggesting that the State should pay for a particular form of conventional treatment because they are unable to meet its costs (contrast Nitecki; Pentiacova and Others; Gheorghe; and Wiater, all cited above). The applicants’ claim is rather that, because conventional treatments did not work in their cases, domestic law should be framed in such a way as to entitle them, exceptionally, to have access to an experimental and yet untested product that would be provided free of charge by the company which is developing it. 108. It is true that the positive obligations under Article 2 may include the duty to put in place an appropriate legal framework, for instance regulations compelling hospitals to adopt appropriate measures for the protection of their patients’ lives (see Calvelli and Ciglio, cited above, § 49), or regulations governing dangerous industrial activities (see Öneryıldız v. Turkey [GC], no. 48939/99, § 90, ECHR 2004 ‑ XII). Nevertheless, it cannot be said that Bulgaria does not have in place regulations governing access to unauthorised medicinal products in cases where conventional forms of medical treatment appear insufficient. Such regulations exist and have recently been updated (see paragraphs 23 ‑ 32 above). The applicants rather take issue with the terms of those regulations, arguing that they are overly restrictive. However, in the Court’s view Article 2 of the Convention cannot be interpreted as requiring access to unauthorised medicinal products for the terminally ill to be regulated in a particular way. It should be noted in this connection that in the European Union this matter remains within the competence of the member States (see paragraphs 45 ‑ 51 above), and that the Contracting States deal differently with the conditions and manner in which access to unauthorised medicinal products is provided (see paragraphs 54 ‑ 55 above). 109. There has therefore been no violation of Article 2 of the Convention. 3. Alleged violation of Article 3 of the Convention 110. Article 3 of the Convention enshrines one of the most fundamental values of a democratic society. It prohibits in absolute terms torture and inhuman or degrading treatment or punishment. However, to fall under that provision a given form of treatment must attain a minimum level of severity. The assessment of this minimum level is relative. It depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see, as a recent authority, A, B and C v. Ireland [GC], no. 25579/05, § 164, ECHR 2010 ‑ ...). In considering whether a treatment is “degrading”, the Court will have regard to whether its object was to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3 (see, among other auhtorities, Wainwright v. the United Kingdom, no. 12350/04, § 41, ECHR 2006 ‑ X). 111. An examination of the Court’s case ‑ law shows that Article 3 has been most commonly applied in contexts in which the risk of being subjected to a proscribed form of treatment has emanated from intentionally inflicted acts of State agents or public authorities. It may be described in general terms as imposing a primarily negative obligation on States to refrain from inflicting serious harm on persons within their jurisdiction. However, in view of the fundamental importance of Article 3, the Court has reserved to itself sufficient flexibility to address its application in other situations (see Pretty v. the United Kingdom, no. 2346/02, § 50, ECHR 2002 ‑ III). For instance, suffering which flows from a naturally occurring illness may be covered by Article 3 where it is, or risks being, exacerbated by treatment stemming from measures for which the authorities can be held responsible (see N. v. the United Kingdom [GC], no. 26565/05, § 29, ECHR 2008 ‑ ...). However, the threshold in such situations is high, because the alleged harm emanates not from acts or omissions of the authorities but from the illness itself (ibid., § 43). 112. In the present case, there is no complaint that the applicants have not received adequate medical treatment. It appears that all of them have benefited from such treatment, which has sadly proved insufficient to treat their medical conditions. Their situation is therefore not comparable to those of persons in custody who complain of a lack of medical treatment (see, for example, Keenan v. the United Kingdom, no. 27229/95, §§ 109 ‑ 16, ECHR 2001 ‑ III; McGlinchey and Others v. the United Kingdom, no. 50390/99, §§ 47 ‑ 58, ECHR 2003 ‑ V; and Sławomir Musiał v. Poland, no. 28300/06, §§ 85 ‑ 98, 20 January 2009), seriously ill persons who would be unable to obtain treatment if removed to a country which lacks adequate medical facilities (see N. v. the United Kingdom, cited above, §§ 32 ‑ 51, and the cases cited therein), or persons in a vulnerable situation who have, as a result of rank indifference on the part of health care professionals, been denied access to otherwise available diagnostic services to which they were entitled as a matter of law (see R.R. v. Poland, no. 27617/04, §§ 148 ‑ 62, 26 May 2011). 113. The applicants rather claim that the refusal by the authorities to allow them access to an experimental product which, according to them, was potentially life ‑ saving, amounted to inhuman and degrading treatment for which the State was responsible, as it thereby failed to protect them from the suffering resulting from the final stages of their illness. However, as in Pretty (cited above, § 54), the Court considers that this claim puts an extended construction on the concept of inhuman or degrading treatment that it cannot accept. It cannot be said that by refusing the applicants access to a product – even if potentially life ‑ saving – whose safety and efficacy are still in doubt, the authorities directly added to the applicants’ physical suffering. It is true that the refusals, inasmuch as they prevented the applicants from resorting to a product which they believed might improve their chances of healing and survival, caused them mental suffering, especially in view of the fact that the product appears to be available on an exceptional basis in other countries. However, the Court does not consider that the authorities’ refusal reached a sufficient level of severity to be characterised as inhuman treatment (see, mutatis mutandis, A, B and C v. Ireland, cited above, §§ 163 ‑ 64). It notes in this connection that Article 3 does not place an obligation on the Contracting States to alleviate the disparities between the levels of health care available in various countries (see, mutatis mutandis, N. v. the United Kingdom, cited above, § 44). Lastly, the Court does not consider that the refusals can be regarded as humiliating or debasing the applicants. 114. Whether the refusals unduly interfered with the applicants’ right to respect for their physical integrity is a point which the Court will examine below by reference to Article 8 of the Convention (see, mutatis mutandis, Tysiąc v. Poland, no. 5410/03, § 66, ECHR 2007 ‑ I, and L. v. Lithuania, no. 27527/03, § 47, ECHR 2007 ‑ IV). 115. There has therefore been no violation of Article 3 of the Convention. 4. Alleged violation of Article 8 of the Convention (a) Applicability of Article 8 116. The essence of the applicants’ grievance is that there is a regulatory limitation on their capacity to choose, in consultation with their doctors, the way in which they should be medically treated with a view to possibly prolonging their lives. This complaint clearly falls to be examined under Article 8, whose interpretation, so far as the notion of “private life” is concerned, is underpinned by the notions of personal autonomy and quality of life (see Pretty, cited above, §§ 61 in fine and 65, and Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 90, ECHR 2002 ‑ VI). It is by reference to that provision that the Court and the former Commission have most often examined the extent to which States can use compulsory powers to protect people from the consequences of their own conduct, including when that conduct poses a danger to health or is of a life ‑ threatening nature (see, for example, concerning involvement in consensual sado-masochistic activities, Laskey, Jaggard and Brown v. the United Kingdom, 19 February 1997, §§ 35 ‑ 36, Reports 1997 ‑ I, and K.A. and A.D. v. Belgium, no. 42758/98 and 45558/99, §§ 78 and 83, 17 February 2005; concerning imposition of medical treatment without consent, Acmanne and Others v. Belgium, no. 10435/83, Commission decision of 10 December 1984, DR 40, p. 251; Glass v. the United Kingdom, no. 61827/00, §§ 82 ‑ 83, ECHR 2004 ‑ II; Storck v. Germany, no. 61603/00, §§ 143 ‑ 44, ECHR 2005 ‑ V; Jehovah’s Witnesses of Moscow v. Russia, no. 302/02, § 135, ECHR 2010 ‑ ...; and Shopov v. Bulgaria, no. 11373/04, § 41, 2 September 2010; and, concerning assisted suicide, Pretty, cited above, §§ 62 ‑ 67, and Haas v. Switzerland, no. 31322/07, § 51, ECHR 2011 ‑ ...). (b) Positive obligation or interference with a right? 117. The parties argued the case in terms of interference with the applicants’ rights under Article 8. In the Court’s view, however, the point is not so clear-cut. The central issue in the case may be seen as either a curtailment of the applicants’ choice of medical treatment, to be analysed as an interference with their right to respect for their private life (compare, mutatis mutandis, Pretty, cited above, § 67; A, B and C v. Ireland, cited above § 216; and S.H. and Others v. Austria, cited above, §§ 85 ‑ 88), or as an allegation of a failure on the part of the State to provide an appropriate regulatory framework securing the rights of persons in the applicants’ situation, to be analysed in terms of the State’s positive duty to ensure respect for their private life (compare, mutatis mutandis, Christine Goodwin, § 71; Tysiąc, §§ 107 ‑ 08; Haas, §§ 52 ‑ 53; A, B and C v. Ireland, §§ 244 ‑ 46; and R.R. v. Poland, § 188, all cited above). The Court does not find it necessary to determine this point. Although the boundaries between the State’s positive and negative obligations under Article 8 do not lend themselves to precise definition, the applicable principles are similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole (see, among other authorities, Powell and Rayner v. the United Kingdom, 21 February 1990, § 41, Series A no. 172; Evans v. the United Kingdom [GC], no. 6339/05, § 75, ECHR 2007 ‑ I; and Dickson v. the United Kingdom [GC], no. 44362/04, § 70, ECHR 2007 ‑ V). The salient issue in this case is precisely whether such a balance has been struck, regard being had to the State’s margin of appreciation in this domain. (c) The competing interests and the applicable margin of appreciation 118. In its recent judgment in S.H. and Others v. Austria (cited above, § 94), the Court summarised the principles for determining the breadth of the State’s margin of appreciation under Article 8 as follows. A number of factors must be taken into account. Where a particularly important facet of an individual’s existence or identity is at stake, the margin will normally be restricted. Where, however, there is no consensus within the Contracting States, either as to the relative importance of the interest at stake or as to the best means of protecting it, particularly where the case raises sensitive moral or ethical issues, the margin will be wider. There will usually be a wide margin if the State is required to strike a balance between competing private and public interests or Convention rights. 119. The Court starts with the general point that matters of health-care policy are in principle within the margin of appreciation of the domestic authorities, who are best placed to assess priorities, use of resources and social needs (see Shelley v. the United Kingdom (dec.), no. 23800/06, 4 January 2008). 120. Turning to the competing interests, the Court observes that it is undeniable that the applicants’ interest in obtaining medical treatment capable of mitigating their illness or of helping them defeat it is of the highest order. However, the analysis cannot stop there. When it comes to experimental medicinal products, it is in the nature of things that their quality, efficacy and safety are open to doubt. The applicants do not deny this. They rather seek to argue that because of the dire prognosis attaching to their medical condition, they should have been allowed to assume the risks attendant on a potentially life ‑ saving experimental product. Framed in these terms, the applicants’ interest is of a different nature. It may be described as the freedom to opt, as a measure of last resort, for an untested treatment which may carry risks but which the applicants and their doctors consider appropriate to their circumstances, in an attempt to save their lives. 121. That said, the Court nonetheless accepts that, in view of their medical condition and the prognosis for its development, the applicants had a stronger interest than other patients in obtaining access to experimental treatment whose quality, safety and efficacy have not yet been subjected to comprehensive testing. 122. The countervailing public interest in regulating the access of terminally ill patients such as the applicants to experimental products appears to be based on three premises. Firstly, to protect them, in view of their vulnerable state and the lack of clear data on the potential risks and benefits of experimental treatments, against a course of action which may prove harmful to their own health and life, their terminal condition notwithstanding (see, mutatis mutandis, Haas, cited above, § 54). The Court notes in this connection that it has emphasised, albeit in a different context, the importance of informed consent to medical procedures (see V.C. v. Slovakia, no. 18968/07, §§ 107 ‑ 17 and 152, ECHR 2011 ‑ ... (extracts), and N.B. v. Slovakia, no. 29518/10, §§ 76 ‑ 78 and 96, 12 June 2012). Secondly, to ensure that the prohibition laid down in section 7(1) of the Medicinal Products in Human Medicine Act 2007 (see paragraph 22 above) against the production, importation, trade in, advertisement, or use for medical treatment, prophylaxis or diagnostics of products which have not been granted authorisation under the appropriate regulatory channels is not diluted or circumvented. Thirdly, to ensure that the development of new medicinal products is not compromised by, for instance, diminished patient participation in clinical trials. All those interests are related to the rights guaranteed under Articles 2, 3 and 8 the Convention, the first very specifically and the second and third more generally. Moreover, balancing them against the applicants’ interest touches upon complex ethical and risk-assessment issues, against a background of fast-moving medical and scientific developments. 123. As regards the consensus within the Contracting States, the Court observes that, according to the comparative-law information available to it, a number of those States have made provision in their laws for exceptions, in particular in the case of terminally ill patients, to the rule that only authorised medicinal products may be used for medical treatment. They have, however, made this option subject to conditions of varying strictness (see paragraphs 54 ‑ 55 above). On that basis, and on the basis of the manner in which the issue is regulated in the law of the European Union (see paragraphs 44 ‑ 51 above), the Court concludes that there is now a clear trend in the Contracting States towards allowing, under certain exceptional conditions, the use of unauthorised medicinal products. However, that emerging consensus is not based on settled principles in the law of the Contracting States. Nor does it appear to extend to the precise manner in which that use should be regulated. 124. On the basis of the above considerations, the Court concludes that the margin of appreciation to be afforded to the respondent State must be a wide one, especially as regards the detailed rules it lays down with a view to achieving a balance between competing public and private interests (see, mutatis mutandis, Evans, § 82, and S.H. and Others v. Austria, § 97, both cited above). (d) Balancing the interests 125. The Bulgarian authorities have chosen to balance the competing interests by allowing patients who cannot be satisfactorily treated with authorised medicinal products, including terminally ill patients such as the applicants, to obtain, under certain conditions, medicinal products which have not been authorised in Bulgaria, but only if those products have already been authorised in another country (see paragraphs 26 and 31 above). That was apparently the main reason for the refusals by the Medicines Executive Agency in the applicants’ cases (see paragraph 14 above). Such a solution tilts the balance between potential therapeutic benefit and medicine risk avoidance decisively in favour of the latter, because medicinal products authorised in another country are likely already to have been subjected to comprehensive safety and efficacy testing. At the same time, this solution leaves products which are still in the various stages of development entirely inaccessible. In view of the authorities’ broad margin of appreciation in this domain, the Court considers that regulatory solution did not fell foul of Article 8. It is not for an international court to determine in place of the competent national authorities the acceptable level of risk in such circumstances. The salient question in terms of Article 8 is not whether a different solution might have struck a fairer balance, but whether, in striking the balance at the point at which they did, the Bulgarian authorities exceeded the wide margin of appreciation afforded to them (see, mutatis mutandis, Evans, § 91, and S.H. and Others v. Austria, § 106, both cited above). In view of the considerations set out above, the Court is unable to find that they did. 126. The applicants’ other criticism of the regulatory arrangement was that it did not sufficiently allow individual circumstances to be taken into account. However, the Court finds that this was not necessarily inconsistent with Article 8. It is not in itself contrary to the requirements of that provision for a State to regulate important aspects of private life without making provision for the weighing of competing interests in the circumstances of each individual case (see, mutatis mutandis, Pretty, §§ 74 ‑ 76; Evans, § 89; and S.H. and Others v. Austria, § 110, all cited above). 127. The Court therefore concludes that there has been no violation of Article 8 of the Convention. IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 128. The applicants complained that they did not have effective remedies in respect of the alleged breaches of Articles 2, 3 and 8 of the Convention. They relied on Article 13, which provides as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 129. The Government submitted that the applicants could have sought to vindicate their rights under Articles 2, 3 and 8 of the Convention by bringing claims in tort, either under the general law of tort or under the special provisions governing the authorities’ liability in tort. They could also have appealed against the refusals to the Minister of Health and then sought judicial review. 130. The applicants referred to their submissions in relation to the exhaustion of domestic remedies. 131. The Court observes that in so far as the alleged breaches of Articles 2, 3 and 8 of the Convention appear to stem from the state of Bulgarian law, no issue arises under Article 13 of the Convention (see Christine Goodwin, cited above, § 113; Appleby and Others v. the United Kingdom, no. 44306/98, § 56, ECHR 2003 ‑ VI; Iordachi and Others v. Moldova, no. 25198/02, § 56, 10 February 2009; and V.C. v. Slovakia, no. 18968/07, § 167, 8 November 2011). 132. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. | The European Court of Human Rights held that there had been no violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights. Considering that the restriction in question concerned the patients’ right to respect for private life, protected by Article 8 of the Convention, it observed a trend among European countries towards allowing, under exceptional conditions, the use of unauthorised medicine. However, the Court found that this emerging consensus was not based on settled principles in the law of those countries, nor did it extend to the precise manner in which the use of such products should be regulated. The Court further held that there had been no violation of Article 2 (right to life) and no violation of Article 3 (prohibition of torture and of inhuman or degrading treatment) of the Convention in this case. |
815 | Prohibition of discrimination (Article 14 of the Convention and Article 1 of Protocol No. 12 to the Convention) | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Relevant domestic law 1. The Constitution 22. The relevant provisions of the Constitution of the Republic of Croatia ( Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998, 113/2000, 124/2000, 28/2001, 41/2001, 55/2001, 76/2010, 85/2010 and 5/2014) read as follows. Article 14 “Everyone in the Republic of Croatia shall enjoy rights and freedoms regardless of their race, colour, sex, language, religion, political or other belief, national or social origin, property, birth, education, social status or other characteristics. All shall be equal before the law.” Article 34 “The home is inviolable. ... ” Article 35 “Everyone has the right to respect for and legal protection of his or her private and family life, dignity, reputation and honour.” Article 48 “The right of ownership shall be guaranteed. ...” 2. Constitutional Court Act 23. The relevant part of section 62 of the Constitutional Court Act ( Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 49/2002) reads as follows. Section 62 “1. Anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that an individual act on the part of a State body, a body of local or regional self-government, or a legal person with public authority, concerning his or her rights and obligations or a suspicion or accusation of a criminal deed, has violated his or her human rights or fundamental freedoms or his or her right to local or regional self-government guaranteed by the Constitution (hereinafter ‘ a constitutional right ’ ). 2. If another legal remedy exists in respect of the violation of the constitutional right [complained of], a constitutional complaint may be lodged only after that remedy has been used. ...” 3. Real Property Transfer Tax Act 24. The relevant provisions of the Real Property Transfer Tax Act ( Zakon o porezu na promet nekretnina, Official Gazette nos. 69/1997, 26/2000, 127/2000 and 153/2002) at the material time read as follows. Section 11 “The real property transfer tax shall not be paid by: ... (9) a citizen who is buying his or her first real property (flat or house) in order to meet his or her housing needs provided that: ... (9.3) the surface area of the real property, depending on the number of members of the citizen ’ s immediate family, does not surpass: ... – for five persons, up to 100 square metres, ... (9.5) the citizen, or members of his or her immediate family, do not have other real property (a flat or a house) which meets their housing needs. Such real property (a flat or a house) meeting housing needs includes any accommodation which has basic infrastructure and satisfies hygiene and technical requirements. ... (9.6) the citizen and the members of his or her immediate family do not own a flat, a holiday house and other real property of a significant value. Another property of a significant value is a piece of land where construction is allowed and business premises where the citizen or his or her immediate family members do not perform a registered [business] activity, and the value of the real property is similar to the value of the real property (flat or house) which the citizen is buying. ... (15) the citizens who have already used their right to a real property transfer tax exemption under subsections (9), (11) and (13) [of this section] do not have a right to another real property transfer tax exemption.” 4. By-law on the accessibility of buildings for persons with disabilities and reduced mobility 25. The relevant provisions of the by-law on the accessibility of buildings for persons with disabilities and reduced mobility ( Pravilnik o pristupačnosti građevina osobama s invaliditetom i smanjene pokretljivosti, Official Gazette nos. 151/2005 and 61/2007) provide the following. Section 1 “This by-law lays down the conditions for and the manner of securing unobstructed access, mobility, stay and work for persons with disabilities and reduced mobility (hereafter, ‘ accessibility ’ ) as well as [the manner of] improving the accessibility of buildings for ... residential ... purposes ...” Section 2 “The accessibility, improvement of accessibility and the [methods for] conforming to the accessibility of buildings referred to in section 1 of this by-law shall be secured by mandatory building design and construction of the buildings so as to secure the elements of accessibility and/or to conform to the conditions of use of [mobility] devices for persons with disabilities ... as laid down in this by-law.” III. RELEVANT INTERNATIONAL MATERIAL A. United Nations 1. Convention on the Rights of Persons with Disabilities 34. The relevant parts of the United Nations Convention on the Rights of Persons with Disabilities (CRPD), 24 January 2007, UN Doc. A/RES/61/106, ratified by Croatia on 15 August 2007, provide as follows: Article 2 Definitions “For the purposes of the present Convention: ... ‘ Reasonable accommodation ’ means necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms; ...” Article 3 General principles “The principles of the present Convention shall be: ... (b) Non-discrimination; ... (f) Accessibility; ...” Article 4 General obligations “1. States Parties undertake to ensure and promote the full realization of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability. To this end, States Parties undertake: (a) To adopt all appropriate legislative, administrative and other measures for the implementation of the rights recognized in the present Convention; (b) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities; (c) To take into account the protection and promotion of the human rights of persons with disabilities in all policies and programmes: (d) To refrain from engaging in any act or practice that is inconsistent with the present Convention and to ensure that public authorities and institutions act in conformity with the present Convention; (e) To take all appropriate measures to eliminate discrimination on the basis of disability by any person, organization or private enterprise; ... 2. With regard to economic, social and cultural rights, each State Party undertakes to take measures to the maximum of its available resources and, where needed, within the framework of international cooperation, with a view to achieving progressively the full realization of these rights, without prejudice to those obligations contained in the present Convention that are immediately applicable according to international law. ...” Article 5 Equality and non-discrimination “1. States Parties recognize that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law. 2. States Parties shall prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds. 3. In order to promote equality and eliminate discrimination, States Parties shall take all appropriate steps to ensure that reasonable accommodation is provided. 4. Specific measures which are necessary to accelerate or achieve de facto equality of persons with disabilities shall not be considered discrimination under the terms of the present Convention.” Article 7 Children with disabilities “1. States Parties shall take all necessary measures to ensure the full enjoyment by children with disabilities of all human rights and fundamental freedoms on an equal basis with other children. 2. In all actions concerning children with disabilities, the best interests of the child shall be a primary consideration. ...” Article 9 Accessibility “1. To enable persons with disabilities to live independently and participate fully in all aspects of life, States Parties shall take appropriate measures to ensure to persons with disabilities access, on an equal basis with others, to the physical environment, to transportation, to information and communications, including information and communications technologies and systems, and to other facilities and services open or provided to the public, both in urban and in rural areas. These measures, which shall include the identification and elimination of obstacles and barriers to accessibility, shall apply to, inter alia: (a) Buildings, roads, transportation and other indoor and outdoor facilities, including schools, housing, medical facilities and workplaces; (b) Information, communications and other services, including electronic services and emergency services. ...” Article 19 Living independently and being included in the community “States Parties to the present Convention recognize the equal right of all persons with disabilities to live in the community, with choices equal to others, and shall take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community, including by ensuring that: (a) Persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement; (b) Persons with disabilities have access to a range of in-home residential and other community support services, including personal assistance necessary to support living and inclusion in the community, and to prevent isolation or segregation from the community; ...” Article 20 Personal mobility “States Parties shall take effective measures to ensure personal mobility with the greatest possible independence for persons with disabilities, including by: (a) Facilitating the personal mobility of persons with disabilities in the manner and at the time of their choice, and at affordable cost; (b) Facilitating access by persons with disabilities to quality mobility aids, devices, assistive technologies and forms of live assistance and intermediaries, including by making them available at affordable cost; ...” Article 28 Adequate standard of living and social protection “1. States Parties recognize the right of persons with disabilities to an adequate standard of living for themselves and their families, including adequate food, clothing and housing, and to the continuous improvement of living conditions, and shall take appropriate steps to safeguard and promote the realization of this right without discrimination on the basis of disability. ...” 2. Practice of the United Nations Committee on the Rights of Persons with Disabilities (“the CRPD Committee”) 35. In its General Comment No. 2 (2014) on Article 9: Accessibility, 22 May 2014, UN Doc. CRPD/C/GC/2, the CRPD Committee noted the following. “1. Accessibility is a precondition for persons with disabilities to live independently and participate fully and equally in society. Without access to the physical environment, to transportation, to information and communication, including information and communications technologies and systems, and to other facilities and services open or provided to the public, persons with disabilities would not have equal opportunities for participation in their respective societies. ... 29. It is helpful to mainstream accessibility standards that prescribe various areas that have to be accessible, such as the physical environment in laws on construction and planning, transportation in laws on public aerial, railway, road and water transport, information and communication, and services open to the public. However, accessibility should be encompassed in general and specific laws on equal opportunities, equality and participation in the context of the prohibition of disability-based discrimination. Denial of access should be clearly defined as a prohibited act of discrimination. Persons with disabilities who have been denied access to the physical environment, transportation, information and communication, or services open to the public should have effective legal remedies at their disposal. When defining accessibility standards, States parties have to take into account the diversity of persons with disabilities and ensure that accessibility is provided to persons of any gender and of all ages and types of disability. Part of the task of encompassing the diversity of persons with disabilities in the provision of accessibility is recognizing that some persons with disabilities need human or animal assistance in order to enjoy full accessibility (such as personal assistance, sign language interpretation, tactile sign language interpretation or guide dogs). It must be stipulated, for example, that banning guide dogs from entering a particular building or open space would constitute a prohibited act of disability-based discrimination.” 3. Practice of the United Nations Committee on Economic, Social and Cultural Rights (CESCR) 36. In its General Comment No. 5: Persons with Disabilities, 9 December 1994, UN Doc. E/1995/22 the CESCR noted the following. “ 3. The obligation to eliminate discrimination on the grounds of disability 15. Both de jure and de facto discrimination against persons with disabilities have a long history and take various forms. They range from invidious discrimination, such as the denial of educational opportunities, to more ‘ subtle ’ forms of discrimination such as segregation and isolation achieved through the imposition of physical and social barriers. For the purposes of the Covenant, ‘ disability-based discrimination ’ may be defined as including any distinction, exclusion, restriction or preference, or denial of reasonable accommodation based on disability which has the effect of nullifying or impairing the recognition, enjoyment or exercise of economic, social or cultural rights. Through neglect, ignorance, prejudice and false assumptions, as well as through exclusion, distinction or separation, persons with disabilities have very often been prevented from exercising their economic, social or cultural rights on an equal basis with persons without disabilities. The effects of disability-based discrimination have been particularly severe in the fields of education, employment, housing, transport, cultural life, and access to public places and services.” 37. The CESCR reaffirmed its General Comment No. 5 in its General Comment No. 20: Non-discrimination in economic, social and cultural rights, 2 July 2009, UN Doc. E/C.12/GC/20, in the following terms. “ B. Other status 27. The nature of discrimination varies according to context and evolves over time. A flexible approach to the ground of ‘ other status ’ is thus needed in order to capture other forms of differential treatment that cannot be reasonably and objectively justified and are of a comparable nature to the expressly recognized grounds in article 2, paragraph 2. These additional grounds are commonly recognized when they reflect the experience of social groups that are vulnerable and have suffered and continue to suffer marginalization. ... Disability 28. In its general comment No. 5, the Committee defined discrimination against persons with disabilities as ‘ any distinction, exclusion, restriction or preference, or denial of reasonable accommodation based on disability which has the effect of nullifying or impairing the recognition, enjoyment or exercise of economic, social or cultural rights ’. The denial of reasonable accommodation should be included in national legislation as a prohibited form of discrimination on the basis of disability. States parties should address discrimination, such as prohibitions on the right to education, and denial of reasonable accommodation in public places such as public health facilities and the workplace, as well as in private places, e.g. as long as spaces are designed and built in ways that make them inaccessible to wheelchairs, such users will be effectively denied their right to work.” B. Council of Europe 1. Committee of Ministers Recommendation Rec(2006)5 38. The relevant parts of Recommendation Rec(2006)5 of the Committee of Ministers to member States on the Council of Europe Action Plan to promote the rights and full participation of people with disabilities in society: improving the quality of life of people with disabilities in Europe 2006-2015, of 5 April 2006, read as follows. “ 1.2. Fundamental principles and strategic goals 1.2.1. Fundamental principles Member states will continue to work within anti-discriminatory and human rights frameworks to enhance independence, freedom of choice and the quality of life of people with disabilities and to raise awareness of disability as a part of human diversity. Due account is taken of relevant existing European and international instruments, treaties and plans, particularly the developments in relation to the draft United Nations international convention on the rights of persons with disabilities. ... 1.3. Key action lines ... People with disabilities should be able to live as independently as possible, including being able to choose where and how to live. Opportunities for independent living and social inclusion are first and foremost created by living in the community. Enhancing community living (No. 8) requires strategic policies which support the move from institutional care to community-based settings, ranging from independent living arrangements to sheltered, supportive living in small-scale settings. It also implies a co-ordinated approach in the provision of user-driven, community-based services and person-centred support structures. ... 2.7. Fundamental principles The fundamental principles which govern this Action Plan are: – non-discrimination; – equality of opportunities; – full participation in society of all persons with disabilities; ... 4.3. People with disabilities in need of high level of support ... 4.4. Children and young people with disabilities The needs of children with disabilities and their families must be carefully assessed by responsible authorities with a view to providing measures of support which enable children to grow up with their families, to be included in the community and local children ’ s life and activities. Children with disabilities need to receive education to enrich their lives and enable them to reach their maximum potential. Quality service provision and family support structures can ensure a rich and developing childhood and lay the foundation for a participative and independent adult life. It is important therefore that policy makers take into account the needs of children with disabilities and their families when designing disability policies and mainstream policies for children and families.” 2. Parliamentary Assembly Resolution 1642(2009) on access to rights for people with disabilities and their full and active participation in society, reaffirmed by Parliamentary Assembly Recommendation 1854 (2009) of 26 January 2009 39. The relevant parts of Parliamentary Assembly Resolution 1642(2009) on access to rights for people with disabilities and their full and active participation in society read as follows. “8. The Assembly considers that in order to enable the active participation of people with disabilities in society, it is imperative that the right to live in the community be upheld. It invites member states to: ... 8.2. provide adequate and sustained assistance to families, above all through human and material (particularly financial) means, to enable them to support their disabled family member at home; ... 12. The Assembly considers that the creation of a society for all implies equal access for all citizens to the environment in which they live. ...” C. European Union 40. The relevant provisions of the Charter of Fundamental Rights of the European Union (2000/C 364/01) read as follows. Article 21 Non-discrimination “1. Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited. 2. Within the scope of application of the Treaty establishing the European Community and of the Treaty on European Union, and without prejudice to the special provisions of those Treaties, any discrimination on grounds of nationality shall be prohibited.” Article 26 Integration of persons with disabilities “The Union recognises and respects the right of persons with disabilities to benefit from measures designed to ensure their independence, social and occupational integration and participation in the life of the community.” 41. On 17 July 2008, in its judgment in S. Coleman v. Attridge Law and Steve Law (C-303/06, ECLI:EU:C:2008:415), the Grand Chamber of the European Court of Justice (ECJ) addressed the question whether Directive 2000/78 of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, should be interpreted as prohibiting direct discrimination on grounds of disability only in respect of an employee who is himself disabled, or whether the principle of equal treatment and the prohibition of direct discrimination applied equally to an employee who is not himself disabled but who is treated less favourably by reason of the disability of his child, for whom he is the primary provider of the care required by virtue of the child ’ s condition. In this connection, the ECJ concluded as follows. “56. ... Directive 2000/78, and, in particular, Articles 1 and 2(1) and (2)(a) thereof, must be interpreted as meaning that the prohibition of direct discrimination laid down by those provisions is not limited only to people who are themselves disabled. Where an employer treats an employee who is not himself disabled less favourably than another employee is, has been or would be treated in a comparable situation, and it is established that the less favourable treatment of that employee is based on the disability of his child, whose care is provided primarily by that employee, such treatment is contrary to the prohibition of direct discrimination laid down by Article 2(2)(a).” 42. On 16 July 2015, in its judgment in CHEZ Razpredelenie Bulgaria AD v. Komisia za zashtita ot diskriminatsia (C ‑ 83/14, ECLI:EU:C:2015:480), the Grand Chamber of the ECJ addressed the question of indirect discrimination on the grounds of ethnic origin relating to the interpretation of Directive 2000/43/EC of 29 June 2000, implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, and the Charter of Fundamental Rights of the European Union, in particular whether the principle of equal treatment should benefit only persons who actually possess the racial or ethnic origin concerned or also persons who, although not being of the racial or ethnic origin in question, nevertheless suffer less favourable treatment on those grounds. The relevant part of the judgment reads as follows. “56. ... the Court ’ s case-law, already recalled in paragraph 42 of the present judgment, under which the scope of Directive 2000/43 cannot, in the light of its objective and the nature of the rights which it seeks to safeguard, be defined restrictively, is, in this instance, such as to justify the interpretation that the principle of equal treatment to which that directive refers applies not to a particular category of person[s] but by reference to the grounds mentioned in Article 1 thereof, so that that principle is intended to benefit also persons who, although not themselves a member of the race or ethnic group concerned, nevertheless suffer less favourable treatment or a particular disadvantage on one of those grounds (see, by analogy, judgment in Coleman, C ‑ 303/06, EU:C:2008:415, paragraphs 38 and 50).” THE LAW I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TAKEN ALONE AND IN CONJUNCTION WITH ARTICLE 14 OF THE CONVENTION 43. The applicant complained of alleged discrimination occasioned by the unfair application of domestic tax legislation. He relied on Article 14 of the Convention and Article 1 of Protocol No. 1, which read as follows: Article 14 “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” Article 1 of Protocol No. 1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” A. Admissibility 1. The parties ’ submissions 44. The Government argued that the applicant had failed to raise his complaint of discrimination during the proceedings before the administrative authorities concerning the adoption of the decision on his request for tax exemption. In particular, he had not relied on the provisions of the Prevention of Discrimination Act in his appeal against the first-instance decision, nor had he raised the matter in his administrative action before the High Administrative Court. Moreover, he could have instituted separate civil proceedings for damages under the Prevention of Discrimination Act but had failed to avail himself of that opportunity. He had thus failed to use the effective domestic remedies concerning the allegations of discrimination. The Government conceded that the Constitutional Court had not declared the applicant ’ s constitutional complaint inadmissible for non-exhaustion of remedies, but they considered, without elaborating further on the matter, that the provision on exhaustion of remedies under the Constitutional Court Act had a different scope and meaning from the rule on exhaustion of remedies under the Convention. The Government also pointed out that in his constitutional complaint the applicant had failed to cite the exact provision of the Constitution guaranteeing the right to property. 45. The applicant submitted that he had properly exhausted remedies before the administrative authorities and the Constitutional Court. In particular, his complaints at the domestic level concerning the alleged discrimination by dint of unfair application of the tax legislation had not been so different as to require a separate examination of the discrimination from the property complaint. Accordingly, by properly exhausting the administrative remedies he had not been required to pursue any other remedy under the Prevention of Discrimination Act with the same objective since it was the Court ’ s well-established case-law that in the case of several potentially effective remedies an applicant was only required to use one of them. At all events, the Constitutional Court had not declared his constitutional complaint inadmissible for non-exhaustion of domestic remedies, which suggested that he had properly exhausted the relevant remedies before the administrative authorities. The applicant also emphasised that he had properly raised his complaints before the Constitutional Court, complaining in substance of a discriminatory violation of his property rights related to an unfair application of the tax legislation. 2. The Court ’ s assessment 46. The Court reiterates that under Article 35 § 1 of the Convention, it may only deal with an application after all domestic remedies have been exhausted. States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system, and those who wish to invoke the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged to use first the remedies provided by the national legal system. The obligation to exhaust domestic remedies therefore requires an applicant to make normal use of remedies which are available and sufficient in respect of his or her Convention grievances. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 70-71, 25 March 2014, and Gherghina v. Romania (dec.) [GC], no. 42219/07, § 85, 9 July 2015). 47. Article 35 § 1 also requires that the complaints intended to be made subsequently in Strasbourg should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law and, further, that any procedural means that might prevent a breach of the Convention should have been used (see Vučković and Others, cited above, § 72). 48. However, in the event of there being a number of domestic remedies which an individual can pursue, that person is entitled to choose a remedy which addresses his or her essential grievance. In other words, when a remedy has been pursued, use of another remedy which has essentially the same objective is not required (see T.W. v. Malta [GC], no. 25644/94, § 34, 29 April 1999; Moreira Barbosa v. Portugal (dec.), no. 65681/01, ECHR 2004-V; Jeličić v. Bosnia and Herzegovina (dec.), no. 41183/02, ECHR 2005-XII; and Jasinskis v. Latvia, no. 45744/08, § 50, 21 December 2010). 49. The Court notes at the outset that it is undisputed between the parties that the Prevention of Discrimination Act provides two alternative avenues through which an individual can seek protection from discrimination. In particular, an individual may raise his or her complaint of discrimination in the proceedings concerning the main subject matter of a dispute, or he or she may opt for separate civil proceedings, as provided under section 17 of that Act (see paragraphs 26-27 above). 50. In the instant case, the applicant contended during the administrative proceedings that the competent tax authorities had failed to treat his situation differently when determining the question of tax exemption for solving his housing needs given the disability of his child and the needs of his family. However, the High Administrative Court considered those arguments irrelevant and declined to give any ruling to that effect (see paragraphs 15-16 above). The Court finds that the applicant thereby raised in substance his discrimination complaint concerning his property rights in these administrative proceedings (compare Glor v. Switzerland, no. 13444/04, § 55, ECHR 2009). He was therefore not required to pursue another remedy under the Prevention of Discrimination Act with essentially the same objective in order to meet the requirements of Article 35 § 1 of the Convention (see paragraph 48 above). 51. In any case, the Court notes that the Constitutional Court did not declare the applicant ’ s constitutional complaint inadmissible for non-exhaustion of legal remedies, as was its practice in other cases concerning discrimination complaints where the appellants had not properly exhausted remedies before the lower domestic authorities (see paragraphs 29-30 above). Accordingly, the Court has no reason to doubt the applicant ’ s proper use of remedies before the administrative and judicial authorities (see Vladimir Romanov v. Russia, no. 41461/02, § 52, 24 July 2008; Bjedov v. Croatia, no. 42150/09, § 48, 29 May 2012; and Zrilić v. Croatia, no. 46726/11, § 49, 3 October 2013). 52. As to the Government ’ s argument that the applicant had failed to cite the exact provision of the Constitution guaranteeing the right to property in his constitutional complaint, the Court notes that the applicant expressly relied on Article 14 of the Constitution, guaranteeing protection from discrimination, and complained of discrimination by the allegedly unfair application of the relevant tax legislation (see paragraph 17 above). By explicitly raising his discrimination complaint, which was in substance related to his property rights, he thereby provided the Constitutional Court with the opportunity which is in principle intended to be afforded to Contracting States by Article 35 § 1 of the Convention of putting right the violations alleged against them (see, among many other authorities, Gäfgen v. Germany [GC], no. 22978/05, §§ 144-46, ECHR 2010; Lelas v. Croatia, no. 55555/08, § 51, 20 May 2010; Karapanagiotou and Others v. Greece, no. 1571/08, § 29, 28 October 2010; Bjedov, cited above, § 48; Tarbuk v. Croatia, no. 31360/10, § 32, 11 December 2012; and Jaćimović v. Croatia, no. 22688/09, §§ 40-41, 31 October 2013). 53. The Court therefore rejects the Government ’ s objection. It also notes that the applicant ’ s complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. B. Merits 1. The parties ’ submissions (a) The applicant 54. The applicant submitted that the domestic authorities had established his liability to pay the tax on the basis of an imprecise and unforeseeable provision and without a proper assessment of the particular circumstances of his case. Moreover, they had failed to make any assessment of proportionality of the interference with his property rights. The applicant therefore considered that the refusal to grant him the tax exemption imposed an excessive individual burden on him, contrary to Article 1 of Protocol No. 1. While the applicant accepted that the domestic authorities enjoyed a wide margin of appreciation in matters of taxation, he pointed out that according to the Court ’ s well-established case-law their discretion could not be exercised in a manner incompatible with Article 14 of the Convention. 55. The applicant pointed out that the reason for the rejection of his request for tax exemption was the fact that, under the domestic authorities ’ understanding of section 11(9.5) of the Real Property Transfer Act, the flat which he had owned had been suitable for the housing needs of his family, in view of its surface area (section 11(9.3) of the Real Property Transfer Act) and other infrastructural requirements. Further conditions, such as value of the previously owned property (section 11(9.6) of the Real Property Transfer Act), had had no bearing in the domestic authorities ’ assessment of his case. This had suggested that in a case such as his, where an individual had already owned a real property, the relevant law envisaged the assessment of the suitability of the previously owned property as the central element for deciding on requests for tax exemption when buying a new real property suitable for living. However, in the applicant ’ s view, the domestic authorities had failed to conduct a proper assessment of the circumstances of his case and thus obviously deprived him of adequate procedural means for the protection of his rights. 56. The applicant also pointed out that he had not sought any preferential status but had merely requested the authorities to exempt him from the obligation to pay tax due to the particular circumstances of his case. To the applicant, it was obvious that he had not sought tax exemption so as to become unjustly enriched, since he had sold his old flat in order to buy a smaller real property adapted to the his family ’ s needs in relation to his son ’ s disability. 57. The applicant further argued that accessibility, as a fundamental feature of housing, qualified as a basic infrastructure to be provided equally for all. Thus, any difference in treatment in that respect would imply discrimination. Moreover, in the light of the principle of reasonable accommodation, the decisions of the domestic authorities, which failed to adapt the definitions they had used with regard to the particular needs of persons with disabilities, suggested indirect discrimination or discrimination by failure to treat differently people whose situations significantly differed. 58. In the applicant ’ s view, the reason for the discrimination was disability by association vis-à-vis the needs of his son, which had been ignored by the competent domestic authorities. In particular, their assessment of the basic infrastructural requirements for appropriate housing had been conducted with regard to the needs of able-bodied people, ignoring the fact that the existence of a lift for a disabled person was a fundamental and indispensable feature for housing necessary for easy and unencumbered access. The authorities had thus discriminated against him by failing to interpret the term “property that satisfies a family ’ s housing needs” in a way that took into consideration the accessibility of the property in question. This discriminatory treatment, in the applicant ’ s view, had no reasonable justification, particularly given that the problem of accessibility impeded his son ’ s ability to leave the flat, thereby restricting all his other rights, such as those to adequate health treatment, education and personal development. That consequently affected the entire family, which had had to cope with the problem of accessibility and also to bear a significant financial burden related to the son ’ s disability. (b) The Government 59. The Government accepted that there had been an interference with the applicant ’ s property rights, but considered that such interference had been lawful, that it had pursued a legitimate aim of securing public finances and that it had been proportionate. Specifically, the Government stressed that the State enjoyed a wide margin of appreciation in tax matters and that the domestic authorities had been best placed to assess individual cases. In the applicant ’ s case, the domestic authorities had sufficiently taken into account his personal situation but had considered that he could not be exempted from taxation as he had not met the requirements under the relevant domestic law. 60. In particular, the Government submitted that section 11 of the Real Property Transfer Act clearly stated that a tax exemption could be granted only if the conditions under that provision had been cumulatively met. In the case in issue, the applicant had failed to meet two conditions. Firstly, the flat he had owned at the time when he had bought the house objectively satisfied the requirements for adequate housing for him and his family. It had basic infrastructure and satisfied hygiene and technical requirements, and the tax authorities had no discretion in assessing the term “housing needs”. In the Government ’ s view, the tax authorities were neither equipped nor competent to objectively assess the numerous specific housing needs of persons who sought tax exemption. With regard to the second condition, the Government submitted that the applicant had not met the value requirement in that he had owned a flat of significant value. Therefore, the fact that the building was not equipped with a lift had been irrelevant. It was in fact the intention of the relevant domestic law to provide tax exemption in order to assist individuals who were buying their first real property, and in particular those without property of significant value. In the case in issue, the domestic authorities had acted within their margin of appreciation, and had accordingly assessed that the applicant did not need any such financial assistance, which had led them to dismiss his request for tax exemption. Accordingly, in the Government ’ s view, no excessive individual burden had been imposed on the applicant. 61. The Government also argued that there had been no discriminatory treatment of the applicant in relation to his child ’ s disability because the reason for the dismissal of his tax-exemption request was his financial situation. This had an objective and reasonable justification in that the State had sought to protect financially disadvantaged individuals. The applicant did not belong to that category of persons since he had owned a satisfactory flat. 62. The Government further stressed that the State, as a Party to the Convention on the Rights of Persons with Disabilities (CRPD), had implemented a number of positive measures aimed at ensuring accessibility for disabled people, and that almost seventy per cent of public buildings in Zagreb had been adapted for that purpose. Moreover, a recent visit to Croatia by the United Nations Special Rapporteur on Disability had commended those efforts expended by the State. With regard, in particular, to the tax exemptions set out in the Real Property Transfer Act, the Government stressed that the positive measures implemented by the State were primarily aimed at financially disadvantaged individuals and that they could not address the needs of all vulnerable groups. However, the State had put in place various tax benefits for disabled persons relating, for instance, to income and health-services taxation. Moreover, in harmonising its activities with the relevant international standards, the State had adopted a National Strategy to Secure Equal Opportunities for Persons with Disabilities 2007-2015, and was actively implementing various measures at national and local levels in order to meet the needs of disabled people. (c) The third-party interveners 63. The third-party interveners submitted that the Court should have regard to the relevant standards of the CRPD, particularly those concerning the concepts of accessibility, non-discrimination and reasonable accommodation, in assessing the State ’ s compliance with its Convention obligations concerning people with disabilities. They emphasised the intimate link between accessibility and reasonable accommodation, which were both ultimately geared to ensuring the effective enjoyment and exercise of the rights of such people on an equal footing with others. There were, however, differences between the two concepts, in that the general accessibility requirement should be met in anticipation of the accessibility needs of the disabled population, whereas reasonable accommodation included specific measures for a particular disabled individual, which had to be implemented immediately. 64. The third-party interveners further pointed out that international human rights law now demanded the prohibition of discrimination by association, which concerned cases of discrimination against an individual on the grounds not of his or her own characteristics but of his or her relation to someone else with the relevant characteristics. This principle was well established in several jurisdictions across Europe, and was also set out in the Croatian Prevention of Discrimination Act. Moreover, international human rights mechanisms had been increasingly calling for positive State action to ensure access to housing by persons with disabilities. National jurisdictions, particularly within the European Union, had started to implement the relevant measures, which also included tax rebates or exemptions. 65. The third-party interveners also argued that persons with disabilities had to be able to exercise their rights without discrimination. Moreover, living in inaccessible homes impeded participation in the life of the community and led to isolation and the segregation of disabled individuals and their entire families. In particular, they emphasised that failure to provide reasonable accommodation amounted to discrimination based on disability. 2. The Court ’ s assessment (a) General principles 66. The Court notes that the central tenet of the applicant ’ s complaint is his alleged discriminatory treatment in the application of the relevant tax legislation, contrary to Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1. The Court will therefore address his complaint in this respect on the basis of the relevant principles flowing from its case-law under Article 14 of the Convention. 67. The Court has consistently held that Article 14 complements the other substantive provisions of the Convention and its Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded thereby. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts in issue fall within the ambit of one or more of them. The prohibition of discrimination enshrined in Article 14 thus extends beyond the enjoyment of the rights and freedoms which the Convention and the Protocols thereto require each State to guarantee. It applies also to those additional rights, falling within the general scope of any Convention Article, for which the State has voluntarily decided to provide (see, among many other authorities, E.B. v. France [GC], no. 43546/02, §§ 47-48, 22 January 2008, and Carson and Others v. the United Kingdom [GC], no. 42184/05, § 63, ECHR 2010). 68. The Court has established in its case-law that only differences in treatment based on an identifiable characteristic, or status, are capable of amounting to discrimination within the meaning of Article 14 (see Eweida and Others v. the United Kingdom, nos. 48420/10 and 3 others, § 86, ECHR 2013). 69. Generally, in order for an issue to arise under Article 14 there must be a difference in the treatment of persons in analogous, or relevantly similar, situations (see X and Others v. Austria [GC], no. 19010/07, § 98, ECHR 2013). However, not every difference in treatment will amount to a violation of Article 14. A difference of treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised (see Fabris v. France [GC], no. 16574/08, § 56, ECHR 2013; Weller v. Hungary, no. 44399/05, § 27, 31 March 2009; and Topčić-Rosenberg v. Croatia, no. 19391/11, § 36, 14 November 2013). 70. Moreover, Article 14 does not prohibit Contracting Parties from treating groups differently in order to correct “factual inequalities” between them. Indeed, the right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different ( see Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000-IV; Stec and Others v. the United Kingdom [GC], nos. 65731/01 and 65900/01, § 51, ECHR 2006 ‑ VI; and Sejdić and Finci v. Bosnia and Herzegovina [GC], nos. 27996/06 and 34836/06, § 44, ECHR 2009). 71. The Court has also accepted that a general policy or measure that has disproportionately prejudicial effects on a particular group may be considered discriminatory notwithstanding that it is not specifically aimed at that group, and that discrimination potentially contrary to the Convention may result from a de facto situation (see D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 175, ECHR 2007 ‑ IV, and Kurić and Others v. Slovenia [GC], no. 26828/06, § 388, ECHR 2012). This is only the case, however, if such policy or measure has no “objective and reasonable” justification, that is, if it does not pursue a “legitimate aim” or if there is not a “reasonable relationship of proportionality” between the means employed and the aim sought to be realised (see S.A.S. v. France [GC], no. 43835/11, § 161, ECHR 2014). 72. The Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment. The scope of the margin of appreciation will vary according to the circumstances, the subject matter and the background. The same is true with regard to the necessity to treat groups differently in order to correct “factual inequalities between them” (see Stummer v. Austria [GC], no. 37452/02, § 88, ECHR 2011). 73. On the one hand, a wide margin is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy, for example (see Hämäläinen v. Finland [GC], no. 37359/09, § 109, ECHR 2014). This also includes measures in the area of taxation. However, any such measures must be implemented in a non-discriminatory manner and comply with the requirements of proportionality (see R.Sz. v. Hungary, no. 41838/11, § 54, 2 July 2013). On the other hand, if a restriction on fundamental rights applies to a particularly vulnerable group in society that has suffered considerable discrimination in the past, then the State ’ s margin of appreciation is substantially narrower and it must have very weighty reasons for the restrictions in question. The reason for this approach, which questions certain classifications per se, is that such groups were historically subject to prejudice with lasting consequences, resulting in their social exclusion. Such prejudice could entail legislative stereotyping which prohibits the individualised evaluation of their capacities and needs. The Court has already identified a number of such vulnerable groups that suffered different treatment on account of their characteristic or status, including disability (see Glor, cited above, § 84; Alajos Kiss v. Hungary, no. 38832/06, § 42, 20 May 2010; and Kiyutin v. Russia, no. 2700/10, § 63, ECHR 2011). Moreover, with regard to all actions concerning children with disabilities the best interest of the child must be a primary consideration (see paragraph 34 above; Article 7 § 2 of the CRPD). In any case, however, irrespective of the scope of the State ’ s margin of appreciation, the final decision as to the observance of the Convention ’ s requirements rests with the Court (see, inter alia, Konstantin Markin v. Russia [GC], no. 30078/06, § 126, ECHR 2012). 74. Lastly, as regards the burden of proof in relation to Article 14 of the Convention, the Court has held that once the applicant has shown a difference in treatment, it is for the Government to show that it was justified (see D.H. and Others v. the Czech Republic, cited above, § 177; Kurić and Others, cited above, § 389; and Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09, § 85, ECHR 2013). (b) Application of these principles to the present case (i) Whether the facts underlying the complaint fall within the scope of Article 1 of Protocol No. 1 75. The Court notes that it is undisputed between the parties that the circumstances of the present case, concerning matters of taxation, fall within the scope of Article 1 of Protocol No. 1, rendering Article 14 of the Convention applicable. The Court sees no reason to hold otherwise (see, for example, Burden v. the United Kingdom [GC], no. 13378/05, § 59, ECHR 2008). (ii) Whether the disability of the applicant ’ s child brought the applicant ’ s situation within the term “other status” in Article 14 of the Convention 76. The Court has already held that a person ’ s health status, including disability and various health impairments fall within the term “other status” in the text of Article 14 of the Convention (see Glor, cited above, § 80; Kiyutin, cited above, § 57; and I.B. v. Greece, no. 552/10, § 73, ECHR 2013). 77. The present case concerns a situation in which the applicant did not allege discriminatory treatment related to his own disability but rather his alleged unfavourable treatment on the basis of the disability of his child, with whom he lives and for whom he provides care. In other words, in the present case the question arises to what extent the applicant, who does not himself belong to a disadvantaged group, nevertheless suffers less favourable treatment on grounds relating to the disability of his child (see paragraphs 41-42 above). 78. In this connection the Court reiterates that the words “other status” have generally been given a wide meaning in its case-law (see Carson and Others, cited above, § 70) and their interpretation has not been limited to characteristics which are personal in the sense that they are innate or inherent (see Clift v. the United Kingdom, no. 7205/07, §§ 56-59, 13 July 2010). For example, a discrimination issue arose in cases where the applicants ’ status, which served as the alleged basis for discriminatory treatment, was determined in relation to their family situation, such as their children ’ s place of residence (see Efe v. Austria, no. 9134/06, § 48, 8 January 2013). It thus follows, in the light of its objective and nature of the rights which it seeks to safeguard, that Article 14 of the Convention also covers instances in which an individual is treated less favourably on the basis of another person ’ s status or protected characteristics. 79. The Court therefore finds that the alleged discriminatory treatment of the applicant on account of the disability of his child, with whom he has close personal links and for whom he provides care, is a form of disability-based discrimination covered by Article 14 of the Convention. (iii) Whether there was a difference of treatment between persons in relevantly similar positions or a failure to treat differently persons in relevantly different situations 80. The Court further observes that the applicant alleged discriminatory treatment in the application of the domestic real property tax legislation in comparison to other persons purchasing real property in order to meet their housing needs, under circumstances where the property which they owned fell short of the housing needs of their families. In particular, the applicant contended that by selling his flat, situated on the third floor of a residential building in Zagreb, and moving to a house in Samobor, he had for the first time created housing conditions suited to his family ’ s situation after the birth of his disabled child. This specifically relates to the fact that the residential building in which the flat was located was not equipped with a lift, making it increasingly difficult, as his son grew, for the applicant and his family to take him out of the flat to see a doctor, or to take him for physiotherapy and to kindergarten or school, and to meet his other social needs (see paragraph 10 above). 81. The Court notes that it is undisputed between the parties that the applicant ’ s son was a person with profound and multiple disabilities and that he required full-time care and attention. This also conclusively follows from the report of the social care services which declared him 100% disabled (see paragraph 9 above). This raises the question whether the applicant ’ s flat could be considered as accommodation meeting the housing needs of his family after the birth of his disabled child. 82. In the Court ’ s view, there can be no question that the applicant ’ s flat in Zagreb, which he had bought three years before the birth of his son, situated on the third floor of a residential building without a lift, severely impaired his son ’ s mobility and consequently threatened his personal development and ability to reach his maximum potential, making it extremely difficult for him to participate fully in the community and the educational, cultural and social activities available for children. The absence of a lift must have impaired the applicant ’ s family ’ s quality of life, particularly that of his son. The latter ’ s situation might be compared to that of an able-bodied person who, for example, had a flat on the third floor of a residential building without appropriate access to it, or had limited access to the necessary relevant public amenities. 83. The Court therefore finds that in seeking to replace the flat in question by buying a house that was adapted to the needs of his family, the applicant was in a comparable position to any other person replacing a flat or a house by buying another real property equipped with, in the words of the relevant domestic tax legislation, basic infrastructure and technical accommodation requirements (see paragraph 24 above). His situation nevertheless differed with regard to the meaning of the term “basic infrastructure requirements” which, in view of his son ’ s disability and the relevant national and international standards on the matter (see paragraphs 25 and 34-42 above), necessitated access to facilities such as, in the instant case, a lift. 84. However, the Court notes that the Samobor Tax Office considered that, given the surface area of the flat which the applicant had owned in Zagreb and the existence of infrastructure, such as electricity, water and access to other public utilities, it could not be said that the applicant had not had accommodation meeting the housing needs of his family. Accordingly, he was denied a tax exemption for the purchase of a property meeting the housing needs of his family, disregarding the applicant ’ s arguments concerning his family ’ s specific needs arising out of his child ’ s disability (see paragraphs 11-12 above). 85. That decision was upheld by the Finance Ministry and the High Administrative Court, pointing out that it could not be said that in buying the house the applicant had bought a property to meet his housing needs, given that, in their view, the flat he had owned met the basic infrastructure requirements. Again, as with the Samobor Tax Office, no consideration was given to the specific needs of the applicant ’ s family in terms of his child ’ s disability. Moreover, the High Administrative Court dismissed his arguments to that effect as irrelevant (see paragraphs 15 ‑ 16 above). The Constitutional Court also refrained from addressing the matter (see paragraph 18 above). 86. In view of the foregoing considerations, the Court finds that there is no doubt that the competent domestic authorities failed to recognise the factual specificity of the applicant ’ s situation with regard to the question of basic infrastructure and technical accommodation requirements to meet the housing needs of his family. The domestic authorities adopted an overly restrictive position on the applicant ’ s particular case, by failing to take into account the specific needs of the applicant and his family when applying the condition relating to “basic infrastructure requirements” to their particular case, as opposed to other cases where elements such as the surface area of a flat, or access to electricity, water and other public utilities, might have suggested adequate and sufficient basic infrastructure requirements. 87. It remains to be seen whether treating the applicant in the same way as any other buyer of real property had an objective and reasonable justification (see paragraphs 70 and 74 above). (iv) Whether there was objective and reasonable justification 88. In justifying the decisions of the domestic authorities, the Government advanced two arguments. They argued, firstly, that the relevant domestic law laid down objective criteria for establishing the existence of basic infrastructure requirements of adequate housing, which left the administrative tax authorities no room for interpretation in individual cases and, secondly, that the applicant had not met the financial requirements for a tax exemption in view of his financial situation. 89. The Court cannot but observe that the first argument virtually amounts to a concession on the Government ’ s part that the relevant domestic authorities were not empowered to seek a reasonable relationship of proportionality between the means employed and the aim sought to be realised in the applicant ’ s particular case. Therefore, contrary to the requirements of Article 14 of the Convention, they were unable to provide objective and reasonable justification for their failure to correct the factual inequality inherent in the applicant ’ s case (see paragraph 60 above). 90. Nevertheless, the Court, being well aware that it is in the first place for the national authorities, notably the courts, to interpret and apply domestic law (see Glor, cited above, § 91), notes that the relevant provision of the Real Property Transfer Act is couched in rather general terms referring merely to “basic infrastructure” and “hygiene and technical requirements” (see paragraph 24 above, section 11(9.5) of the Real Property Transfer Act). 91. The Court further observes that other relevant provisions of domestic law provide some guidance with regard to the question of basic requirements of accessibility for persons with disabilities. Thus, for instance, the by-law on the accessibility of buildings for persons with disabilities and reduced mobility considers the existence of a lift as one of the basic elements of accessibility for persons with disabilities (see paragraph 25 above). However, there is nothing to suggest that any of the competent domestic authorities in the present case gave any consideration to such enactments in the relevant domestic law capable of complementing the meaning of terms under the Real Property Transfer Act. 92. Moreover, the Court notes that by adhering to the requirements set out in the CRPD the respondent State undertook to take its relevant principles into consideration, such as reasonable accommodation, accessibility and non-discrimination against persons with disabilities with regard to their full and equal participation in all aspects of social life (see paragraphs 34-37 above), and in this sphere the domestic authorities have, as asserted by the Government, implemented certain relevant measures (see paragraph 62 above). In the case in question, however, the relevant domestic authorities gave no consideration to these international obligations which the State has undertaken to respect. 93. It accordingly follows, contrary to the Government ’ s assertions, that the issue in the instant case is not the fact that the relevant domestic legislation left no room for an individual evaluation of the tax-exemption requests of persons in the applicant ’ s situation. The issue in the present case is rather that the manner in which the legislation was applied in practice failed to sufficiently accommodate the requirements of the specific aspects of the applicant ’ s case related to the disability of his child and, in particular, to the interpretation of the term “basic infrastructure requirements” for the housing of a disabled person (compare Topčić ‑ Rosenberg, cited above, §§ 40-49). 94. Furthermore, according to the second argument advanced by the Government, the applicant was excluded from the beneficiaries of the real property transfer tax exemption on the ground of his financial situation, and in particular the value of the flat he had previously owned in Zagreb. The alleged reason for this was the fact that the tax exemption under the Real Property Transfer Act was intended to afford financial protection to disadvantaged persons which, in the Government ’ s view, the applicant was not (see paragraph 61 above). 95. The Court finds that, in principle, the protection of financially disadvantaged persons by means of the relevant measures of tax exemption could be considered as an objective justification for the alleged discriminatory treatment. Indeed, it would appear that the question of the financial situation of an individual applying for a real property transfer tax exemption was cumulatively relevant together with other factors when assessing his or her tax obligation (see paragraph 32 above and also paragraph 24 above, section 11(9.5) and (9.6) of the Real Property Transfer Tax Act). 96. However, as regards the applicant ’ s particular case, the Court notes that it follows from all the decisions of the competent domestic authorities that the reason for excluding the applicant from the scope of tax exemption was the fact that his flat in Zagreb was considered as meeting the basic infrastructure requirements for the housing needs of his family (see paragraphs 12, 14 and 16 above). The only reference to the financial aspect of the tax-exemption provision under the Real Property Transfer Act (see paragraph 24 above, section 11(9.6) of the Real Property Transfer Act) was made by the Finance Ministry (see paragraph 14 above). However, this was done without any concrete assessment of the relevant financial aspects of the applicant ’ s case, which was a well-established practice of the domestic authorities in other cases where that provision was relied upon (see paragraph 33 above). 97. Accordingly, accepting the Government ’ s argument to this effect would require the Court to speculate on the concrete relevance of the applicant ’ s financial situation for his tax-exemption request, within the meaning of the relevant domestic law (contrast Glor, cited above, § 90). The Court is therefore unable to accept that the protection of financially disadvantaged persons was the reason justifying the impugned discriminatory treatment of the applicant. 98. In view of the above, and in particular in the absence of the relevant evaluation of all the circumstances of the case by the competent domestic authorities, the Court does not find that they provided objective and reasonable justification for their failure to take into account the inequality inherent in the applicant ’ s situation when making an assessment of his tax obligation. 99. The Court therefore finds that there has been a violation of Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1. 100. This makes it unnecessary for the Court to consider separately the applicant ’ s complaint under Article 1 of Protocol No. 1 taken alone (see, for example, Zeman v. Austria, no. 23960/02, § 42, 29 June 2006). II. ALLEGED VIOLATION OF ARTICLES 8 AND 14 OF THE CONVENTION 101. The applicant complained of a breach of the right to respect for his private and family life and his home related to the unfair and discriminatory application of domestic tax legislation. He relied on Articles 8 and 14 of the Convention. 102. The Government contested those allegations. 103. In the circumstances of the present case, the Court is of the view that the inequality of treatment of which the applicant claimed to be a victim has been sufficiently taken into account in the above assessment that has led to the finding of a violation of Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1. Accordingly, it finds that – while this complaint is also admissible – there is no cause for a separate examination of the same facts from the standpoint of Articles 8 and 14 of the Convention (see, for example, Mazurek v. France, no. 34406/97, § 56, ECHR 2000 ‑ II, and Efe, cited above, § 55). III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 12 104. The applicant further complained that he was discriminated against by the manner of application of the tax legislation which failed to distinguish his situation from the general situation falling under the relevant provisions on tax exemption. He relied on Article 1 of Protocol No. 12. 105. The Government contested that argument. 106. The Court has already found that the manner of application of the tax legislation which failed to distinguish the applicant ’ s situation from the general situation falling under the relevant provisions on tax exemption amounted to discrimination in breach of Article 14 taken in conjunction with Article 1 of Protocol No. 1. 107. Having regard to that finding, the Court considers that it is not necessary to examine separately whether, in this case, there has also been a violation of Article 1 of Protocol No. 12 to the Convention (compare Sejdić and Finci, cited above, § 51, and Savez crkava “Riječ života” and Others v. Croatia, no. 7798/08, §§ 114-15, 9 December 2010). IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 108. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 109. The applicant claimed 11,010.00 euros (EUR) in respect of pecuniary damage concerning the amount of tax he had been obliged to pay, and EUR 10,000 in respect of non-pecuniary damage. 110. The Government considered the applicant ’ s claim excessive, unfounded and unsubstantiated. 111. As to the pecuniary damage claimed, the Court, having regard to its findings concerning Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1 (see paragraph 99 above) concerning the discrimination against the applicant related to the application of the domestic tax legislation, considers that it cannot speculate on the extent of the applicant ’ s domestic tax obligations, particularly related to the question whether his financial situation justifies a tax exemption (see paragraphs 95 ‑ 97 above). Thus, being unable to assess the applicant ’ s claim for pecuniary damage, the Court refers to the opportunity available to the applicant to request the reopening of the proceedings in accordance with section 76 of the Administrative Disputes Act (see paragraph 28 above), which would allow for a fresh examination of his claim at the domestic level. 112. On the other hand, the Court considers that the applicant must have sustained non-pecuniary damage which is not sufficiently compensated by the finding of a violation. Ruling on an equitable basis, it awards the applicant EUR 5,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on this amount. B. Costs and expenses 113. The applicant also claimed EUR 11,652.49 and 4,900 pounds sterling (approximately EUR 6,800) for the costs and expenses incurred before the domestic courts and for those incurred before the Court. 114. The Government considered the applicant ’ s claim unfounded and unsubstantiated. 115. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 11,500 covering costs under all heads, plus any tax that may be chargeable. C. Default interest 116. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 14 (prohibition of discrimination) of the Convention taken in conjunction with Article 1 (protection of property) of Protocol No. 1, finding that the Croatian State had failed to provide objective and reasonable justification for their lack of consideration of the inequality pertinent to the applicant’s situation. The Court noted in particular that, in excluding the applicant from tax exemption, the tax authorities and the domestic courts had not given any consideration to the specific needs of the applicant’s family related to the child’s disability. They had thus failed to recognise the factual specificity of the applicant’s situation with regard to the question of the basic infrastructure and technical accommodation required to meet the family’s housing needs. Moreover, by ratifying the United Nations Convention on the Rights of Persons with Disabilities21, Croatia was under an obligation to take into consideration relevant principles, such as reasonable accommodation, accessibility and non-discrimination against persons with disabilities with regard to their full and equal participation in all aspects of social life. However, the domestic authorities had disregarded those national and international obligations. Therefore, the manner in which the domestic legislation had been applied in practice had failed to sufficiently accommodate the requirements of the specific aspects of the applicant’s case. |
249 | Recent judgments and decisions of the Court | V. RELEVANT DOMESTIC LAW A. Criminal Code 1. Territorial jurisdiction 2. Prohibition of torture and offence of unlawful deprivation of liberty B. Code of Criminal Procedure VI. RELEVANT INTERNATIONAL LAW A. Vienna Convention on the Law of Treaties Article 26 “Pacta sunt servanda” Article 27 Internal law and observance of treaties B. International Covenant on Civil and Political Rights C. The UN Torture Convention D. UN Geneva Conventions 1. Geneva (III) Convention 2. Geneva (IV) Convention E. International Law Commission, 2001 Articles on Responsibility of States for Internationally Wrongful Acts F. UN General Assembly Resolution 60/147 THE LAW I. THE GOVERNMENT ’ S PRELIMINARY OBJECTIONS TO THE ADMISSIBILITY OF THE APPLICATION A. Romania ’ s lack of jurisdiction and responsibility under the Convention in respect of the applicant ’ s alleged rendition to Romania, detention and ill-treatment in a CIA detention facility in Romania and transfer out of Romania 1. The Government 2. The applicant 3. The Court ’ s assessment B. Non-compliance with the rule of exhaustion of domestic remedies and the six-month rule 1. The Government (a) Non-exhaustion of domestic remedies (b) Non-compliance with the six-month term 2. The applicant (a) Non-exhaustion of domestic remedies (b) Non-compliance with the six-month rule 3. The Court ’ s assessment II. THE COURT ’ S ESTABLISHMENT OF THE FACTS AND ASSESSMENT OF EVIDENCE A. The parties ’ positions on the facts and evidence 1. The Government (a) Lack of evidence demonstrating that a CIA ”black site” operated in Romania (i) Contradictory statements as to the “life cycle” of the alleged CIA ”black site” in Romania (ii) Contradictory statements as to the location of the alleged CIA ”black site” in Romania (b) Inconsistencies in the applicant ’ s account regarding the dates of his alleged rendition to and from Romania, and his secret detention in Romania (c) Lack of credibility of evidence adduced by the applicant, in particular the Marty 2006 and 2007 Reports, findings made by the Council of Europe ’ s Commissioner for Human Rights in 2009-2012, Reprieve research and CIA declassified documents (d) Lack of evidence demonstrating that certain planes landing in Romania between 22 September 2003 and 5 November 2005 carried out the CIA extraordinary rendition missions (e) Lack of evidence demonstrating that the Romanian authorities entered into “secret cooperation agreements” with the CIA and cooperated in the execution of the HVD Programme (f) Lack of evidence demonstrating that the Romanian high-office holders agreed to the running of a secret detention facility by the CIA on Romanian territory, provided premises and knew of the purposes of the impugned flights (g) Lack of evidence of Romania ’ s knowledge of the CIA HVD Programme at the material time 2. The applicant (a) As regards the existence of a CIA secret detention facility in Romania and the applicant ’ s secret detention in Romania (b) As regards the alleged inconsistencies in the applicant ’ s account regarding the dates of his rendition to and from Romania and his secret detention in Romania (c) As regards the planes landing in Romania between 22 September 2003 and 5 November 2005 (d) As regards the Government ’ s allegation of a lack of credibility of sources of information and evidence (e) As regards Romania ’ s ’ cooperation with the CIA and its complicity in the HVD Programme (f) As regards Romania ’ s knowledge of the HVD Programme at the material time B. Joint submissions by Amnesty International (AI) and the International Commission of Jurists (ICJ) on public knowledge of the US practices in respect of captured terrorist suspects C. The parties ’ positions on the standard and burden of proof 1. The Government 2. The applicant D. The Court ’ s assessment of the facts and evidence 1. Applicable principles deriving from the Court ’ s case-law 2. Preliminary considerations concerning the establishment of the facts and assessment of evidence in the present case 3. As regards the establishment of the facts and assessment of evidence relevant to the applicant ’ s allegations concerning his transfers and secret detention by the CIA before his rendition to Romania (mid-October 2002-April 2004) (a) Period from mid-October 2002 to 6 June 2003 (b) Whether the applicant ’ s allegations concerning his secret detention and transfers in CIA custody from 6 June 2003 (transfer out of Poland) to an unspecified two-digit date in April 2004 (transfer out of Guantánamo) were proved before the Court 4. As regards the establishments of the facts and assessment of evidence relevant to the applicant ’ s allegations concerning his rendition by the CIA to Romania, secret detention in Romania and transfer by the CIA out of Romania (12 April 2004 to 6 October or 5 November 2005) (a) Whether a CIA detention facility existed in Romania at the time alleged by the applicant (22 September 2003 – beginning of November 2005) (b) Whether the applicant ’ s allegations concerning his rendition to Romania, secret detention at the CIA Detention Site Black in Romania and transfer from Romania to another CIA secret detention facility elsewhere (from 12 April 2004 to 6 October 2005 or 5 November 2005) were proved before the Court (i) Preliminary considerations (ii) Transfers and secret detention (iii) The applicant ’ s treatment in CIA custody in Romania 5. As regards the establishment of the facts and assessment of evidence relevant to the applicant ’ s allegations concerning Romania ’ s knowledge of and complicity in the CIA HVD Programme (a) Relations of cooperation between the Romanian authorities and the CIA, including an agreement to host a detention facility, request for and acceptance of a “subsidy” from the CIA, provision of premises for the CIA and acquaintance with some elements of the HVD Programme (i) Agreement to host a CIA detention facility, request for and acceptance of a “subsidy” from the CIA and provision of premises for the CIA (ii) Acquiescence with some elements of the HVD Programme (b) Assistance in disguising the CIA rendition aircraft ’ s routes through Romania by means of the so-called “dummy” flight planning (c) Special procedure for CIA flights (d) Informal transatlantic meeting (e) Circumstances routinely surrounding HVDs transfers and reception at the CIA “black site” (f) Public knowledge of treatment to which captured terrorist suspects were subjected in US custody in 2002-2005 6. The Court ’ s conclusions as to Romania ’ s alleged knowledge of and complicity in the CIA HVD Programme III. ROMANIA ’ S JURISDICTION AND RESPONSIBILITY UNDER THE CONVENTION A. The parties ’ submissions B. The Court ’ s assessment 1. As regards jurisdiction 2. As regards the State ’ s responsibility for an applicant ’ s treatment and detention by foreign officials on its territory 3. As regards the State ’ s responsibility for an applicant ’ s removal from its territory 4. Conclusion as to the Romanian Government ’ s preliminary objection that Romania lacks jurisdiction and responsibility under the Convention IV. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION A. Procedural aspect of Article 3 1. The parties ’ submissions (a) The Government (b) The applicant 2. The third-party interveners (a) The UN Special Rapporteur (b) APADOR-CH (c) Joint submissions by Amnesty International (AI) and the International Commission of Jurists (ICJ) on “effective investigation” (d) Media Groups 3. The Court ’ s assessment (a) Admissibility (b) Merits (i) Applicable general principles deriving from the Court ’ s case-law (ii) Application of the above principles to the present case B. Substantive aspect of Article 3 1. The parties ’ submissions (a) The Government (b) The applicant 2. The Court ’ s assessment (a) Admissibility (b) Merits (i) Applicable general principles deriving from the Court ’ s case-law (ii) Application of the above principles to the present case (a) Treatment to which the applicant was subjected at the relevant time ( β ) Court ’ s conclusion as to Romania ’ s responsibility V. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION A. The parties ’ submissions 1. The Government 2. The applicant B. The Court ’ s assessment 1. Admissibility 2. Merits (a) Applicable general principles deriving from the Court ’ s case-law (b) Application of the above principles to the present case VI. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION A. The parties ’ submissions 1. The Government 2. The applicant B. The Court ’ s assessment 1. Admissibility 2. Merits VII. ALLEGED VIOLATION OF ARTICLE 13 IN CONJUNCTION WITH ARTICLES 3, 5 AND 8 OF THE CONVENTION A. The parties ’ submissions B. The Court ’ s assessment 1. Admissibility 2. Merits (a) Applicable general principles deriving from the Court ’ s case-law (b) Application of the above principles to the present case VIII. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION A. The parties ’ submissions 1. The Government 2. The applicant B. The Court ’ s assessment 1. Admissibility 2. Merits (a) Applicable general principles deriving from the Court ’ s case-law (b) Application of the above principles to the present case IX. ALLEGED VIOLATIONS OF ARTICLES 2 AND 3 OF THE CONVENTION TAKEN TOGETHER WITH ARTICLE 1 OF PROTOCOL NO. 6 TO THE CONVENTION A. The parties ’ submissions 1. The Government 2. The applicant B. The Court ’ s assessment 1. Admissibility 2. Merits (a) Applicable general principles deriving from the Court ’ s case-law (b) Application of the above principles to the present case X. OTHER ALLEGED VIOLATIONS OF THE CONVENTION XI. APPLICATION OF ARTICLE 46 OF THE CONVENTION A. The parties ’ submissions B. The Court ’ s assessment XII. APPLICATION OF ARTICLE 41 OF THE CONVENTION A. Damage B. Costs and expenses C. Default interest ANNEX I : List of abbreviations used in the Court ’ s judgment ANNEX II : List of references to the Court ’ s case-law In the case of Al Nashiri v. Romania, The European Court of Human Rights ( Former First Section ), sitting as a Chamber composed of: Linos-Alexandre Sicilianos, President, Kristina Pardalos, Robert Spano, Aleš Pejchal, Mirjana Lazarova Trajkovska, Paul Mahoney, judges, Florin Streteanu, ad hoc judge, and Abel Campos, Section Registrar, Having deliberated in private on 29 June 2016 and 11 April 201 8, Delivers the following judgment, which was adopted on the latter date: PROCEDURE 1. The case originated in an application (no. 33234/12) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ( “ the Convention ” ) by a Saudi Arabian national of Yemeni descent, Mr Abd Al Rahim Husseyn Muhammad Al Nashiri ( “ the applicant ” ), on 1 June 2012. 2. The applicant was represented by Mr J.A. Goldston, attorney, member of the New York Bar and Executive Director of the Open Society Justice Initiative ( “ the OSJI ” ), Mr R. Skilbeck, barrister, member of the England and Wales Bar and Litigation Director of the OSJI, Ms A. Singh, attorney, member of the New York Bar and Senior Legal Officer at the OSJI, Ms N. Hollander, attorney, member of the New Mexico Bar, and also by Ms D.O. Hatneanu, a lawyer practising in Bucharest. The Romanian Government ( “ the Government ” ) were represented by their Agent, Ms C. Brumar, of the Ministry of Foreign Affairs. 3. The applicant alleged violations of various provisions of the Convention, in particular: (i) Articles 3, 5 and 8 in that Romania had enabled the Central Intelligence Agency of the United States ( “ the CIA ” ) to detain him on its territory at a secret detention facility, thereby allowing the CIA to subject him to treatment that had amounted to torture, incommunicado detention and deprivation of any access to, or contact with, his family; (ii) Articles 2 and 3 of the Convention, Article 1 of Protocol No. 6 to the Convention and also Articles 5 and 6 of the Convention in that Romania had enabled the CIA to transfer him from its territory to other CIA-run detention facilities elsewhere, despite a real risk of his being subjected to further torture, ill-treatment, incommunicado detention, a flagrantly unfair trial and the imposition of the death penalty; (iii) Article 3 alone and in conjunction with Article 13 and also Articles 5 and 8 of the Convention in that Romania had failed to conduct an effective and thorough investigation into his allegations of serious violations of his rights protected by the Convention during his secret detention on Romanian territory. 4. The application was allocated to the Third Section of the Court (Rule 52 § 1 of the Rules of Court) 5. On 4 September 2012 the President of the Third Section gave priority to the application, in accordance with Rule 41. 6. On 18 September 2012 the Chamber that had been constituted to consider the case (Rule 26 § 1) gave notice of the application to the Government, in accordance with Rule 54 § 2 (b). 7. The Government and the applicant each filed written observations on the admissibility and merits of the case. In addition, third-party comments were received from Amnesty International, ( hereinafter also referred to as “ AI ” ) and the International Commission of Jurists ( hereinafter also referred to as “ ICJ”), the Association for the Defence of Human Rights in Romania – the Helsinki Committee ( “ APADOR-CH ” ), the twelve media organisations ( “ Media Groups ” ), represented by Howard Kennedy Fsi LLP, and the United Nations (UN) Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism ( “ the UN Special Rapporteur ” ). 8. On 26 May 2015 the President of the Section decided to invite the parties to submit further observations on certain factual developments. They were also invited to make comments on the case in the light of the Court ’ s judgment in the case of Al Nashiri v. Poland (no. 28761/11, 24 July 2014). 9. Following the re-composition of the Court ’ s Sections, the application was assigned to the First Section of the Court, pursuant to Rule 52 § 2. 10. Iulia Motoc, the judge elected in respect of Romania, withdrew from sitting in the case (Rule 28). The President accordingly appointed Mr Ioan Florin Streteanu to sit as an ad hoc judge in her place (Article 26 § 4 of the Convention and Rule 29 § 1 ). 11. Subsequently, the Chamber of the First Section that had been constituted to consider the case, having consulted the parties, decided that a public hearing on the admissibility and merits of the case be held on 29 June 2016. The Chamber also decided, of its own motion, to hear evidence from experts (Rule A1 of the Annex to the Rules of Court). The date for a fact ‑ finding hearing was set for 28 June 2016. In this connection, the President of the Chamber directed that verbatim records of both hearings be made, pursuant to Rule 70 of the Rules of Court and Rule 8 of the Annex to the Rules of Court, and instructed the Registrar accordingly. 12. On 28 June 2016 the Chamber held a fact - finding hearing and heard evidence from experts, in accordance with Rule A1 §§ 1 and 5 of the Annex. In the course of the fact-finding hearing the parties were also invited to state their position on the confidentiality (Rule 33 § 2) of certain documents produced by the Romanian Government, in particular annexes to the Romanian Senate Report of 200 7 ( “ the 200 7 Romanian Senate Report ” – see also paragraphs 165-169 below) and material collected in the context of a criminal investigation carried out by the Romanian authorities (see paragraphs 171-190 below). The applicant was in favour of full disclosure, whereas the Government considered that the confidentiality of annexes nos. 1-11 to the 2007 Romanian Senate Report in the redacted versions supplied by them could be lifted and that transcripts of evidence given by witnesses during the investigation could be referred to in public, without using any element that would allow the witnesses to be identified. That included their names and surnames and their exact workplaces or institutions that they represented. As regards the material from the investigation file, the Government in addition produced an English summary of annexes with documents submitted by them. They did not object to the content of the summary being referred to in public, in particular in the parties ’ oral submissions at the public hearing. The Court acceded to the Government ’ s requests. 13. A public hearing took place in public in the Human Rights Building, Strasbourg, on 29 June 2016 (Rule 59 § 3). There appeared before the Court: (a) for the Government Mrs C. Brumar, Agent of the Government, Ministry of Foreign Affairs, Mrs A.-L. Rusu, Chargé d ’ affaires a.i., Deputy to the Permanent Representative of Romania to the Council of Europe, Counsel, Mrs M. Ludușan, judge seconded to the Agent of the Government before the European Court of Human Rights, Ministry of Foreign Affairs, Counsel, Mr V. H. D. Constantinescu, judge seconded to the Agent of the Government before the European Court of Human Rights, Ministry of Foreign Affairs, Counsel, Mr R. Bodnar, Bucharest Airports National Company, Counsel, Mr M. Simionis, Romanian Civil Aviation Authority, Counsel, Mr A. Ștefan, Romanian Air Traffic Services Administration, Counsel; (b) for the applicant Mr R. Skilbeck, Counsel, Ms A. Singh, Counsel, Ms D .-O. Hatneanu, Counsel, Ms N. Hollander, Adviser. The Court heard addresses by Ms Brumar, Ms Luduşan, Ms Singh and Ms Hatneanu. 14. The fact-finding hearing and the public hearing were presided over by Mirjana Lazarova Trajkovska, former President of the First Section of the Court. Following the end of her term of office and the elections of Section Presidents, Linos-Alexandre Sicilianos, the President of the First Section, became the President of the Chamber (Rules 8 § 1, 12 and 26 § 3). Judges Lazarova Trajkovska and Mahoney continued to deal with the case after the end of their terms of office (Rule 26 § 3). THE FACTS 15. The applicant was born in 1965 and is currently detained in the Internment Facility at the US Guantánamo Bay Naval Base in Cuba I. PRELIMINARY CONSIDERATIONS REGARDING THE ESTABLISHMENT OF THE FACTS 16. It is to be noted that in the present case involving, as the applicant ’ s previous application before the Court, complaints of secret detention and torture to which he was allegedly subjected during the extraordinary rendition operations by the United States ’ authorities (see paragraphs 22-70 and 78-97 below) the Court is deprived of the possibility of obtaining any form of direct account of the events complained of from the applicant (see Al Nashiri v. Poland, no. 28761/11, § 397, 24 July 2014; see also Husayn (Abu Zubaydah) v. Poland, no. 7511/13, § 397, 24 July 2014 ). As in Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland, the facts as adduced by the applicant were to a considerable extent a reconstruction of dates and other elements relevant to his rendition, detention and treatment in the US authorities ’ custody, based on various publicly available sources of information. The applicant ’ s version of the facts as stated in his initial application of 1 June 2012 evolved and partly changed during the proceedings before the Court (see paragraphs 115-116 below). The respondent Government contested the applicant ’ s version of the facts on all accounts, maintaining that there was no evidence demonstrating that they had occurred in Romania (see paragraphs 395-402 and 419-443 below). 17. Consequently, the facts of the case as set out below (see paragraphs 98-164 below) are based on the applicant ’ s account supplemented by various items of evidence in the Court ’ s possession. II. EVIDENCE BEFORE THE COURT 18. In order to establish the facts of the case the Court has relied on its findings in Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland (both cited above), documentary evidence supplied by the applicant and the Government, including witness testimony obtained in the criminal investigation (see paragraphs 298-325 below), observations of the parties, material available in the public domain (see paragraphs 212-245 below), an affidavit made by Mr Thomas Hammarberg, the former Commissioner for Human Rights of the Council of Europe, a dossier that he produced for the Romanian Prosecutor General and his written reply to questions put to him by the Court and the parties (see paragraphs 333 -35 3 below), an affidavit made by Senator Dick Marty (see paragraph 354 below) and testimony of experts who gave oral evidence before the Court at the fact-finding hearing held on 28 June 2016 (see paragraphs 359-393 below). In the course of that hearing the Court, with the participation of the parties, took evidence from the following persons : (1) Mr Giovanni Claudio Fava, in his capacity as the Rapporteur of the European Parliament ’ s Temporary Committee on the alleged use of European countries by the CIA for the transport and illegal detention of Prisoners ( “ the TDIP ” ), the relevant inquiry also being called “ the Fava Inquiry ” and so referred to hereinafter (see paragraphs 268-277 below). (2) Senator Dick Marty, in his capacity as Rapporteur of the Council of Europe ’ s Parliamentary Assembly ( “ PACE ” ) in the inquiry into the allegations of CIA secret detention facilities in the Council of Europe ’ s member States (hereinafter the “ Marty Inquiry ” – see paragraphs 24 9 -26 7 below). (3) Mr J.G.S., in his capacity as advisor to Senator Marty in the Marty Inquiry and advisor to Mr Hammarberg who had dealt with, among other things, compiling data on flights associated with the CIA extraordinary rendition (see paragraphs 249-267 and 334-342 below), as well as an expert who had submitted a report on the applicant ’ s case in El-Masri v. the former Yugoslav Republic of Macedonia (see El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 75, ECHR 2012 ) and who had given oral evidence before the Court in the cases of Al Nashiri v. Poland ( cited above, §§ 42, 311-318 and 324-331 ) and Husayn (Abu Zubaydah) v. Poland ( cited above, § § 42, 305-312 and 318-325 ) and also in connection with his investigative activities concerning the CIA extraordinary rendition operations in general. In the course of giving evidence to the Court, Senator Marty and Mr J.G.S also gave a PowerPoint presentation entitled “ Distillation of available documentary evidence, including flight data, in respect of Romania and the case of Al Nashiri ”. (4) Mr Crofton Black, in his capacity as an investigator at the Bureau of Investigative Journalism, an expert in the investigation by the European Parliament ’ s Committee on Civil Liberties, Justice and Home Affairs ’ ( “ LIBE Committee ” ) into the alleged transportation and illegal detention of prisoners in European countries by the CIA (see paragraphs 2 86-287 and 353-356 below) and also in connection with his involvement in research and various investigative tasks concerning the CIA extraordinary rendition operations in general, including tasks performed for the UK-based non ‑ governmental organisation Reprieve. 19. The relevant passages from the experts ’ testimony are reproduced below (see paragraphs 10 4, 107-108, 110, 119, 121, 12 4 -12 5 ,12 9-132 and 357-391 below). III. BACKGROUND TO THE CASE A. Terrorist attacks of which the applicant has been suspected 1. USS Cole bombing in 2000 20. On 12 October 2000 a suicide terrorist attack on the United States Navy guided-missile destroyer USS Cole took place in Aden, Yemen when the ship stopped in Aden harbour for refuelling. It was attacked by a small bomb-laden boat. The explosion opened a 40 foot hole in the warship, killing 17 American sailors and injuring 40 other personnel. The US authorities considered the applicant to have been one of the most senior figures in al-Qaeda and a suspect in this bombing. He has been suspected of masterminding and orchestrating the attack (see also paragraphs 14 2 -15 6 below). 2. MV Limburg bombing in 2002 21. On 6 October 2002 a French oil tanker MV Limburg, while it was in the Gulf of Aden some miles offshore, was rammed by a small explosives ‑ laden boat which detonated. The tanker caught fire and approximately 90,000 barrels (14,000 sq.m ) of oil leaked into the Gulf of Aden. One crew member was killed and twelve others injured. The style of the attack resembled the suicide USS Cole bombing described above. The US authorities have suspected the applicant of playing a role in the attack (see also paragraphs 142-156 below). B. The so-called “ High-Value Detainee Programme ” 22. On an unspecified date following 11 September 2001 the CIA established a programme in the Counterterrorist Center ( “ CTC ” ) to detain and interrogate terrorists at sites abroad. In further documents the US authorities referred to it as “ the CTC program ” but, subsequently, it was also called “ the High-Value Detainee Program ” ( “ the HVD Program ” ) or the “ Rendition Detention Interrogation Program ” ( “ the RDI Program ” ). In the Council of Europe ’ s documents it is also described as “ the CIA secret detention programme ” or “ the extraordinary rendition programme ” (see also paragraphs 250 -26 5 below). For the purposes of the present case, it is referred to as “ the HVD Programme ”. 23. A detailed description of the HVD Programme made on the basis of materials that were available to the Court in the case of Al Nashiri v. Poland on the date of adoption of the judgment (8 July 2014) can be found in paragraphs 47-71 of that judgment. Those materials included the classified CIA documents released in redacted versions in 2009 -2010 (see also paragraphs 36-58 below). 24. On 9 December 2014 the United States authorities released the Findings and Conclusions and, in a heavily redacted version, the Executive Summary of the US Senate Select Committee on Intelligence ’ s “ Study of the Central Intelligence Agency ’ s Detention and Interrogation Program ”. The full Committee Study – as stated therein “ the most comprehensive review ever conducted of the CIA Detention and Interrogation Program ”, which is more than 6,700 pages long, remains classified (see also paragraphs 23-25 above). The declassified Executive Summary (hereinafter “ the 2014 US Senate Committee Report ” ) comprises 499 pages (for further details concerning the US Senate ’ s review of the CIA ’ s activities involved in the HVD Programme see paragraphs 79-98 below). 25. The 2014 US Senate Committee Report disclosed new facts and provided a significant amount of new information, mostly based on the CIA classified documents, about the CIA extraordinary rendition and secret detention operations, their foreign partners or co-operators, as well as the plight of certain detainees, including the applicant in the present case. However, all names of the countries on whose territories the CIA carried out its extraordinary rendition and secret detention operations were redacted and all foreign detention facilities were colour code - named. The 2014 US Senate Committee Report explains that the CIA requested that the names of countries that hosted CIA detention sites, or with which the CIA negotiated hosting sites, as well as information directly or indirectly identifying those countries be redacted. The countries were accordingly listed by a single letter of the alphabet, a letter which was nevertheless blackened throughout the document. Furthermore, at the CIA ’ s request the original code names for CIA detention sites were replaced with new identifiers – the above-mentioned colour code-names. 26. The 2014 US Senate Committee Report refers to eight specifically colour code-named CIA detention sites located abroad : “ Detention Site Green ”, “ Detention Site Cobalt ”, “ Detention Site Black ”, “ Detention Site Blue ”, “ Detention Site Gray ”, “ Detention Site Violet ”, “ Detention Site Orange ” and “ Detention Site Brown ” (see also paragraph 15 9 below). 27. The description of the “ HVD Programme ” given below is based on the CIA declassified documents that were available to the Court in Al ‑ Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland, supplemented by the 2014 US Senate Committee Report. 1. The establishment of the HVD Programme (a) The US President ’ s memoranda (i) Memorandum of 17 September 2001 28. The 2014 US Senate Committee Report states that on 17 September 2001 President George W. Bush signed a covert action Memorandum of Notification ( “ the MON ” ) to authorise the Director of the CIA to “ undertake operations designed to capture and detain persons who pose a continuing, serious threat of violence or death to U.S. persons and interests or who are planning terrorist activities ”. Although the CIA had previously been provided with certain limited authority to detain specific, named individuals pending the issuance of formal criminal charges, the MON provided unprecedented authority, granting the CIA significant discretion in determining whom to detain, the factual basis for the detention, and the length of their detention. The MON made no reference to interrogations or interrogation techniques. 29. Before the issuance of the MON, on 14 September 2001, the Chief of operations of the CIA, based on an urgent request from the Chief of the Counterterrorism Center ( “ CTC ” ), had sent an email to CIA Stations seeking input on appropriate locations for potential CIA detention facilities. 30. A CIA internal memorandum, entitled “ Approval to Establish a Detention Facility for Terrorists ”, drawn up on an unspecified date in November 2001, explained that detention at a US military base outside of the USA was “ the best option ”. In the context of risks associated with the CIA maintaining a detention facility, it warned that “ as captured terrorists may be held days, months, or years, the likelihood of exposure will grow over time ”. It anticipated that “ in a foreign country, close cooperation with the host government will entail intensive negotiations ” and warned that “ any foreign country poses uncontrollable risks that could create incidents, vulnerability to the security of the facility, bilateral problems, and uncertainty over maintaining the facility ”. The memorandum recommended the establishment of a “ short-term facility in which the CIA ’ s role would be limited to oversight, funding and responsibility ”. It further stated that the CIA would “ contract out all other requirements to other US Government organizations, commercial companies and, as appropriate, foreign governments ”. (ii) Memorandum of 7 February 2002 31. On 7 February 2002 President Bush issued a memorandum stating that neither al-Qaeda nor Taliban detainees qualified as prisoners of war under the Geneva Conventions and that Common Article 3 of the Geneva Conventions (see paragraphs 204-209 below), requiring humane treatment of individuals in a conflict, did not apply to them. The text of the order read, in so far as relevant, as follows: “ ... 2. Pursuant to my authority as commander in chief and chief executive of the United States, and relying on the opinion of the Department of Justice dated January 22, 2002, and on the legal opinion rendered by the attorney general in his letter of February 1, 2002, I hereby determine as follows: a. I accept the legal conclusion of the Department of Justice and determine that none of the provisions of Geneva apply to our conflict with al-Qaida in Afghanistan or elsewhere throughout the world because, among other reasons, al-Qaida is not a High Contracting Party to Geneva. ... c. I also accept the legal conclusion of the Department of Justice and determine that common Article 3 of Geneva does not apply to either al-Qaida or Taliban detainees, because, among other reasons, the relevant conflicts are international in scope and common Article 3 applies only to armed conflict not of an international character. d. Based on the facts supplied by the Department of Defense and the recommendation of the Department of Justice, I determine that the Taliban detainees are unlawful combatants and, therefore, do not qualify as prisoners of war under Article 4 of Geneva. I note that, because Geneva does not apply to our conflict with al-Qaida, al-Qaida detainees also do not qualify as prisoners of war. 3. Of course, our values as a nation, values that we share with many nations in the world, call for us to treat detainees humanely, including those who are not legally entitled to such treatment. Our nation has been and will continue to be a strong supporter of Geneva and its principles. As a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva. ... 6. I hereby direct the secretary of state to communicate my determinations in an appropriate manner to our allies, and other countries and international organizations cooperating in the war against terrorism of global reach. ” 32. On the same day, at the press conference, the White House Press Secretary announced the President ’ s decision. The President ’ s memorandum was subsequently widely commented in the US and international media. (b) Abu Zubaydah ’ s capture and transfer to a CIA covert detention facility in March 2002 33. On 27 March 2002 the Pakistani authorities working with the CIA captured Abu Zubaydah, the first so-called “ high-value detainee ” ( “ HVD ” ) in Faisalabad, Pakistan. Abu Zubaydah ’ s capture accelerated the development of the HVD Programme (see Husayn (Abu Zubaydah) v. Poland, cited above, §§ 82-84). 34. According to the 2014 US Senate Committee Report, in late March 2002, anticipating its eventual custody of Abu Zubaydah, the CIA began considering options for his transfer to CIA custody and detention under the MON. The CIA rejected the option of US military custody, mostly relying on the lack of security and the fact that in such a case Abu Zubaydah would have to be declared to the International Committee of the Red Cross ( “ the ICRC ” ). 35. On 29 March 2002 President Bush approved moving forward with the plan to transfer Abu Zubaydah to a covert detention facility – Detention Site Green – in a country whose name was blackened in the 2014 US Senate Committee Report. The report further stated : “ Shortly thereafter, Abu Zubaydah was rendered from Pakistan to Country [name REDACTED ] where he was held at the first CIA detention site, referred to in this summary as ‘ DETENTION SITE GREEN ’. ” ( c ) Setting up the CIA programme “ to detain and interrogate terrorists at sites abroad ” 36. On 24 August 2009 the US authorities released a report prepared by John Helgerson, the CIA Inspector General, in 2004 ( “ the 2004 CIA Report ” ). The document, dated 7 May 2004 and entitled “ Special Review Counterterrorism Detention and Interrogation Activities September 2001 ‑ October 2003 ”, with appendices A-F, had previously been classified as “ top secret ”. It was considerably redacted; overall, more than one-third of the 109-page document was blackened out. 37. The report, which covers the period from September 2001 to mid-October 2003, begins with a statement that in November 2002 the CIA Deputy Director for Operations ( “ the DDO ” ) informed the Office of Inspector General ( “ OIG ” ) that the Agency had established a programme in the CTC “ to detain and interrogate terrorists at sites abroad ”. 38. The background of the HVD Programme was explained in paragraphs 4-5 as follows: “ 4. [REDACTED] the Agency began to detain and interrogate directly a number of suspected terrorists. The capture and initial Agency interrogation of the first high ‑ value detainee, Abu Zubaydah, in March 2002, presented the Agency with a significant dilemma. The Agency was under pressure to do everything possible to prevent additional terrorist attacks. Senior Agency officials believed Abu Zubaydah was withholding information that could not be obtained through then-authorized interrogation techniques. Agency officials believed that a more robust approach was necessary to elicit threat information from Abu Zubaydah and possibly from other senior Al ’ Qaeda high value detainees. 5. [REDACTED] The conduct of detention and interrogation activities presented new challenges for CIA. These included determining where detention and interrogation facilities could be securely located and operated, and identifying and preparing qualified personnel to manage and carry out detention and interrogation activities. With the knowledge that Al ’ Qaeda personnel had been trained in the use of resistance techniques, another challenge was to identify interrogation techniques that Agency personnel could lawfully use to overcome the resistance. In this context, CTC, with the assistance of the Office of Technical Service (OTS), proposed certain more coercive physical techniques to use on Abu Zubaydah. All of these considerations took place against the backdrop of pre-September 11, 2001 CIA avoidance of interrogations and repeated US policy statements condemning torture and advocating the humane treatment of political prisoners and detainees in the international community. ” 39. As further explained in the 2004 CIA Report, “ terrorist targets ” and detainees referred to therein were generally categorised as “ high value ” or “ medium value ”. This distinction was based on the quality of intelligence that they were believed likely to be able to provide about current terrorist threats against the United States. “ Medium- value detainees ” were individuals believed to have lesser direct knowledge of terrorist threats but to have information of intelligence value. “ High-value detainees ” (also called “ HVDs ” ) were given the highest priority for capture, detention and interrogation. In some CIA documents they are also referred to as “ high ‑ value targets ” ( “ HVTs ” ). The applicant fell into this category of detainees. 2. Enhanced Interrogation Techniques (a) Description of legally sanctioned standard and enhanced interrogation techniques 40. According to the 2004 CIA Report, in August 2002 the US Department of Justice had provided the CIA with a legal opinion determining that 10 specific “ Enhanced Interrogation Techniques ” ( “ EITs ” ), to be applied to suspected terrorists, would not violate the prohibition of torture. 41. The EITs are described in paragraph 36 of the 2004 CIA Report as follows: “ [1.] The attention grasp consists of grasping the detainee with both hands, with one hand on each side of the collar opening, in a controlled and quick motion. In the same motion as the grasp, the detainee is drawn toward the interrogator. [2.] During the walling technique, the detainee is pulled forward and then quickly and firmly pushed into a flexible false wall so that his shoulder blades hit the wall. His head and neck are supported with a rolled towel to prevent whiplash. [3.] The facial hold is used to hold the detainee ’ s head immobile. The interrogator places an open palm on either side of the detainee ’ s face and the interrogator ’ s fingertips are kept well away from the detainee ’ s eyes. [4.] With the facial or insult slap, the fingers are slightly spread apart. The interrogator ’ s hand makes contact with the area between the tip of the detainee ’ s chin and the bottom of the corresponding earlobe. [5.] In cramped confinement, the detainee is placed in a confined space, typically a small or large box, which is usually dark. Confinement in the smaller space lasts no more than two hours and in the larger space it can last up to 18 hours. [6.] Insects placed in a confinement box involve placing a harmless insect in the box with the detainee. [7.] During wall standing, the detainee may stand about 4 to 5 feet from a wall with his feet spread approximately to his shoulder width. His arms are stretched out in front of him and his fingers rest on the wall to support all of his body weight. The detainee is not allowed to reposition his hands or feet. [8.] The application of stress positions may include having the detainee sit on the floor with his legs extended straight out in front of him with his arms raised above his head or kneeling on the floor while leaning back at a 45 degree angle. [9.] Sleep deprivation will not exceed 11 days at a time. [10.] The application of the waterboard technique involves binding the detainee to a bench with his feet elevated above his head. The detainee ’ s head is immobilized and an interrogator places a cloth over the detainee ’ s mouth and nose while pouring water onto the cloth in a controlled manner. Airflow is restricted for 20 to 40 seconds and the technique produces the sensation of drowning and suffocation. ” 42. Appendix F to the 2004 CIA Report (Draft OMS Guidelines on Medical and Psychological Support to Detainee Interrogations of 4 September 2003) refers to “ legally sanctioned interrogation techniques ”. It states, among other things, that “ captured terrorists turned over to the CIA for interrogation may be subjected to a wide range of legally sanctioned techniques. ... These are designed to psychologically ‘ dislocate ’ the detainee, maximize his feeling of vulnerability and helplessness, and reduce or eliminate his will to resist ... efforts to obtain critical intelligence ”. The techniques included, in ascending degree of intensity: ( 1) Standard measures (that is, without physical or substantial psychological pressure): shaving; stripping; diapering (generally for periods not greater than 72 hours); hooding; isolation; white noise or loud music (at a decibel level that will not damage hearing); continuous light or darkness; uncomfortably cool environment; restricted diet, including reduced caloric intake (sufficient to maintain general health); shackling in upright, sitting, or horizontal position; water dousing; sleep deprivation (up to 72 hours). ( 2) Enhanced measures (with physical or psychological pressure beyond the above): attention grasp; facial hold; insult (facial) slap; abdominal slap; prolonged diapering; sleep deprivation (over 72 hours); stress positions: on knees body slanted forward or backward or leaning with forehead on wall; walling; cramped confinement (confinement boxes) and waterboarding. 43. Appendix C to the 2004 CIA Report (Memorandum for John Rizzo Acting General Counsel of the Central Intelligence Agency of 1 August 2002) was prepared by Jay S. Baybee, Assistant Attorney General in connection with the application of the EITs to Abu Zubaydah, the first high-ranking al-Qaeda prisoner who was to be subjected to those interrogation methods. This document, a classified analysis of specific interrogation techniques proposed for use in the interrogation of Abu Zubaydah, was declassified in 2009. It concludes that, given that “ there is no specific intent to inflict severe mental pain or suffering ... ” the application “ of these methods separately or a course of conduct ” would not violate the prohibition of torture as defined in section 2340 of title 18 of the United States Code. 44. The US Department of Justice Office of Professional Responsibility Report: “ Investigation into the Office of Legal Counsel ’ s Memoranda Concerning Issues Relating to the Central Agency ’ s Use of ‘ Enhanced Interrogation Techniques ’ on Suspected Terrorists ” ( “ the 2009 DOJ Report ” ) was released by the US authorities in a considerably redacted form in 2010. The report is 260 pages long but all the parts that seem to refer to locations of CIA “ black sites ” or names of interrogators are redacted. It states, among other things, as follows: “ The issue how to approach interrogations reportedly came to a head after the capture of a senior al ’ Qaeda leader, Abu Zubaydah, during a raid in Faisalabad, Pakistan, in late March 2002. Abu Zubaydah was transported to a ‘ black site ’, a secret CIA prison facility [REDACTED] where he was treated for gunshot wounds he suffered during his capture. ... ” 45. According to the 2009 DOJ Report, the CIA psychologists eventually proposed twelve EITs to be used in the interrogation of Mr Abu Zubaydah: attention grasp, walling, facial hold, facial or insult slap, cramped confinement, insects, wall-standing, stress positions, sleep deprivation, use of diapers, waterboarding – the name of the twelfth EIT was redacted. ( b ) Expanding the use of the EITs beyond Abu Zubaydah ’ s interrogations 46. The 2004 CIA Report states that, subsequently, the CIA Office of General Counsel ( “ OGC ” ) continued to consult with the US Department of Justice in order to expand the use of EITs beyond the interrogation of Abu Zubaydah. According to the report, “ this resulted in the production of an undated and unsigned document entitled ‘ Legal principles Applicable to CIA Detention and Interrogation of Captured Al ’ Qaeda Personnel ’ ”. Certain parts of that document are rendered in the 2004 CIA Report. In particular, the report cites the following passages: “ ... the [Torture] Convention permits the use of [cruel, inhuman, or degrading treatment] in exigent circumstances, such as a national emergency or war. ...the interrogation of Al ’ Qaeda members does not violate the Fifth and Fourteenth Amendments because those provisions do not apply extraterritorially, nor does it violate the Eighth Amendment because it only applies to persons upon whom criminal sanctions have been imposed. ... The use of the following techniques and of comparable, approved techniques does not violate any Federal statute or other law, where the CIA interrogators do not specifically intend to cause the detainee to undergo severe physical or mental pain or suffering (i.e., they act with the good faith belief that their conduct will not cause such pain or suffering): isolation, reduced caloric intake (so long as the amount is calculated to maintain the general health of the detainees), deprivation of reading material, loud music or white noise (at a decibel level calculated to avoid damage to the detainees ’ hearing), the attention grasp, walling, the facial hold, the facial slap (insult slap), the abdominal slap, cramped confinement, wall standing, stress positions, sleep deprivation, the use of diapers, the use of harmless insects, and the water board. ” The report, in paragraph 44, states that according to OGC this analysis embodied the US Department of Justice ’ s agreement that the reasoning of the classified OLC opinion of 1 August 2002 extended beyond the interrogation of Abu Zubaydah and the conditions specified in that opinion. 47. The application of the EITs to other terrorist suspects in CIA custody, including Mr Al Nashiri, began in November 2002. 3. Standard procedures and treatment of “ high -value detainees ” in CIA custody (combined use of interrogation techniques) 48. On 30 December 2004 the CIA prepared a background paper on the CIA ’ s combined interrogation techniques ( “ the 2004 CIA Background Paper ” ), addressed to D. Levin, the US Acting Assistant Attorney General. The document, originally classified as “ top secret ” was released on 24 August 2009 in a heavily redacted version. It explains standard authorised procedures and treatment to which high-value detainees – the HVDs – in CIA custody were routinely subjected from their capture through their rendition and reception at a CIA “ black site ” to their interrogation. It “ focuses on the topic of combined use of interrogation techniques, [the purpose of which] is to persuade High-Value Detainees to provide threat information and terrorist intelligence in a timely manner ... Effective interrogation is based on the concept of using both physical and psychological pressures in a comprehensive, systematic and cumulative manner to influence HVD behaviour, to overcome a detainee ’ s resistance posture. The goal of interrogation is to create a state of learned helplessness and dependence ... The interrogation process could be broken into three separate phases: Initial conditions, transition to interrogation and interrogation ” (see also El-Masri, cited above, § 124 ). 49. The first section of the 2004 CIA Background Paper, entitled “ Initial Capture ”, was devoted to the process of capture, rendition and reception at the “ black site ”. It states that “ regardless of their previous environment and experiences, once a HVD is turned over to CIA a predictable set of events occur ”. The capture is designated to “ contribute to the physical and psychological condition of the HVD prior to the start of interrogation ”. 50. The said “ predictable set of events ” following the capture started with the rendition, which was described as follows: “ a. The HVD is flown to a Black Site. A medical examination is conducted prior to the flight. During the flight, the detainee is securely shackled and is deprived of sight and sound through the use of blindfolds, earmuffs, and hoods. [REDACTED] There is no interaction with the HVD during this rendition movement except for periodic, discreet assessments by the on-board medical officer b. Upon arrival at the destination airfield, the HVD is moved to the Black Site under the same conditions and using appropriate security procedures. ” 51. The description of the next “ event ” – the reception at the “ black site ” – reads as follows: “ The HVD is subjected to administrative procedures and medical assessment upon arrival at the Black Site. [REDACTED] the HVD finds himself in the complete control of Americans; [REDACTED] the procedures he is subjected to are precise, quiet, and almost clinical; and no one is mistreating him. While each HVD is different, the rendition and reception process generally creates significant apprehension in the HVD because of the enormity and suddenness of the change in environment, the uncertainty about what will happen next, and the potential dread an HVD might have of US custody. Reception procedures include: a. The HVD ’ s head and face are shaved. b. A series of photographs are taken of the HVD while nude to document the physical condition of the HVD upon arrival. c. A Medical Officer interviews the HVD and a medical evaluation is conducted to assess the physical condition of the HVD. The medical officer also determines if there are any contra indications to the use of interrogation techniques. d. A psychologist interviews the HVD to assess his mental state. The psychologist also determines if there are any contra indications to the use of interrogation techniques. ” 52. The second section, entitled “ Transitioning to Interrogation - The Initial Interview ”, deals with the stage before the application of EITs. It reads: “ Interrogators use the Initial Interview to assess the initial resistance posture of the HVD and to determine – in a relatively benign environment – if the HVD intends to willingly participate with CIA interrogators. The standard on participation is set very high during the Initial Interview. The HVD would have to willingly provide information on actionable threats and location information on High-Value Targets at large not lower level information for interrogators to continue with the neutral approach. [REDACTED] to HQS. Once approved, the interrogation process begins provided the required medical and psychological assessments contain no contra indications to interrogation. ” 53. The third section, “ Interrogation ”, which is largely redacted, describes the standard combined application of interrogation techniques defined as ( 1) “ existing detention conditions ”, ( 2) “ conditioning techniques ”, ( 3) “ corrective techniques ” and ( 4) “ coercive techniques ”. ( 1) The part dealing with the “ existing detention conditions ” reads: “ Detention conditions are not interrogation techniques, but they have an impact on the detainee undergoing interrogation. Specifically, the HVD will be exposed to white noise/loud sounds (not to exceed 79 decibels) and constant light during portions of the interrogation process. These conditions provide additional operational security: white noise/loud sounds mask conversations of staff members and deny the HVD any auditory clues about his surroundings and deter and disrupt the HVD ’ s potential efforts to communicate with other detainees. Constant light provides an improved environment for Black Site security, medical, psychological, and interrogator staff to monitor the HVD. ” ( 2) The “ conditioning techniques ” are related as follows: “ The HVD is typically reduced to a baseline, dependent state using the three interrogation techniques discussed below in combination. Establishing this baseline state is important to demonstrate to the HVD that he has no control over basic human needs. The baseline state also creates in the detainee a mindset in which he learns to perceive and value his personal welfare, comfort, and immediate needs more than the information he is protecting. The use of these conditioning techniques do not generally bring immediate results; rather, it is the cumulative effect of these techniques, used over time and in combination with other interrogation techniques and intelligence exploitation methods, which achieve interrogation objectives. These conditioning techniques require little to no physical interaction between the detainee and the interrogator. The specific conditioning interrogation techniques are a. Nudity. The HVD ’ s clothes are taken and he remains nude until the interrogators provide clothes to him. b. Sleep Deprivation. The HVD is placed in the vertical shackling position to begin sleep deprivation. Other shackling procedures may be used during interrogations. The detainee is diapered for sanitary purposes; although the diaper is not used at all times. c. Dietary manipulation. The HVD is fed Ensure Plus or other food at regular intervals. The HVD receives a target of 1500 calories per day per OMS guidelines. ” ( 3) The “ corrective techniques ”, which were applied in combination with the “ conditioning techniques ”, are defined as those requiring “ physical interaction between the interrogator and detainee ” and “ used principally to correct, startle, or to achieve another enabling objective with the detainee ”. They are described as follows: “ These techniques – the insult slap, abdominal slap, facial hold, and attention grasp – are not used simultaneously but are often used interchangeably during an individual interrogation session. These techniques generally are used while the detainee is subjected to the conditioning techniques outlined above (nudity, sleep deprivation, and dietary manipulation). Examples of application include: a. The insult slap often is the first physical technique used with an HVD once an interrogation begins. As noted, the HVD may already be nude, in sleep deprivation, and subject to dietary manipulation, even though the detainee will likely feel little effect from these techniques early in the interrogation. The insult slap is used sparingly but periodically throughout the interrogation process when the interrogator needs to immediately correct the detainee or provide a consequence to a detainee ’ s response or non-response. The interrogator will continually assess the effectiveness of the insult slap and continue to employ it so long as it has the desired effect on the detainee. Because of the physical dynamics of the various techniques, the insult slap can be used in combination with water dousing or kneeling stress positions. Other combinations are possible but may not be practical. b. Abdominal Slap. The abdominal slap is similar to the insult slap in application and desired result. It provides the variation necessary to keep a high level of unpredictability in the interrogation process. The abdominal slap will be used sparingly and periodically throughout the interrogation process when the interrogator wants to immediately correct the detainee [REDACTED], and the interrogator will continually assess its effectiveness. Because of the physical dynamics of the various techniques, the abdominal slap can be used in combination with water dousing, stress positions, and wall standing. Other combinations are possible but may not be practical, c. Facial Hold. The facial hold is a corrective technique and is used sparingly throughout interrogation. The facial hold is not painful and is used to correct the detainee in a way that demonstrates the interrogator ’ s control over the HVD [REDACTED]. Because of the physical, dynamics of the various techniques, the facial hold can be used in combination with water dousing, stress positions, and wall standing. Other combinations are possible but may not be practical. d. Attention Grasp .It may be used several times in the same interrogation. This technique is usually applied [REDACTED] grasp the HVD and pull him into close proximity of the interrogator (face to face). Because of the physical dynamics of the various techniques, the attention grasp can be used in combination with water dousing or kneeling stress positions. Other combinations are possible but may not be practical. ” ( 4) The “ coercive techniques ”, defined as those placing a detainee “ in more physical and psychological stress and therefore considered more effective tools in persuading a resistant HVD to participate with CIA interrogators ”, are described as follows: “ These techniques – walling, water dousing, stress positions, wall standing, and cramped confinement – are typically not used in combination, although some combined use is possible. For example, an HVD in stress positions or wall standing can be water doused at the same time. Other combinations of these techniques may be used while the detainee is being subjected to the conditioning techniques discussed above (nudity, sleep deprivation, and dietary manipulation). Examples of coercive techniques include: a. Walling. Walling is one of the most effective interrogation techniques because it wears down the HVD physically, heightens uncertainty in the detainee about what the interrogator may do to him, and creates a sense of dread when the HVD knows he is about to be walled again. [REDACTED] interrogator [REDACTED]. An HVD may be walled one time (one impact with the wall) to make a point or twenty to thirty times consecutively when the interrogator requires a more significant response to a question. During an interrogation session that is designed to be intense, an HVD will be walled multiple times in the session. Because of the physical dynamics of walling, it is impractical to use it simultaneously with other corrective or coercive techniques. b. Water Dousing. The frequency and duration of water dousing applications are based on water temperature and other safety considerations as established by OMS guidelines. It is an effective interrogation technique and may be used frequently within those guidelines. The physical dynamics of water dousing are such that it can be used in combination with other corrective and coercive techniques. As noted above, an HVD in stress positions or wall standing can be water doused. Likewise, it is possible to use the insult slap or abdominal slap with an HVD during water dousing. c. Stress Positions. The frequency and duration of use of the stress positions are based on the interrogator ’ s assessment of their continued effectiveness during interrogation. These techniques are usually self-limiting in that temporary muscle fatigue usually leads to the HVD being unable to maintain the stress position after a period of time. Stress positions requiring the HVD to be in contact with the wall can be used in combination with water dousing and abdominal slap. Stress positions requiring the HVD to kneel can be used in combination with water dousing, insult slap, abdominal slap, facial hold, and attention grasp. d. Wall Standing. The frequency and duration of wall standing are based on the interrogator ’ s assessment of its continued effectiveness during interrogation. Wall standing is usually self-limiting in that temporary muscle fatigue usually leads to the HVD being unable to maintain the position after a period of time. Because of the physical dynamics of the various techniques, wall standing can be used in combination with water dousing and abdominal slap. While other combinations are possible, they may not be practical. e. Cramped Confinement. Current OMS guidance on the duration of cramped confinement limits confinement in the large box to no more than 8 hours at a time for no more than 18 hours a day, and confinement in the small box to 2 hours. [REDACTED] Because of the unique aspects of cramped confinement, it cannot be used in combination with other corrective or coercive techniques. ” 54. The subsequent section of the 2004 CIA Background Paper, entitled “ Interrogation – A Day-to-Day Look ” sets out a – considerably redacted – “ prototypical interrogation ” practised routinely at the CIA “ black site ”, “ with an emphasis on the application of interrogation techniques, in combination and separately ”. A detailed description of such “ prototypical interrogation ” can be found in Al Nashiri v. Poland (see Al Nashiri v. Poland, cited above, § 68). 55. From the end of January 2003 to September 2006 the rules for CIA interrogations were set out in the Guidelines on Interrogations Conducted Pursuant to the Presidential Memorandum of Notification of 17 September 2001 ( “ the DCI Interrogation Guidelines ” ), signed by the CIA Director, George Tenet, on 28 January 2003. The 2014 US Senate Committee Report states that, although the above guidelines were prepared as a reaction to the death of one of the HVDs, Gul Rahman, at Detention Site Cobalt and the use of unauthorised interrogation techniques on Mr Al Nashiri at Detention Site Blue (see Al Nashiri v. Poland, cited above, §§ 99-100 ), they did not reference all interrogation practices that had been employed at CIA detention sites. For instance, they did not address whether techniques such as the “ rough take down ”, the use of cold water showers and prolonged light deprivation were prohibited. According to the 2014 US Senate Committee Report, the CIA officers had a “ significant amount of discretion ” in the application of the interrogation measures. The relevant part of the 2014 US Senate Committee Report reads: “ ... [B] y requiring advance approval of ‘ standard techniques ’ whenever feasible, the guidelines allowed CIA officers a significant amount of discretion to determine who could be subjected to the CIA ’ s ‘ standard ’ interrogation techniques, when those techniques could be applied, and when it was not ‘ feasible ’ to request advance approval from CIA Headquarters. Thus, consistent with the interrogation guidelines, throughout much of 2003, CIA officers (including personnel not trained in interrogation) could, at their discretion, strip a detainee naked, shackle him in the standing position for up to 72 hours, and douse the detainee repeatedly with cold water without approval from CIA Headquarters if those officers judged CIA Headquarters approval was not ‘ feasible ’. In practice, CIA personnel routinely applied these types of interrogation techniques without obtaining prior approval. ” 4. Conditions of detention at CIA “ black sites ” 56. From the end of January 2003 to September 2006 the conditions of detention at CIA detention facilities abroad were governed by the Guidelines on Confinement Conditions for CIA Detainees ( “ the DCI Confinement Guidelines ” ), signed by George Tenet on 28 January 2003. This document, together with the DCI Interrogation Guidelines (see paragraph 55 above), set out the first formal interrogation and confinement guidelines for the HVD Programme. The 2014 US Senate Committee Report relates that, in contrast to earlier proposals of late 2001, when the CIA expected that any detention facility would have to meet US prison standards, the guidelines set forth minimal standards and required only that the facility be sufficient to meet “ basic health needs ”. According to the report, that meant that even a facility comparable to the “ Detention Site Cobalt ” in which detainees were kept shackled in complete darkness and isolation, with a bucket for human waste, and without heat during the winter months, met the standard. 57. According to the guidelines, at least the following “ six standard conditions of confinement ” were in use during that period : (i) blindfolds or hooding designed to disorient the detainee and keep him from learning his location or the layout of the detention facility; (ii) removal of hair upon arrival at the detention facility such that the head and facial hair of each detainee is shaved with an electric shaver, while the detainee is shackled to a chair; (iii) incommunicado, solitary confinement; (iv) continuous noise up to 79dB, played at all times, and maintained in the range of 56-58 dB in detainees ’ cells and 68-72 dB in the walkways; (v) continuous light such that each cell was lit by two 17-watt T-8 fluorescent tube light bulbs, which illuminated the cell to about the same brightness as an office; (vi) use of leg shackles in all aspects of detainee management and movement. 58. The Memorandum for John A. Rizzo, Acting General Counsel at the CIA, entitled “ Application of the Detainee Treatment Act to Conditions of Confinement at Central Intelligence Agency Facilities ”, dated 31 August 2006, which was released on 24 August 2009 in a heavily redacted form, referred to conditions in which high-value detainees were held as follows: “ ... the CIA detainees are in constantly illuminated cells, substantially cut off from human contact, and under 24-hour-a-day surveillance. We also recognize that many of the detainees have been in the program for several years and thus that we cannot evaluate these conditions as if they have occurred only for a passing moment .... Nevertheless, we recognize that the isolation experienced by the CIA detainees may impose a psychological toll. In some cases, solitary confinement may continue for years and may alter the detainee ’ s ability to interact with others. ... ” 5. The scale of the HVD Programme 59. According to the 2014 US Senate Committee Report, the CIA held detainees from 2002 to 2008. Early 2003 was the most active period of the programme. Of the 119 detainees identified by the Senate Intelligence Committee as held by the CIA, fifty-three were brought into custody in 2003. Of thirty-nine detainees who, as found by the Committee, were subjected to the EITs, seventeen were subjected to such methods of interrogation between January 2003 and August 2003. During that time the EITs were primarily used at the Detention Site Cobalt and the Detention Site Blue. The report states that by the end of 2004 the overwhelming majority of CIA detainees – 113 of the 119 identified in the report – had already entered CIA custody. Most of the detainees remaining in custody were no longer undergoing active interrogations; rather, they were infrequently questioned and awaiting a “ final disposition ”. The CIA took custody of only six new detainees between 2005 and January 2009: four detainees in 2005, one in 2006, and one in 2007. 6. Closure of the HVD Programme 60. On 6 September 2006 President Bush delivered a speech announcing the closure of the HVD Programme. According to information disseminated publicly by the US authorities, no persons were held by the CIA as of October 2006 and the detainees concerned were transferred to the custody of the US military authorities in the US Naval Base in Guantánamo Bay. 61. In January 2009 President Obama signed Executive Order 13491 that prohibited the CIA from holding detainees other than on a “ short-term, transitory basis ” and limited interrogation techniques to those included in the Army Field Manual. C. The United States Supreme Court ’ s judgment in Rasul v. Bush 62. On 28 June 2004 the US Supreme Court gave judgment in Rasul v. Bush, 542 U.S. 466 (2004). It held that foreign nationals detained in the Guantánamo Bay detention camp could petition federal courts for writs of habeas corpus to review the legality of their detention. The relevant part of the syllabus reads as follows: “ United States courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at Guantánamo Bay. (a) The District Court has jurisdiction to hear petitioners ’ habeas challenges under 28 U.S.C. § 2241, which authorizes district courts, within their respective jurisdictions, to entertain habeas applications by persons claiming to be held in custody in violation of the ... laws ... of the United States, §§ 2241(a), (c)(3). Such jurisdiction extends to aliens held in a territory over which the United States exercises plenary and exclusive jurisdiction, but not ultimate sovereignty. ... ” D. Role of Jeppesen Dataplan, Richmor Aviation and other air companies in the CIA rendition operations 63. According to various reports available in the public domain and materials collected during international inquiries concerning the CIA ’ s HDV Programme (see paragraphs 250-265, 268-277 and 355-358 below), the CIA used a network of at least twenty-six private planes for their rendition operations. The planes were leased through front companies. The CIA contracts remain classified but parts of the contracts between front companies (such as, for example, Richmor Aviation) and their contractors are publicly available 1. Jeppesen Dataplan Inc. 64. Jeppesen Dataplan. Inc. is a subsidiary of Boeing based in San Jose, California. According to the company ’ s website, it is an international flight operations service provider that coordinates everything from landing fees to hotel reservations for commercial and military clients. 65. In the light of reports on rendition flights (see paragraphs 2 60, 289 ‑ 293 and 31 8 below), a unit of the company Jeppesen International Trip Planning Service (JITPS) provided logistical support to the CIA for the renditions of persons suspected of terrorism. 66. In 2007 the American Civil Liberties Union ( “ the ACLU ” ) filed a federal lawsuit against Jeppesen Dataplan, Inc., on behalf of three extraordinary rendition victims with the District Court for the Northern District of California. Later, two other persons joined the lawsuit as plaintiffs. The suit charged that Jeppesen knowingly participated in these renditions by providing critical flight planning and logistical support services to aircraft and crews used by the CIA to forcibly disappear these five men to torture, detention and interrogation. In February 2008 the District Court dismissed the case on the basis of “ state secret privilege ”. In April 2009 the 9 th Circuit Court of Appeals reversed the first-instance decision and remitted the case. In September 2010, on the US Government ’ s appeal, an 11-judge panel of the 9 th Circuit Court of Appeals reversed the decision of April 2009. In May 2011 the US Supreme Court refused the ACLU ’ s request to hear the lawsuit. 2. Richmor Aviation 67. Richmor Aviation is an aircraft company based in Hudson, New York. 68. According to Reprieve, documents detailing Richmor Aviation ’ s involvement in CIA renditions missions were made public by it in 2011. These documents included litigation material concerning a dispute for a breach of contract between Richmor Aviation and Sportsflight, a contractor organising flights. They show that Richmor Aviation was involved in the rendition operations in particular through a Gulfstream jet under their management, N85VM, which was later redesignated as N227SV (see also paragraphs 116-121 below ). Other planes operated by Richmor Aviation were also involved in the programme. Richmor Aviation became a part of this programme as early as June 2002, when the US government ’ s initial prime contractor DynCorp entered into single entity charter contract with broker Capital Aviation to supply Richmor Aviation ’ s Gulfstream jet N85VM. Under that contract, Richmor Aviation was subcontracted to perform numerous missions. For instance, Hassan Mustafa Osama Nasr aka Abu Omar ’ s rendition flight from Germany to Egypt on 17 February 2003 was operated by Richmor Aviation on behalf of DynCorp ( see also Nasr and Ghali v. Italy, no. 44883/09, §§ 39, 112 and 231, 23 February 2016 ). It is also reported that the CIA, acting through Computer Sciences Corporation, arranged for Richmor Aviation jet N982RK to transfer Mr El ‑ Masri from a CIA “ black site ” in Afghanistan to Albania (see El ‑ Masri, cited above, § 46 ). 3. Other companies 69. The Fava Inquiry (see paragraph 1 8 above and paragraphs 26 8-277 below) examined, among other things, the use by the CIA of private companies and charter services to carry out the rendition operations. The relevant parts of working document no. 4 produced in the course of the inquiry read as follows: “ Within the context of the extraordinary renditions, the CIA had often used private companies and charter services for aircraft rentals. Through the civil aviation it is possible to reach places where the military aircraft would be seen suspiciously. Thanks to the civil aviation, the CIA avoids the duty to provide the information required by States concerning government or military flights. Most of these companies are the so-called shell companies: they only exist on papers (post offices boxes, for instance) or they have a sole employee (normally a lawyer). These shell companies appear the owners of some aircrafts which are systematically object of buy-and-sell operations. After each transaction, planes are re-registered in order to [lose ] their tracks. ... Sometimes shell companies used by CIA rely on other real companies endowed with premises and employees (so called: operating companies). These companies are entrusted to stand behind the shell companies; they provide the CIA aircrafts with all necessary logistics (pilots, catering, technical assistance). In some cases the operating companies are directly linked to the CIA. One example is Aero Contractor, a company described by the New York Times as the ‘ major domestic hub of the Central Intelligence Agency ’ s secret air service ’. The system is well described by the New York Times: ‘ An analysis of thousands of flight records, aircraft registrations and corporate documents, as well as interviews with former C.I.A. officers and pilots, show that the agency owns at least 26 planes, 10 of them purchased since 2001. The agency has concealed its ownership behind a web of seven shell corporations that appear to have no employees and no function apart from owning the aircraft. The planes, regularly supplemented by private charters, are operated by real companies controlled by or tied to the agency, including Aero Contractors and two Florida companies, Pegasus Technologies and Tepper Aviation. ’ Finally, in other cases, the CIA leases airplanes from normal charter agents, as it is the case for Richmor Aviation. Richmor Aviation is one of the oldest charter and flight management companies. The Gulfstream IV, N85VM belongs to Richmor Aviation (plane involved in the abduction of Abu Omar). Ultimately, in this inextricable net, there is also the possibility that single aircrafts change their registration numbers (as for the Gulfstream V, from Richmor Aviation, registered as N379P, then, N8068V and then N44982). There are indeed 51 airplanes alleged to be used in the extraordinary renditions, but, according the Federal Aviation Administration records, there would be 57 registration numbers. It comes out that some of them are registered more than once. Among the 51 airplanes alleged to be used by CIA: 26 planes are registered to shell companies and sometimes supported by operating companies. 10 are designed as ‘ CIA frequent flyers ’, they belong to Blackwater USA, an important CIA and US Army ‘ classified contractor ’. It provides staff, training and aviation logistic. In this case there is no intermediation of shell companies. The other 15 planes are from occasional rental from private companies working with CIA as well as with other customers. ” 70. The document listed the following operating companies involved in the rendition operations : Aero Contractors, Ltd; Tepper Aviation; Richmor Aviation; and subsidiaries of Blackwater USA. Aero Contractors was the operating company for the following shell companies: Steven Express Leasing Inc., Premier Executive Transport Service, Aviation Specialties Inc.; and Devon Holding and Leasing Inc.. E. Military Commissions 1. Military Order of 13 November 2001 71. On 13 November 2001 President Bush issued the Military Order of November 13, 2001 on Detention, Treatment, and Trial of Certain Non ‑ Citizens in the War Against Terrorism ( “ the 2001 Military Commission Order ” ). It was published in the Federal Register on 16 November 2001. The relevant parts of the order read as follows: “ Sec. 2. Definition and Policy. (a) The term ‘ individual subject to this order ’ shall mean any individual who is not a United States citizen with respect to whom I determine from time to time in writing that: (1) there is reason to believe that such individual, at the relevant times, (i) is or was a member of the organization known as al Qaeda; (ii) has engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefor, that have caused, threaten to cause, or have as their aim to cause, injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy; or (iii) has knowingly harbored one or more individuals described in subparagraphs (i) or (ii) of subsection 2(a)(1) of this order; and (2) it is in the interest of the United States that such individual be subject to this order. (b) It is the policy of the United States that the Secretary of Defense shall take all necessary measures to ensure that any individual subject to this order is detained in accordance with section 3, and, if the individual is to be tried, that such individual is tried only in accordance with section 4. (c) It is further the policy of the United States that any individual subject to this order who is not already under the control of the Secretary of Defense but who is under the control of any other officer or agent of the United States or any State shall, upon delivery of a copy of such written determination to such officer or agent, forthwith be placed under the control of the Secretary of Defense. ... Sec. 3 Detention Authority of the Secretary of Defense. Any individual subject to this order shall be – (a) detained at an appropriate location designated by the Secretary of Defense outside or within the United States; ... Sec.4 Authority of the Secretary of Defense Regarding Trials of Individuals Subject to this Order (a) Any individual subject to this order shall, when tried, be tried by military commission for any and all offenses triable by military commission that such individual is alleged to have committed, and may be punished in accordance with the penalties provided under applicable law, including life imprisonment or death. ” 2. Military Commission Order no. 1 72. On 21 March 2002 D. Rumsfeld, the US Secretary of Defense at the relevant time, issued the Military Commission Order No. 1 (effective immediately) on Procedures for Trials by Military Commission of Certain Non-United States Citizens in the War Against Terrorism ( “ the 2002 Military Commission Order ” ). The order was promulgated on the same day. The relevant parts of the order read as follows: “ 2. ESTABLISHMENT OF MILITARY COMMISSIONS In accordance with the President ’ s Military Order, the Secretary of Defense or a designee (Appointing Authority ’ ) may issue orders from time to time appointing one or more military commissions to try individuals subject to the President ’ s Military Order and appointing any other personnel necessary to facilitate such trials. 4. COMMISSION PERSONNEL A. Members (1) Appointment The Appointing Authority shall appoint the members and the alternate member or members of each Commission. ... (2) Number of Members Each Commission shall consist of at least three but no more than seven members, the number being determined by the Appointing Authority. ... (3) Qualifications Each member and alternate member shall be a commissioned officer of the United States armed forces ( ‘ Military Officer ’ ), including without limitation reserve personnel on active duty, National Guard personnel on active duty in Federal service, and retired personnel recalled to active duty. ... 6. CONDUCT OF THE TRIAL ... B. Duties of the Commission during Trial The Commission shall: (1) Provide a full and fair trial. (2) Proceed impartially and expeditiously, strictly confining the proceedings to a full and fair trial of the charges, excluding irrelevant evidence, and preventing any unnecessary interference or delay. (3) Hold open proceedings except where otherwise decided by the Appointing Authority or the Presiding Officer in accordance with the President ’ s Military Order and this Order. Grounds for closure include the protection of information classified or classifiable under reference (d); information protected by law or rule from unauthorized disclosure; the physical safety of participants in Commission proceedings, including prospective witnesses; intelligence and law enforcement sources, methods, or activities; and other national security interests. The Presiding Officer may decide to close all or part of a proceeding on the Presiding Officer ’ s own initiative or based upon a presentation, including an ex parte, in camera presentation by either the Prosecution or the Defense. A decision to close a proceeding or portion thereof may include a decision to exclude the Accused, Civilian Defense Counsel, or any other person, but Detailed Defense Counsel may not be excluded from any trial proceeding or portion thereof. Except with the prior authorization of the Presiding Officer and subject to Section 9, Defense Counsel may not disclose any information presented during a closed session to individuals excluded from such proceeding or part thereof. Open proceedings may include, at the discretion of the Appointing Authority, attendance by the public and accredited press, and public release of transcripts at the appropriate time. Proceedings should be open to the maximum extent practicable. Photography, video, or audio broadcasting, or recording of or at Commission proceedings shall be prohibited, except photography, video, and audio recording by the Commission pursuant to the direction of the Presiding Officer as necessary for preservation of the record of trial. ... D. Evidence (1) Admissibility Evidence shall be admitted if, in the opinion of the Presiding Officer (or instead, if any other member of the Commission so requests at the time the Presiding Officer renders that opinion, the opinion of the Commission rendered at that time by a majority of the Commission), the evidence would have probative value to a reasonable person. (5) Protection of Information (a) Protective Order The Presiding Officer may issue protective orders as necessary to carry out the Military Order and this Order, including to safeguard ‘ Protected Information ’, which includes: (i) information classified or classifiable pursuant to reference (d); (ii) information protected by law or rule from unauthorized disclosure; (iii) information the disclosure of which may endanger the physical safety of participants in Commission proceedings, including prospective witnesses; (iv) information concerning intelligence and law enforcement sources, methods, or activities; or (v) information concerning other national security interests. As soon as practicable, counsel for either side will notify the Presiding Officer of any intent to offer evidence involving Protected Information. (b) Limited Disclosure The Presiding Officer, upon motion of the Prosecution or sua sponte, shall, as necessary to protect the interests of the United States and consistent with Section 9, direct (i) the deletion of specified items of Protected Information from documents to be made available to the Accused, Detailed Defense Counsel, or Civilian Defense Counsel; (ii) the substitution of a portion or summary of the information for such Protected Information; or (iii) the substitution of a statement of the relevant facts that the Protected Information would tend to prove. The Prosecution ’ s motion and any materials submitted in support thereof or in response thereto shall, upon request of the Prosecution, be considered by the Presiding Officer ex parte, in camera, but no Protected Information shall be admitted into evidence for consideration by the Commission if not presented to Detailed Defense Counsel. ... G. Sentence Upon conviction of an Accused, the Commission shall impose a sentence that is appropriate to the offense or offenses for which there was a finding of Guilty, which sentence may include death, imprisonment for life or for any lesser term, payment of a fine or restitution, or such other lawful punishment or condition of punishment as the Commission shall determine to be proper. Only a Commission of seven members may sentence an Accused to death. A Commission may (subject to rights of third parties) order confiscation of any property of a convicted Accused, deprive that Accused of any stolen property, or order the delivery of such property to the United States for disposition. H. Post-Trial Procedures ... (2) Finality of Findings and Sentence A Commission finding as to a charge and any sentence of a Commission becomes final when the President or, if designated by the President, the Secretary of Defense makes a final decision thereon pursuant to Section 4(c)(8) of the President ’ s Military Order and in accordance with Section 6(H)(6) of this Order. An authenticated finding of Not Guilty as to a charge shall not be changed to a finding of Guilty. Any sentence made final by action of the President or the Secretary of Defense shall be carried out promptly. Adjudged confinement shall begin immediately following the trial. ... (4) Review Panel The Secretary of Defense shall designate a Review Panel consisting of three Military Officers, which may include civilians commissioned pursuant to reference (e). At least one member of each Review Panel shall have experience as a judge. The Review Panel shall review the record of trial and, in its discretion, any written submissions from the Prosecution and the Defense and shall deliberate in closed conference. The Review Panel shall disregard any variance from procedures specified in this Order or elsewhere that would not materially have affected the outcome of the trial before the Commission. Within thirty days after receipt of the record of trial, the Review Panel shall either (a) forward the case to the Secretary of Defense with a recommendation as to disposition, or (b) return the case to the Appointing Authority for further proceedings, provided that a majority of the Review Panel has formed a definite and frim conviction that a material error of law occurred. (5) Review by the Secretary of Defense The Secretary of Defense shall review the record of trial and the recommendation of the Review Panel and either return the case for further proceedings or, unless making the final decision pursuant to a Presidential designation under Section 4(c)(8) of the President ’ s Military Order, forward it to the President with a recommendation as to disposition. (6) Final Decision After review by the Secretary of Defense, the record of trial and all recommendations will be forwarded to the President for review and final decision (unless the President has designated the Secretary of Defense to perform this function). If the President has so designated the Secretary of Defense, the Secretary may approve or disapprove findings or change a finding of Guilty to a finding of Guilty to a lesser-included offense, or mitigate, commute, defer, or suspend the sentence imposed or any portion thereof. If the Secretary of Defense is authorized to render the final decision, the review of the Secretary of Defense under Section 6(H)(5) shall constitute the final decision. ” 3. The 2006 Military Commissions Act and the 2009 Military Commissions Act 73. On 29 June 2006 the Supreme Court ruled in Hamdan v. Rumsfeld, 548 U.S. 557, 635 (2006), that the military commission “ lack [ ed ] the power to proceed because its structure and procedures violate[d] both the UCMJ [Uniform Code of Military Justice] and the four Geneva Conventions signed in 1949 ”. It further held: “ (a) The commission ’ s procedures, set forth in Commission Order No. 1, provide, among other things, that an accused and his civilian counsel may be excluded from, and precluded from ever learning what evidence was presented during, any part of the proceeding the official who appointed the commission or the presiding officer decides to ‘ close ’. Grounds for closure include the protection of classified information, the physical safety of participants and witnesses, the protection of intelligence and law enforcement sources, methods, or activities, and “ other national security interests. ” Appointed military defense counsel must be privy to these closed sessions, but may, at the presiding officer ’ s discretion, be forbidden to reveal to the client what took place therein. Another striking feature is that the rules governing Hamdan ’ s commission permit the admission of any evidence that, in the presiding officer ’ s opinion, would have probative value to a reasonable person. Moreover, the accused and his civilian counsel may be denied access to classified and other ‘ protected information ’, so long as the presiding officer concludes that the evidence is ‘ probative ’ and that its admission without the accused ’ s knowledge would not result in the denial of a full and fair trial. ” 74. In consequence, the Military Commission Order was replaced by the Military Commissions Act of 2006 ( “ the 2006 MCA ” ), an Act of Congress, passed by the US Senate and US House of Representatives, respectively, on 28 and 29 September 2006 and signed into law by President Bush on 17 October 2006. On 28 October 2009 President Obama signed into law the Military Commissions Act of 2009 ( “ the 2009 MCA ” ). On 27 April 2010 the Department of Defense released new rules governing the military commission proceedings. The rules include some improvements of the procedure but they still continue, as did the rules applicable in 2001-2009, to permit the introduction of coerced statements under certain circumstances if “ use of such evidence would otherwise be consistent with the interests of justice ”. 4. Publicly expressed concerns regarding the procedure before the military commission 75. On 28 November 2001 the Human Rights Watch published “ Fact Sheet: Past U.S. Criticism of Military Tribunals ”, which, in so far as relevant, read as follows: “ Under President Bush ’ s November 13th Military Order on military commissions, any foreign national designated by the President as a suspected terrorist or as aiding terrorists could potentially be detained, tried, convicted and even executed without a public trial, without adequate access to counsel, without the presumption of innocence or even proof of guilt beyond reasonable doubt, and without the right to appeal. The U.S. State Department has repeatedly criticized the use of military tribunals to try civilians and other similar limitations on due process around the world. Indeed, its annual Country Reports on Human Rights Practices evaluate each country on the extent to which it guarantees the right to a ‘ fair public trial ’ – which it defines to include many of the due process rights omitted by the President ’ s Military Order. The Order may make future U.S. efforts to promote such standards appear hypocritical. Indeed, even if its most egregious failings are corrected in subsequent regulations, the text of the Order may become a model for governments seeking a legal cloak for political repression. ” 76. On 8 December 2001 New York Times published two reports relating to the procedure before the military commissions – “ United Nations: Rights Official Criticizes U.S. Tribunal Plan ” in its World Briefing and an article “ Nation challenged ”. The material in the World Briefing read: “ The United Nations human rights commissioner, Mary Robinson, criticized the Bush administration plan to set up military tribunals for terrorist suspects, saying they skirt democratic guarantees. These safeguards, including right to a fair trial, must be upheld even in crises, she said, adding that it was not enough to say trust me as a government. She said that the Sept. 11 terrorist attacks were crimes against humanity meriting special measures but said that the plan for secret trials was so overly broad and vaguely worded that it threatened fundamental rights. ” The article read, in so far as relevant, as follows: “ More than 300 law professors from around the country are protesting President Bush ’ s order to establish military tribunals for foreign terrorist suspects. In a letter that originated at Yale Law School, the lawyers assert that such tribunals are ‘ legally deficient, unnecessary and unwise ’. The lawyers, who represent varying institutions and political philosophies, say the tribunals as outlined so far would violate the separation of powers, would not comport with constitutional standards of due process and would allow the president to violate binding treaties. The tribunals, they say, assume that procedures used in civil courts or military courts-martial would be inadequate to handle such cases. And they say that using them would undercut the ability of the United States to protest when such tribunals are used against American citizens in other countries. The letter was sent to Senator Patrick J. Leahy, the Vermont Democrat who is chairman of the Judiciary Committee and who questioned Attorney General John Ashcroft at length on Thursday about the tribunals. Mr. Ashcroft defended them, saying they would be used only for war crimes. Referring to the Sept 11 terrorist attacks, Mr. Ashcroft said, ‘ When we come to those responsible for this, say who are in Afghanistan, are we supposed to read them the Miranda rights, hire a flamboyant defense lawyer, bring them back to the United States to create a new cable network of Osama TV? ’ ... ” 77. On 22 March 2003 Amnesty International issued a public statement “ USA – Military commissions: Second-class justice ” which, in so far as relevant, read as follows: “ The operating guidelines for trials by executive military commission, issued by the US Secretary of Defence yesterday, have thrown into stark relief the fundamental defects of the Military Order signed by President Bush on 13 November 2001, Amnesty International said today. ‘ We have said from the start that the Military Order was too flawed to fix and should be revoked ’, Amnesty International said. ‘ That the Pentagon has paid lip service to due process in its commission guidelines cannot disguise the fact that any trial before these executive bodies would violate the USA ’ s international obligations ’. Amnesty International is repeating its call for the Military Order to be rescinded, and for no person to be tried before the military commissions. The fundamental flaws include: ! The Military Order is discriminatory. US nationals will not be tried by military commission, even if accused of the same offence as a foreign national, but rather tried by ordinary civilian courts with a broad range of fair trial protections. Under the Order, selected foreign nationals will receive second-class justice, in violation of international law which prohibits discriminatory treatment, including on the basis of nationality. ! The commissions would allow a lower standard of evidence than is admissible in the ordinary courts, including hearsay evidence. The Pentagon guidelines do not expressly exclude statements extracted under torture or other coercive methods. These deficiencies are particularly troubling given the lack of due safeguards during interrogation and the fact that the commissions will have the power to hand down death sentences. ! In violation of international law, there will be no right of appeal to an independent and impartial court established by law. Instead, there would be a review by a three-member panel appointed by the Secretary of Defence. ! The military commissions would entirely lack independence from the executive. The President has given himself or the Secretary of Defence the power to name who will be tried by the commissions, to appoint or to remove the members of those commissions, to pick the panel that will review convictions and sentences, and to make the final decision in any case. ... The procedures infringe the right to a fair trial in a number of other ways, including failing to guarantee that civilian defence counsel will be able to see all the evidence against their clients, permitting the use of secret evidence and anonymous witnesses, failing to guarantee that all relevant documents will be translated for the accused, and forcing the accused to accept US military lawyers as co-counsel against their wishes. Moreover, Pentagon officials yesterday stated that even if acquitted by the military commissions, the defendants may remain in detention indefinitely. Amnesty International is concerned that the Military Order of 13 November allows for indefinite detention without trial. The USA is currently holding without charge or trial more than 500 people in Afghanistan and Guantánamo Bay. They have been denied access to the courts or to legal counsel. This is despite the fact that interrogations at Camp X-Ray have been continuing for two months. ... ” F. Review of the CIA ’ s activities involved in the HVD Programme in 2001-2009 by the US Senate 1. Course of the review 78. In March 2009 the US Senate Intelligence Committee initiated a review of the CIA ’ s activities involved in the HVD Programme, in particular the secret detention at foreign “ black sites ” and the use of the EITs. That review originated in an investigation that had begun in 2007 and concerned the CIA ’ s destruction of videotapes documenting interrogations of Abu Zubaydah and Al Nashiri. The destruction was carried out in November 2005. 79. The Committee ’ s “ Study of the Central Intelligence Agency ’ s Detention and Interrogation ” was finished towards the end of 2012. The document describes the CIA ’ s HVD Programme between September 2001 and January 2009. It examined operations at overseas CIA clandestine detention facilities, the use of the EITs and conditions of 119 known individuals detained by CIA during that period (see also paragraphs 22-24 above). The US Senate Committee on Intelligence, together with their staff reviewed thousands of CIA cables describing the interrogations of Abu Zubaydah and Al Nashiri and more that than six million pages of CIA material, including operational cables, intelligence reports, internal memoranda and emails, briefing materials, interview transcripts, contracts and other records. 80. On 3 April 2014 the Intelligence Committee decided to declassify the report ’ s executive summary and twenty findings and conclusions. In this connection, Senator Dianne Feinstein issued a statement which read, in so far as relevant, as follows: “ The Senate Intelligence Committee this afternoon voted to declassify the 480-page executive summary as well as 20 findings and conclusions of the majority ’ s five-year study of the CIA Detention and Interrogation Program, which involved more than 100 detainees. The purpose of this review was to uncover the facts behind this secret program, and the results were shocking. The report exposes brutality that stands in stark contrast to our values as a nation. It chronicles a stain on our history that must never again be allowed to happen. ... The report also points to major problems with CIA ’ s management of this program and its interactions with the White House, other parts of the executive branch and Congress. This is also deeply troubling and shows why oversight of intelligence agencies in a democratic nation is so important. ... The full 6,200 page full report has been updated and will be held for declassification at a later time. ” The executive summary with findings and conclusions was released on 14 December 2014 (see also paragraph 22 above). 81. The passages of the 2014 US Senate Committee Report relating to Mr Al Nashiri ’ s secret detention relevant for the present case are rendered below (see paragraphs 99, 109, 114, 12 6-127, 133, 139 -1 40 and 160-164 below). 2. Findings and conclusions 82. The Committee made twenty findings and conclusions. They can be summarised, in so far as relevant, as follows. 83. Conclusion 2 states that “ the CIA ’ s justification for the use of its enhanced interrogation techniques rested on inaccurate claims of their effectiveness ”. 84. Conclusion 3 states that “ [t]he interrogations of the CIA were brutal and far worse than the CIA represented to policymakers and others ”. In that regard, it is added : “ Beginning with the CIA ’ s first detainee, Abu Zubaydah, and continuing with numerous others, the CIA applied its enhanced interrogation techniques with significant repetition for days or weeks at a time. Interrogation techniques such as slaps and ‘ wallings ’ (slamming detainees against a wall) were used in combination, frequently concurrent with sleep deprivation and nudity. Records do not support CIA representations that the CIA initially used an ‘ an open, nonthreatening approach ’, or that interrogations began with the ‘ least coercive technique possible ’ and escalated to more coercive techniques only as necessary. ” 85. Conclusion 4 states that “ the conditions of confinement for CIA detainees were harsher than the CIA had represented to the policymakers and others ” and that “ conditions at CIA detention sites were poor, and were especially bleak early in the programme ”. As regards conditions at later stages, the following findings were made: “ Even after the conditions of confinement improved with the construction of new detention facilities, detainees were held in total isolation except when being interrogated or debriefed by CIA personnel. Throughout the program, multiple CIA detainees who were subjected to the CIA ’ s enhanced interrogation techniques and extended isolation exhibited psychological and behavioral issues, including hallucinations, paranoia, insomnia, and attempts at self-harm and self-mutilation. Multiple psychologists identified the lack of human contact experienced by detainees as a cause of psychiatric problems. ” 86. Conclusion 8 states that “ the CIA operation and management of the program complicated, and in some cases impeded, the national security missions of other Executive Branch Agencies ”, including the Federal Bureau of Investigation ( “ the FBI ” ), the State Department and the Office of the Director of National Intelligence ( “ the ODNI ” ). In particular, the CIA withheld or restricted information relevant to these agencies ’ missions and responsibilities, denied access to detainees, and provided inaccurate information on the HVD Programme to them. 87. The findings under Conclusion 8 also state that, while the US authorities ’ access to information about “ black sites ” was restricted or blocked, the local authorities in countries hosting CIA secret detention facilities were generally informed of their existence. In that respect, it is stated: “ The CIA blocked State Department leadership from access to information crucial to foreign policy decision-making and diplomatic activities. The CIA did not inform two secretaries of state of locations of CIA detention facilities, despite the significant foreign policy implications related to the hosting of clandestine CIA detention sites and the fact that the political leaders of host countries were generally informed of their existence. Moreover, CIA officers told U.S. ambassadors not to discuss the CIA program with State Department officials, preventing the ambassadors from seeking guidance on the policy implications of establishing CIA detention facilities in the countries in which they served. In two countries, U.S. ambassadors were informed of plans to establish a CIA detention site in the countries where they were serving after the CIA had already entered into agreements with the countries to host the detention sites. In two other countries where negotiations on hosting new CIA detention facilities were taking place, the CIA told local government officials not to inform the U.S. ambassadors. ” 88. Conclusion 11 states that “ the CIA was unprepared as it began operating its Detention and Interrogation Program more than six months after being granted detention authorities ”. The CIA was not prepared to take custody of its first detainee, Abu Zubaydah and lacked a plan for the eventual disposition of its detainees. After taking custody of Abu Zubaydah, CIA officers concluded that he “ should remain incommunicado for the remainder of his life ”, which “ may preclude from [his] being turned over to another country ”. Also, as interrogations started, the CIA deployed persons who lacked relevant training and experience. 89. According to Conclusion 13, “ two contract psychologists devised the CIA enhanced interrogation techniques and played a central role in the operation, assessment and management of the [programme] ”. It was confirmed that “ neither psychologist had any experience as an interrogator. Nor did either have specialised knowledge of Al-Qa ’ ida, a background in counter-terrorism, or any relevant or cultural or linguistic expertise ”. The contract psychologists developed theories of interrogation based on “ learned helplessness ” and developed the list of EITs approved for use against Abu Zubaydah and other detainees. 90. Conclusion 14 states that “ CIA detainees were subjected to coercive interrogation techniques that had not been approved by the Department of Justice or had not been authorised by the CIA Headquarters ”. It was confirmed that prior to mid-2004 the CIA routinely subjected detainees to nudity and dietary manipulation. The CIA also used abdominal slaps and cold water dousing on several detainees during that period. None of these techniques had been approved by the Department of Justice. At least seventeen detainees were subjected to the EITs without authorisation from CIA Headquarters. 91. Conclusion 15 states that “ the CIA did not conduct a comprehensive or accurate accounting of the number of individuals it detained, and held individuals who did not meet the legal standard for detention ”. It was established that the CIA had never conducted a comprehensive audit or developed a complete and accurate list of the persons it had detained or subjected to the EITs. The CIA statements to the Committee and later to the public that the CIA detained fewer than 100 individuals, and that less than a third of those 100 detainees were subjected to the CIA ’ s EITs, were inaccurate. The Committee ’ s review of CIA records determined that the CIA detained at least 119 individuals, of whom at least thirty-nine were subjected to the CIA ’ s enhanced interrogation techniques. Of the 119 known detainees, at least 26 were wrongfully held and did not meet the detention standard in the MON (see paragraph 25 above). 92. Conclusion 19 states that “ the CIA ’ s Detention and Interrogation Program was inherently unsustainable and had effectively ended by 2006 due to unauthorized press disclosures, reduced cooperation from other nations, and legal and oversight concerns ”. 93. It was established that the CIA required secrecy and cooperation from other nations in order to operate clandestine detention facilities. According the 2014 US Senate Committee Report, both had eroded significantly before President Bush publicly disclosed the programme on 6 September 2006 (see also paragraph 60 above). From the beginning of the program, the CIA faced significant challenges in finding nations willing to host CIA clandestine detention sites. These challenges became increasingly difficult over time. With the exception of one country ( name blackened) the CIA was forced to relocate detainees out of every country in which it established a detention facility because of pressure from the host government or public revelations about the programme. Moreover, lack of access to adequate medical care for detainees in countries hosting the CIA ’ s detention facilities caused recurring problems. The refusal of one host country to admit a severely ill detainee into a local hospital due to security concerns contributed to the closing of the CIA ’ s detention facility in that country. 94. In early 2004, the anticipation of the US Supreme Court ’ s decision to grant certiorari in the case of Rasul v. Bush (see also paragraph 6 2 above) prompted the CIA to move detainees out of a CIA detention facility at Guantánamo Bay, Cuba. In mid-2004, the CIA temporarily suspended the use of the EITs after the CIA Inspector General recommended that the CIA seek an updated legal opinion from the Office of Legal Counsel. In late 2005 and in 2006, the Detainee Treatment Act and then the U.S. Supreme Court decision in Hamdan v. Rumsfeld (see also paragraph 73 above) caused the CIA to again temporarily suspend the use of the EITs. 95. According to the report, by 2006, press disclosures, the unwillingness of other countries to host existing or new detention sites, and legal and oversight concerns had largely ended the CIA ’ s ability to operate clandestine detention facilities. After detaining at least 113 individuals through 2004, subsequently the CIA brought only six additional detainees into its custody: four in 2005, one in 2006, and one in 2007. By March 2006, the programme was operating in only one country. The CIA last used its EITs on 8 November 2007. The CIA did not hold any detainees after April 2008. 96. Conclusion 20 states that “ the CIA ’ s Detention and Interrogation Program damaged the United States ’ standing in the world, and resulted in other significant monetary and non-monetary costs ”. It was confirmed that, as the CIA records indicated, the HVD Programme costed well over USD 300 million in non-personnel costs. This included funding for the CIA to construct and maintain detention facilities, including two facilities costing nearly [number redacted ] million that were never used, in part due to the host country ’ s political concerns. 97. Conclusion 20 further states that “ to encourage governments to clandestinely host CIA detention sites, or to increase support for existing sites, the CIA provided millions of dollars in cash payments to foreign government officials. The CIA Headquarters encouraged CIA Stations to construct ‘ wish lists ’ of proposed financial assistance to [phrase redacted ] [entities of foreign governments] and to ‘ think big ’ in terms of that assistance ”. IV. THE PARTICULAR CIRCUMSTANCES OF THE CASE A. The applicant ’ s capture, transfer to the CIA ’ s custody, his secret detention and transfers from mid - October 2002 to 6 June 2003, as established by the Court in Al Nashiri v. Poland and supplemented by the 2014 US Senate Committee Report 98. As regards the events preceding the applicant ’ s secret detention in Poland, i.e. his capture in Dubai, United Arab Emirates, and initial detention from the end of October 2002 to 4 December 2002, in Al Nashiri v. Poland (§§ 401 and 404) the Court held as follows : “ 401. The Court notes that the CIA official documents clearly confirm that by November 2002 the Agency had the applicant and Mr Abu Zubaydah, both referred to as ‘ High-Value Detainees ’, in its custody and that they were interrogated at a CIA black site with the use of the EITs – the applicant immediately after his arrival at that place on 15 November 2002 .... ... 404. In the light of the above first-hand CIA documentary evidence and clear and convincing expert evidence, the Court finds established beyond reasonable doubt that the applicant, following his capture, was detained in the CIA detention facility in Bangkok from 15 November 2002 to 4 December 2002, that Mr Abu Zubaydah was also held in the same facility at that time and that they were both moved together to ‘ another CIA black site ’ on 4 December 2002 (see Husayn (Abu Zubaydah), cited above, § 404). ” The experts, Mr J.G.S and Senator Marty, heard by the Court at the fact-finding hearing in Al Nashiri v. Poland, identified the detention facility as the one known under the codename “ Cat ’ s Eye ” or “ Catseye ” and located in Bangkok, Thailand ( see Al Nashiri v. Poland, cited above, § 403). At “ Cat ’ s Eye ” the CIA subjected the applicant to the EITs, including waterboarding from 15 November to 4 December 2002 (ibid. § § 86-88). 99. As regards the early period of the applicant ’ s detention, the 2014 US Senate Committee Report includes the following information. It indicates the date of the applicant ’ s capture as “ mid-October 2002 ”. According to the report, at that time “ he provided information while in custody of a foreign government ”. On an unspecified date – i.e. redacted in the 2014 US Senate Committee Report – in November 2002 he was rendered by the CIA to a secret detention site code-named “ Detention Site Cobalt ”. In Al Nashiri v. Poland that site is referred to as being code-named “ Salt Pit ” and located in Afghanistan (see Al Nashiri v. Poland, cited above, §§ 83-84). The report states that he was held at that site briefly, for a number of days (redacted in the report), before being transferred to another detention site, identified in Al Nashiri v. Poland as “ Cat ’ s Eye ” in Thailand (see paragraph 9 7 above). In the 2014 US Senate Committee Report that facility is referred to as “ Detention Site Green ”. The report further states that: “ In December 2002, when DETENTION SITE GREEN was closed, Al Nashiri and Abu Zubaydah were rendered to DETENTION SITE BLUE. ” 100. As regards the events after 4 December 2002, in Al Nashiri v. Poland (§ 417) the Court held: “ 417. Assessing all the above facts and evidence as a whole, the Court finds it established beyond reasonable doubt that: (1) on 5 December 2002 the applicant, together with Mr Abu Zubaydah, arrived in Szymany on board the CIA rendition aircraft N63MU; (2) from 5 December 2002 to 6 June 2003 the applicant was detained in the CIA detention facility in Poland identified as having the codename ‘ Quartz ’ and located in Stare Kiejkuty; (3) during his detention in Poland under the HVD Programme he was interrogated by the CIA and subjected to EITs and also to unauthorised interrogation techniques as described in the 2004 CIA Report, 2009 DOJ Report and the 2007 ICRC Report; 4) on 6 June 2003 the applicant was transferred by the CIA from Poland on the CIA rendition aircraft N379P. ” 101. The events that took place between 5 December 2002 and 6 June 2003 at the CIA detention facility identified in Al Nashiri v. Poland as being code-named “ Quartz ” and located in Poland, including the use of unauthorised interrogation techniques against the applicant, correspond to the events that the 2014 US Senate Committee Report relates as occurring at “ Detention Site Blue ”. B. The applicant ’ s transfers and detention between his rendition from Poland on 6 June 2003 and his alleged rendition to Romania on 12 April 2004 as reconstructed on the basis of the 2014 US Senate Committee Report and other documents and as corroborated by experts heard by the Court 102. The 2014 US Senate Committee Report has established that “ beginning in June 2003, the CIA transferred Al Nashiri to five different CIA detention facilities before he was transferred to US military custody on 5 September 2006 ”. 103. On the basis of their investigations, research and various material in the public domain the experts heard by the Court at the fact-finding hearing reconstructed the chronology of the applicant ’ s transfers and identified countries of his secret detention. 104. Mr J.G.S. stated that the applicant was transported from Poland first to Morocco, second to Guantánamo Bay, third to Romania, then to the fourth site – which, according to him, was with a high degree of probability Lithuania – before being transferred to Afghanistan, the fifth “ black site ” and, finally back to Guantánamo Bay. In particular, Mr J.G.S. testified as follows: “ ... [I]n respect of Mr Al Nashiri, it is stated explicitly and unredacted in the Senate Report that from June 2003 Al Nashiri was moved to five different detention facilities before his ultimate transfer to Guantánamo Bay in September 2006. This provides us with a precise timeframe, June 2003 to September 2006, and it provides us with a precise number of transfers which we then have to correlate with his interrogation schedule and the available flight data to determine where he was held. It is on that basis that we have been able to arrive at the conclusion that he was transported from Poland first to Morocco, then onwards to Guantánamo Bay, then onwards to Romania, to one further site, and with a high degree of probability, Lithuania, before being transferred back to Afghanistan as no. 5, and finally to Guantánamo Bay. There are very limited possibilities as to where the CIA could take its detainees because it always maintained a very small range of sites, and because the planes are the same, they operate upon systematic methodologies, notably dummy flight planning, switching of aircraft and all the other tactical elements described. One can narrow down that probability to a certitude, with the right rigour of investigation, and it is that which we have applied to arrive at these conclusions, which have subsequently been validated in the official record. ” 105. In the light of the material in the Court ’ s possession the chronology of the applicant ’ s detention can be described as follows. 1. Transfer from Poland to Morocco and detention in Morocco (from 6 June to 23 September 2003) 106. In Al Nashiri v. Poland the Court established, inter alia, that in the light of the accumulated evidence, “ there [could] be no doubt that the N379P, also known as “ Guantánamo Express ”, a Gulfstream V with capacity for eighteen passengers but usually configured for eight, arrived in Szymany on 5 June 2003 at 01:00 from Kabul, Afghanistan. It stayed on the runway for over two hours and then departed for Rabat, Morocco ” (see Al Nashiri v. Poland, cited above, § 408). It was also established that it had been one of the most notorious rendition aircraft used by the CIA for transportation of its prisoners. The plane N379P set off from Dulles Airport, Washington D.C. on Tuesday 3 June at 23:33 GMT and undertook a four-day flight circuit, during which it landed in and departed from six different foreign countries including Germany, Uzbekistan, Afghanistan, Poland, Morocco and Portugal. The aircraft returned from Portugal back to Dulles Airport on 7 June 2003 ( ibid. §§ 103-106 and 291-292). 107. Mr J.G.S. at the fact-finding hearing testified as follows: “ As was established in the earlier proceedings, Al Nashiri was taken from Poland to Morocco, to the facility near Rabat in June of 2003, arriving there on 6 June 2003. And after detention there for a period of only 3 months, he was then transferred to the CIA secret facility at Guantánamo Bay. The declassified Senate Committee Report provides extensive detail on the evolution of CIA operations in respect of Morocco and Guantánamo Bay, notably in this passage it refers specifically to Al Nashiri as having been transferred out of a country which is identifiable as Morocco, to the CIA detention facility at Guantánamo Bay, Cuba, after a period of five months beyond the original agreed timeframe. This passage resides within a section of the report which describes difficult and sometimes acrimonious relations between the CIA and its Moroccan counterparts, and it is evident that, in fact, the date, redacted in this passage, is September 2003, which is precisely the time at which our flight information demonstrates an aircraft arriving in Morocco and transporting detainees onwards to Guantánamo Bay. ” 108. According to Mr J.G.S., the plane N379P took the applicant, together with another CIA detainee, Ramzi bin al-Shibh, from Szymany, Poland to Rabat, Morocco, to a facility lent to the CIA by their Moroccan counterparts. He testified as follows: “ The starting point in assessing Al Nashiri ’ s own chronology of secret detention in these proceedings should be Poland, because we have it confirmed, as a matter of judicial fact, that Al Nashiri was detained in Poland, having been transported there on the flight of N63MU from Bangkok to Szymany on 4 and 5 December 2002. So he found himself in Poland at the end of 2002, during which he was subjected to all the documented abuse, the enhanced interrogation techniques and the unauthorised techniques described in the earlier proceedings, into the calendar year 2003. In the earlier proceedings we presented a range of flights which brought detainees into Poland. However, the first flight which took detainees out of Poland occurred on 5 and 6 June 2003. Based upon, now, the confirmations in the Senate Committee Report, we can see this outward flight from Poland as the starting point of Mr Nashiri ’ s next chronology of detention. It is stated explicitly June 20 03, from that point onwards, Mr Nashiri was detained in five further sites before ultimately being transferred to Guantánamo in September 2006. The flight on 5 June 2003 took Mr Nashiri, together with another CIA detainee, Ramzi bin al -Shibh, to Rabat, Morocco. Rabat, Morocco, at that time was a facility lent to the Agency, to CIA, by their Moroccan counterparts. It was a facility which resided within the Moroccan system, and it is described in explicit detail in the Senate Report. That facility was the same place to which some persons from Guantánamo would be later taken back, but I will explain why Mr Nashiri was not one of those, with reference to the same material. In 2003, according to the report, it was allowed to operate until September, at which point relations became acrimonious and certain conditions were placed upon it. The CIA collected its detainees who were housed there, which included Mr Al Nashiri, on 23 September 2003 in the rendition circuit I demonstrated. That is the date confirmed from the CIA ’ s own reporting, and the flight confirmed through our investigations, the rendition circuit I demonstrated. So we are now taking Mr Nashiri from Poland to Morocco as number 1, Guantánamo as number 2. ” 109. The 2014 US Senate Committee Report ’ s section entitled “ Country [name redacted ] Detains Individuals on the CIA ’ s Behalf ”, in so far as relevant, reads as follows: “ Consideration of a detention facility in Country [name blackened] began in [month blackened] 2003, when the CIA sought to transfer Ramzi bin al-Shibh from the custody of a foreign government to CIA custody [blackened] which had not yet informed the country ’ political leadership of the CIA ’ s request to establish a clandestine detention facility in Country [blackened], surveyed potential sites for the facility, while the CIA set aside [USD] [number blackened] million for its construction. In 2003, the CIA arranged for a ‘ temporary patch ’ involving placing two CIA detainees (Ramzi bin al-Shibh and Abd al-Rahim al-Nashiri) within an already existing Country [blackened] detention facility, until the CIA ’ s own facility could be built. ... By [day/month blackened] 2003, after an extension of five months beyond the originally agreed upon timeframe for concluding CIA detention activities in Country [blackened], both bin al-Shibh and al-Nashiri had been transferred out of Country [blackened]| to the CIA detention facility at Guantánamo Bay, Cuba. ” 2. Transfer from Morocco to Guantánamo and detention in Guantánamo (from 23 September 2003 to 12 April 2004) 110. According to Mr J.G.S, on 23 September 2003 the applicant was transported from Rabat to Guantánamo Bay on the plane N313P. Mr J.G.S., in the course of the above mentioned PowerPoint presentation at the fact-finding hearing (see paragraphs 18 above and 36 7-376 below ), gave the following details concerning N313P ’ s circuit of 20-24 September 2003: “ Having departed from Washington, this aircraft, ... N313P, flew to Prague in the Czech Republic for a stopover before heading eastward to Tashkent, Uzbekistan, where dissident detainees, handed over to the CIA by local intelligence services, were rendered to secret detention in Kabul. From Kabul, on 21 September 2003, the aircraft transported several detainees out of detention in Afghanistan towards detention in Europe. The first stop in Europe was the detention site at Szymany, in northern Poland, which was explicitly described in the [ Al Nashiri v. Poland and Husayn (Abu Zubaydah ) v. Poland ] proceedings, and this circuit is unprecedented and indeed unique because it is the only occasion on which a rendition flight carrying CIA detainees left one European site and flew directly to another European detention site, in this case in Bucharest, Romania. ... From Bucharest, the rendition plane carried further detainees out to Rabat. These were persons who had boarded on earlier legs, not persons leaving Romania, and from Rabat to Guantánamo Bay, where for four months, in late 2003 and early 2004, the CIA operated a secret detention facility apart from the larger military facility at Guantánamo Bay. ” 111. As established in Husayn (Abu Zubaydah) v. Poland, the plane N313P landed in Szymany, Poland on 22 September 2003 en route from Kabul, Afghanistan. On that day Mr Abu Zubaydah was transferred by the CIA from Poland on board that plane. The plane set off from Dulles Airport in Washington, D.C. on Saturday 20 September 2003 at 22h02m GMT and undertook a four-day flight circuit, during which it landed in and departed from six different foreign countries, as well as the U.S. Naval Base at Guantánamo Bay. These six countries, in the order in which the aircraft landed there, were: the Czech Republic, Uzbekistan, Afghanistan, Poland, Romania, and Morocco. The aircraft flew from Rabat, Morocco to Guantánamo Bay on the night of 23 September 2003, landing there in the morning of 24 September 2003. 112. In Husayn (Abu Zubaydah) v. Poland (see § 312) Mr J.G.S. gave the following account of the “ final rendition circuit ” through Poland executed by the N313P plane, a Boeing 737, on 22 September 2003: “ One flight circuit however is of particular significance and this is the final part of our presentation in which we would like to discuss how the detention operations in Poland were brought to an end. In September 2003 the CIA rendition and detention programme underwent another overhaul analogous to the one which had taken place in December 2002 when Mr Nashiri and Mr Zubaydah were transferred from Thailand to Poland. On this occasion, the CIA executed a rendition circuit which entailed visiting no fewer than five secret detention sites at which CIA detainees were held. These included, in sequence, Szymany in Poland, Bucharest in Romania, Rabat in Morocco and Guantánamo Bay, a secret CIA compartment of Guantánamo Bay, having initially commenced in Kabul, Afghanistan. On this particular flight route, it has been found that all of the detainees who remained in Poland at that date were transferred out of Poland and deposited into the successive detention facilities at the onward destinations: Bucharest, Rabat and Guantánamo. Among those persons was one of the applicants today, Mr Zubaydah, who was taken on that date from Poland to Guantánamo Bay. This particular flight circuit was again disguised by dummy flight planning although significantly not in respect of Poland. It was the sole official declaration of Szymany as a destination in the course of all the CIA ’ s flights into Poland. The reason therefor being that no detainee was being dropped off in Szymany on the night of 22 September and the methodology of disguising flight planning pertained primarily to those renditions which dropped a detainee off at the destination. Since this visit to Szymany was comprised solely of a pick-up of the remaining detainees, the CIA declared Szymany as a destination openly and instead disguised its onward destinations of Bucharest and Rabat, hence demonstrating that the methodology of disguised flight planning continued for the second European site in Bucharest, Romania and indeed for other detention sites situated elsewhere in the world. ” 113. The Romanian Civil Aeronautical Authority ( Autoritatea Aeronautică Civilă Română – “ RCAA ” ), in its letter of 29 July 2009 ( “ RCAA letter ” ) stated that N313P ’ s itinerary was: Szczytno Airport (which is located in Szymany, Poland ) – Constanţa Airport but the airport in Romania at which it landed was Băneasa Airport in Bucharest (see also paragraph 324 below). 114. The 2014 US Senate Committee Report, in the section entitled “ US Supreme Court Action in the case of Rasul v. Bush Forces transfer of CIA detainees from Guantánamo to Bay to Country [name blackened] ” (see also paragraph 61 above ), states: “ Beginning in September 2003, the CIA held a number of detainees at CIA facilities on the grounds of, but separate from, the U.S. military detention facilities at Guantánamo Bay, Cuba. In early January 2004, the CIA and the Department of Justice began discussing the possibility that a pending U.S. Supreme Court case Rasul v. Bush, might grant habeas corpus rights to the five CIA detainees then being held at a CIA detention facility at Guantánamo Bay. Shortly after these discussions, CIA officers approached the [ REDACTED ] in Country [ REDACTED ] to determine if it would again be willing to host these CIA detainees, who would remain in CIA custody within an already existing Country [ REDACTED ] facility. By January [day REDACTED ] 2004, the [ REDACTED ] in Country [ REDACTED ] had agreed to this arrangement for a limited period of time. Meanwhile, CIA General Counsel Scott Muller asked the Department of Justice, the National Security Council, and the White House Counsel for advice on whether the five CIA detainees being held at Guantánamo Bay should remain in Guantánamo Bay or be moved pending the Supreme Court ’ s decision. After consultation with the U.S. solicitor general in February 2004, the Department of Justice recommended that the CIA move four detainees out of a CIA detention facility at Guantánamo Bay pending the Supreme Court ’ s resolution of the case. The Department of Justice concluded that a fifth detainee, Ibn Shaykh al-Libi, did not need to be transferred because he had originally been detained under military authority and had been declared to the ICRC. Nonetheless, by April [ redacted two-digit number] 2004, all five CIA detainees were transferred from Guantánamo Bay to other CIA detention facilities. ” C. The applicant ’ s alleged secret detention at a CIA “ black site ” in Romania from 12 April 2004 to 6 October or 5 November 2005 as described by the applicant, reconstructed on the basis of the 2014 US Senate Committee Report and other documents and as corroborated by experts heard by the Court 1. The applicant ’ s initial submissions 115. In his application lodged on 1 June 2012 the applicant submitted that sometime between 6 June 2003 and 6 September 2006 Romania had hosted a secret CIA prison, codenamed “ Bright Light ” and located in Bucharest. The applicant ’ s rendition and secret detention were related as follows: “ Mr Al Nashiri was captured in Dubai in the United Arab Emirates in October 20 02. By November 2002, he had been secretly transferred to the custody of the CIA. He was held in various secret locations before being detained in Romania. US agents first took him to a secret CIA prison in Afghanistan known as the ‘ Salt Pit ’. In Afghanistan, interrogators subjected him to ‘ prolonged stress standing positions ’, during which his wrists were ‘ shackled to a bar or hook in the ceiling above the head ’ for ‘ at least two days ’. US agents then took him to another secret CIA prison in Thailand, where he remained until 5 December 2002. According to a United Nations Report, on 5 December 2002, the CIA transported Mr Al Nashiri on a chartered flight with tail number N63MU from Bangkok to a secret CIA detention site in Poland. On or about 6 June 2003, Polish authorities assisted the CIA in secretly transferring Mr. al Nashiri from Poland. ... After his transfer out of Poland, between 6 June 2003 and 6 September 2006 Mr Al Nashiri was held in various secret detention facilities abroad, including a CIA prison in Bucharest, Romania. He was transferred to Guantánamo Bay by 6 September 2006. ” As for the possible date of his rendition to Romania during the period between 6 June 2003 and 6 September 2006 the applicant mentioned 22 September 2003, i.e. the date on which the aircraft N313P executed its “ final rendition circuit ” through Poland, via Romania and Morocco (see paragraph 1 15 above). In that regard, he referred to the 2007 Marty Report (see also paragraphs 257 -26 5 below), which had identified N313P as a “ rendition plane ” and which, according to the flight plans of 22 September 2003 and the Romanian officials, had had as its destination Constanţa and Bucharest. 116. In further observations filed by the applicant ’ s representatives on 26 April 20 1 3, it was stated that he had been transferred to a CIA “ black site ” in Romania on the plane N85VM from Guantánamo Bay to Bucharest on 12 April 2004. It was explained that that fact had emerged from a dossier submitted by Mr Hammarberg, the former Council of Europe ’ s Commissioner for Human Rights, to the Prosecutor General of Romania (see also paragraphs 334-336 below). The dossier and new information about the applicant ’ s transfers in CIA custody had not been publicly available earlier. 2. The applicant ’ s alleged rendition to Romania on the plane N85VM on 12 April 2004 117. The above-mentioned dossier produced by Mr Hammarberg states that on 12 April 2004 the applicant was transferred to the CIA “ black site ” in Romania on the N85VM flight from Guantánamo Bay to Bucharest. It further states that N85VM landed at 21h47m GMT on the night of 12 April 2004 and was assessed to have been bringing in CIA detainee(s) from the US Naval Base, Guantánamo Bay via a technical stopover in Tenerife, with a false – “ dummy ” – flight plan filed featuring Constanţa instead of its real destination, which was Bucharest (see paragraphs 33 4-336 below). 118. The Romanian Government submitted a set of six documents originating from the Romanian Airport Services ( “ RAS ” ) at Băneasa – Bucharest City Airport, described as “ annex no. 8 ” to the 200 7 Romanian Senate Report ( see also paragraph 164 below), which were examined in the course of the Parliamentary inquiry in Romania. They initially asked that that the annex be treated as confidential. At the fact-finding hearing, the Government submitted that they no longer wished the Court to maintain its confidentiality (see paragraph 12 above). The first document, invoice no. 386 dated 13 April 2004, was issued by the handling agent of the RAS for Richmor Aviation and indicated an amount charged of 1,255.00 euros (EUR) due for ground services (basic handling, landing fee, lighting fee and navigation services) relating to the N85 VM landing. The second document, ground handling note no. 0036904 dated 12 April 2004 indicated the same amount. The third document was a copy of an Air Routing card issued for Richmor Aviation. The fourth document, air navigation services sheet no. 906 dated 12 April 2004 included navigation services charges. It indicated that N85VM landed at Băneasa Airport at 21h50m on 12 April 2004 and departed at 22h45m on the same day. The fifth document was a partly illegible table containing landing fees for several planes, including N85VM. The sixth document – a control list of navigation records indicated, among other things, the N85VM landing on 12 April 2004 at 21h47m. 119. In the course of the PowerPoint presentation Mr J.G.S. testified as follows: “ ... [T]he transfer date of Al Nashiri to Romania was 12 April 2004. Our investigations have provided evidence that this transfer took place directly from Guantánamo Bay to the ‘ black site ’ in Bucharest, Romania. Again, the [US] Senate Committee Report, albeit using code names, coloured code names for the sites in question, describes explicitly where particular detainees were at particular times, and in this passage highlighted, in describing the closure of the Guantánamo Bay facility in the face of probable exposure due to a Supreme Court assessment of the legality of their detention, it states that ‘ by a date in April 2004, all five CIA detainees were transferred from Guantánamo Bay to other CIA detention facilities ’. The use of ‘ facilities ’ here in the plural is very important, because the principal destination for those held by the CIA at Guantánamo was in fact back to the facility in Morocco from whence they had come. However, as the Senate inquiry made clear, not all of those held at Guantánamo went back to Morocco, and indeed the date cited here, 12 April 2004, coincides with the flight of N85VM aircraft from Guantánamo to Băneasa, Bucharest, in Romania. This is the flight circuit, again it is backed up by a tranche of documentary evidence which I am prepared to provide to the Court, and in particular this graphic demonstrates that there were two distinct transfers out of Guantánamo. The first on 27 March 2004 carried detainees from Guantánamo back to Rabat, Morocco. The second of these, which is of our principal interest, transported one or more detainees, among them Al Nashiri, via a stopover in Tenerife onto Romania. I have put together a graphic to illustrate that, once again, the CIA had recourse to its systematic practice of disguised flight planning in respect of this flight. We reached a point in our investigations, Madam President, where evidence of dummy flight planning in fact became a tell-tale sign of rendition or detainee transfer activity on such flights. So it is significant, as I will demonstrate, that this was not a simple circuit. The aircraft embarked from Washington and flew to Guantánamo Bay, whereupon the blue line demonstrates the first part of the detainee transfer from Guantánamo to Tenerife, a flight planned and executed. From Tenerife, however, the aviation services provider, in this case Air Rutter International from Houston, Texas, filed a dummy flight plan to the alternative Romanian destination of Constanţa, on the Black Sea Coast. The aircraft, however, flew and landed at Bucharest Băneasa Airport, as documentation from the Romanian authorities demonstrates. It is this flight, depicted here with the blue line, that carried Al Nashiri to detention in Bucharest. From Bucharest, the aircraft flew back to Rabat, Morocco, and it is apparent premise that one or more detainees from the Romanian site, detained prior to April 2004, was at that point taken from Bucharest back to detention in Morocco, after which the aircraft returned to its base at Washington D. C. We have been able to uncover this and other flights planned through the network of private contractors, thanks to a large amount of documentation filed in court proceedings in civil courts in New York State, whereupon several US aviation service providers, contracted to the CIA, ended up in a financial dispute. The case in question, Sportsflight Inc. against [ sic ] Richmor Aviation, in fact concerns the CIA ’ s chief aviation contractor, Computer Sciences Corporation, formerly DynCorp, its use of a prime aviation contractor known as Sportsflight Air, previously Capital Aviation, which in turn subcontracted its government mandates to a private company called Richmor Aviation, who were the owners and operators of the aircraft N85VM. I appreciate that this web of corporate relations is quite difficult to understand on its face, but over several years, myself and other investigators have carefully unpicked these relationships to provide the direct link between the tasking of the United States Government on government contracts through the CIA ’ s rendition group air branch, all the way down to the pilots, crew members and operators of the aircraft in question. It is unambiguously and categorically the case that these are rendition aircraft, operated for the sole purpose of transferring detainees between ‘ black sites ’ in the CIA ’ s RDI programme. The flight of N85VM, on the dates in question, belongs in that category. ” 120. As regards the circumstances surrounding the applicant ’ s transfer from Guantánamo to Romania, Mr J.G.S. testified at the fact-finding hearing as follows : “ The Guantánamo site operated only for a finite period. As I mentioned, it was due to the judicial scrutiny of the Supreme Court with a case pending in Rasul v. Bush, which was likely to expose CIA detainees to the same reporting obligations, but also the same rights, that detainees in other forms of federal custody would enjoy, and so the CIA deliberately took action to remove its detainees from such scrutiny in advance of the Supreme Court ruling. The Senate Committee Report describes this process, based upon cables and other classified material, and states that by April 2004, the date I assert, 12 April 2004, all of those detainees who were held in Guantánamo were moved out. There were two flights, as I demonstrated, which formed part of this removal process, the first on 27 March 2004, the second on 12 April 2004. But the first of those only went to Rabat, Morocco, and if you recall, the Committee described, based upon its assessment of interrogation schedules, that Mr Nashiri had been to five different sites in that 3-year timeframe, and in order for him to be in five different sites, he, at that moment, could not have gone back to Morocco, because there are not sufficient documented instances of rendition which link the territories in question, Guantánamo, Rabat and Bucharest, in the timeframe in which the report confirms Mr Nashiri ’ s tour of the sites. The 12th April 2004 site was the sole outward flight linking Guantánamo to Romania. From the report, from the cables regarding Mr Nashiri ’ s treatment and physical and psychological state, we know that he found himself in Romania in the 3rd quarter and 4th quarter of 2004, and in July 2005, there were specific notes made upon his state and status in those date frames. In order for him to have been in Romania at Detention Site Black or ‘ Britelite ’ by that time, he had to be brought to Romania on flight N85VM on 12 April 2004. It is a process of elimination, but it is also a process of correlation, which very clearly links to documents filed by contractors, corresponds with the international aviation data that we have analysed, corresponds with the tactics of dummy flight planning and disguise, and ultimately is validated in the public record by the Senate Report. ” 121. Mr Black, referring to the applicant ’ s alleged rendition to Romania testified as follows: “ I am aware of two possible flights that could have taken the applicant Al Nashiri into Romania, that [a flight with the tail number N8 5 VM], is one of them. There is a potential other one that occurred in February 2005. We know for a fact that he was in Romania after February 2005, we know from cables referenced in the Senate Report that he was in Romania in June 2005. There are indications that he was held in Romania before that, in late 2004, which leads me, of the two possibilities, that leads me to prefer the April 2004 flight as being the more likely of the two. In terms of my own research, I would say that there is a small ambiguity on that point, I am not prepared to say that the data I have at my fingertips conclusively demonstrates that he was taken on the April flight in 2004 rather than the February one in 2005. I think the balance of probability does lie in favour of that. However, whichever of the two it is, there is no doubt that he was in Romania by the summer of 2005. ” 3. Detention and treatment to which the applicant was subjected 122. The applicant submitted that throughout his detention by the CIA he had been subjected to torture and other forms of ill-treatment prohibited by Article 3 of the Convention. 123. On 15 June 2016 the US authorities disclosed to the public a second, less redacted version of the transcript of the hearing held by the Combatant Status Review Tribunal in Guantánamo on 14 March 2007 (for the first, more extensively redacted version see Al Nashiri v. Poland, cited above, §§ 112-113; see also paragraphs 14 2 -14 3 below ). During that hearing the applicant described the treatment to which he had been subjected in CIA custody from his capture in November 2002 to his transfer to Guantánamo in September 2006. The relevant part of that transcript read, as follows: “ From the time I was arrested five years ago, they have been torturing me. It happened during interviews. One time they tortured me one way and another time they tortured me in a different way. By hanging, head was up and legs were pointing downwards. I was hung for almost a month. You doing your things basically and you were hung upside down and drowning and hitting at the wall. There are many scars on my head if I shave my head. If I shave my hair the scars will become obvious. What else do I want to say? I was without clothes. I was sleeping on the floor for about a month. Many things happened. There were doing so many things. What else did they did? There a box half meter by half meter. It was two meters in height They used to put me inside the box. I was standing in that box for about a week and I couldn ’ t do anything. My feet were swollen. My nails were about fall off because, I was standing on my feet for long time. They do so many things. So so many things. What else did they did? That thing lasted for about six month [s]. After that another method of torture began. They use to put something in the food that use to make the body tired. Before I was arrested I used to be able to run about ten kilometers. Now, I cannot walk for more than ten minutes. My nerves are swollen in my body. Swollen too. They used to ask me questions and the investigator after that used to laugh. And, I used to answer the answer that I knew. And, if I didn ’ t reply what I heard, he used to put something in my food. And, after I ate it my body felt like, um, strange. After that he used to come back and talk to me. He told you he put anything in the food. He used to deny that but the camera was behind him. And; I would stand in front of the camera and he used to tell you that because camera was on. He could not deny anything. You have to acknowledge to what we are saying. And, I used to say acknowledge what? They used to ask even political questions. One is the solution to the American problem in Iraq. I ’ m not the American Foreign Minister to answer these questions. So they used to go and put some stuff in my food. These things happen for more than two years. That thing did not stop until here. So many things happened. I don ’ t in summary, that ’ s basically what happened. Then, the President of the Combatant Status Review Tribunal says: Alright. Let me ask. So then since the time of capture 2002 until you came to Guantánamo you experienced these types of events? The applicant responds: Yes. ” 124. At the fact-finding hearing Mr J.G.S. made the following statements concerning the treatment to which the applicant could be subjected during his alleged detention in Romania: “ I find myself somewhat more limited in my ability to describe specific forms of treatment or interrogation techniques to which Mr Nashiri was subjected in Romania than was the case in respect of Poland. And that is because of the natural evolution of the detention cycles to which CIA detainees were subjected. In pursuit of what was described as ‘ live actionable intelligence ’, the CIA developed its most stringent, harsh interrogation plans for the earliest days and weeks of a detainee ’ s period in its detention system. Usually, within one to three days of being apprehended, the chief of base at the ‘ black site ’ in question would appeal to CIA headquarters for authorisation to practise EITs, so called ‘ enhanced interrogation techniques ’. This was the case in respect of Abu Zubaydah, this was the case in respect of Al Nashiri, this was the case in respect of Khalid Sheikh Mohammed, this we know because of the Inspector General ’ s reports. As soon as a detainee was in custody, in Abu Zubaydah ’ s case, was fit enough to undergo interrogation, that plan would commence. We know that Al Nashiri underwent twelve days of harsh interrogation in Thailand including the waterboard, and we know that upon transfer to Poland, because he was assessed as having withheld information or not been compliant, he was then subjected to an intensive period of harsh interrogation during with multiple, unauthorised techniques were used. Those were documented in the earlier proceedings [ Al Nashiri v. Poland ]. But there arrives a juncture in a CIA detainee ’ s detention at which his intelligence value is assessed as lower, at which no further approval or authorisation is sought or granted to practise these enhanced interrogation techniques, and in Al Nashiri ’ s case we can only say that that point arrived sometime in 2003. Thereafter, it is, in my assessment and according to the documentary record, unlikely that the CIA practised further unauthorised techniques or indeed concerted programmes of enhanced interrogation on Mr Nashiri. However, that is not to say that he was not subjected to abuse or indeed that the conditions of his confinement did not amount to violations of the European Convention. In respect of those two latter points, I would aver quite clearly that the treatment did amount to violations of the Convention, purely by virtue of the conditions in which he was held and because of the regular interventions made by persons at the ‘ black site ’ to gratuitously abuse, punitively or otherwise, certain detainees in their custody. I can give you analogous examples of how detainees were treated in Romania. Hassan Ghul, for example: there is a lengthy description of his having endured 59 hours of sleep deprivation, having been shaved and barbered, stripped naked, placed in standing positions with his hands above his head. There are descriptions of how, notwithstanding medical and psychological problems diagnosed by professionals at the scene, he was subjected to further interrogation to the point of enduring hallucinations. I could also cite the example of Janat Gul, a detainee for whom the CIA sought authorisation to use the waterboard in Romania, an unprecedented move, and who was subsequently subjected to an intensive period of enhanced interrogation in the same site at which Al Nashiri was held. I could also cite the case of Abu Faraj al-Libi who was captured in 2005 and even at that point, three years and more into the programme, was subjected to the same litany of abusive techniques in interrogating him as Al Nashiri and others had been subjected to in 2002 and 2003. And I could also cite, too, some memoranda produced by the CIA General Counsel ’ s office in the material period in which Al Nashiri was held in Romania, which described conditions of confinement, sensory deprivation as a matter of routine, denial of religious rights, physical and psychological oppression, sleep deprivation as a matter of course, notwithstanding whether a detainee is subject at that time, or not, to EITs. So whilst I cannot give the same level of specificity as I was able to present in respect of Poland, I can aver with a high level of certainty that he endured ill-treatment whilst held in Romania because, in my view, every one of those detainees brought to Romania, held incommunicado, indefinitely, with no idea of their whereabouts or their fate, subjected to frequent renditions, shackled, drugged, often beaten in the process, every one of those persons would have a legitimate claim under our European Convention on Human Rights for violation of their personal integrity. ” 125. Mr Black testified as follows: “ The question of precise types of treatment is, I would not say it is my specific expertise. It is clear from the Senate Report and other sources that treatment in Romania included very extreme sleep deprivation, which apparently led some of those who suffered it to have very severe mental and physical problems, and it is clear also that the applicant, Mr Nashiri, in particular when he was in Romania, was experiencing serious, let ’ s say, psychological problems as a result of the treatment that he had received. But my, and I should say also it is clear that around that time, between 2003 and 2005, it is firmly on the record that there were a range of treatments being applied to these people, that the enhanced interrogation techniques were being applied, I think this has all been quite well documented, but it is not really my topic of expertise, I would not say. ” 126. Citing as a source two CIA cables of 23 May 2004, the 2014 US Senate Committee Report states that “ at one point Al Nashiri launched a short-lived hunger strike that resulted in the CIA feeding him rectally ” (see also paragraph 15 8 below). Referring to an email to Detention Site Black dated 30 October 2004 on the subject “ Interrogator Assessments/Request for Endgame Views ”, the report states that “ an October 2004 psychological assessment of Al Nashiri was used by the CIA to advance its discussions with National Security Council officials on establishing an “ endgame ” for the [HVD] program ” 127. The 2014 US Senate Committee Report further refers to the applicant ’ s detention at Detention Site Black in June and July 2005 as follows : “ In the final years of al-Nashiri ’ s detention, most of the intelligence requirements for al-Nashiri involved showing al-Nashiri photographs. In June 2005, the DETENTION SITE BLACK chief of Base suspended even these debriefings because it was ‘ the very, very rare moment ’ that al-Nashiri would recognize a photograph, and because the debriefings often were the ‘ catalyst ’ for his outbursts. ” It also states, with reference to a cable of 5 July 2005, that in July 2005 CIA Headquarters expressed concern regarding Al Nashiri ’ s “ continued state of depression and uncooperative attitude ”. Days later a CIA psychologist assessed that the applicant was on the “ verge of a breakdown ” (see also paragraph 158 below). 4. The applicant ’ s alleged rendition from Romania on 6 October or 5 November 2005 128. In his initial submissions the applicant submitted that no later than 6 September 2006 the Romanian authorities had assisted the CIA in secretly transferring him from Bucharest to another CIA “ black site ”. 129. The experts gave two possible dates for the applicant ’ s rendition from Romania: 6 October 2005 and 5 November 2005. According to them, the latter date was the final closure of the CIA “ black site ” on Romania ’ s territory, prompted by the publication of Dana Priest ’ s article “ CIA Holds Terror Suspects in Secret Prisons ” suggesting that such prisons operated in Eastern European countries on 2 November 2005 ( see also paragraph 23 6 below). 130. In the course of the PowerPoint presentation Mr J.G.S. testified as follows: “ In terms of [the Black Site in Romania ’ s] closure, it is stated in the [2014 US Senate Committee Report] that after the publication of the Washington Post article, that is the piece of reporting, the Pulitzer Prize-winning article by Dana Priest, ... dated 2 November 2005, the authorities of this country demanded the closure of Detention Site Black within a number of hours fewer than 100. We can see that from the redaction, it does not state exactly how many hours, but it is no more than four days. And in fact, as I described, 5 November 2005, using its practices of dummy flight planning and a further disguise which I will demonstrate shortly, the CIA transferred all of its remaining CIA detainees out of the facility within this time period. Again, as stated, flights into and out of Romania correspond exactly with the narrative described in the report. It might be pointed out, in relation to this specific package, that in order for the authorities of the host country to demand the closure of a detention facility, they must have known of its existence. Furthermore, in light of the report in The Washington Post, which went into intimate detail of the CIA ’ s operations including the forms of ill-treatment and interrogation to which detainees therein were subjected, it follows that the authorities of the host country of Detention Site Black – and let me be clear – that is the authorities of Romania, must have known of the nature of operations occurring on their territory. The question has often been posed to us, Honourable Judges, if there were detainees in Romania, how did they leave? There appeared to be no obvious direct flights out of Romania in the critical period, October, November 2005, to any other detention site we were aware of, and this was often put forward by representatives of the Romanian authorities as a reason for decrying, for rejecting, for refuting the content of our reporting [i.e. at the time of the publication of the 2006 and the 2007 Marty Reports]. We have, however, now ascertained how detainees were removed from Romania, and this occurred in two tranches in the months of October 2005 and, as stated, November 2005. I have chosen to illustrate the first of these transfers, which occurred between 5 and 6 of October 2005, because it provides a further segue into detention operations on the territory of another Council of Europe Member State, in this case Lithuania. The CIA used two tactics of deceit in order to provide these flights with the maximum degree of cover, in order that they could not and would not be tracked, traced or held to account. The first of those was its conventional dummy flight planning, but the second of those was a novel tactic involving switching of aircraft. This graphic will demonstrate how this was deployed on 5 and 6 October 2005, involving two aircraft, namely N3 08 AB and N787WH. The first of those aircraft is depicted by red lines, the second by blue, on the graphic, the other symbols follow the earlier pattern of drop-off, transfer and stopover points. The two planes arrived in Europe, the first [N3 08 AB] from provenance of Teterboro, New Jersey, the second [N787WH] from provenance of Keflavik in Iceland on 5 October 2005. While the first flew to Bratislava, in Slovakia, the second flew directly to Tirana, Albania, which would become the staging point for these operations. The first dummy flight plan, filed by the CIA ’ s aviation services provider, stated a path for N3 08 AB from Bratislava to Constanţa airport, a route which it did not, nor did it intend, to fly. The aircraft instead flew directly to Bucharest Băneasa airport, the servicing airport for the ‘ black site ’ in Romania, whereupon it would collect detainees. Those detainees referred to in the Senate Committee Report who were cleared from Romania in these critical months were then taken from Bucharest to Tirana, to the staging point where the other CIA aircraft had been waiting for a day in advance. In this staging point, in an unprecedented manoeuvre, according to our investigations, detainees were transferred from the first aircraft onto the second, together with members of the CIA rendition crew. The second aircraft, N787WH, which is also a Boeing 737 business jet, used conventionally for wholesale transfers filed its own dummy flight plan, citing a destination of Tallinn, Estonia, a route which it did not, nor did it intend, to fly. Instead, this aircraft N787WH flew on 6 October 2005 carrying detainees from Romania to Vilnius, Lithuania, thereby providing a link between two detention sites on European territory. The aircraft then departed in their own respective directions, the rendition aircraft N787WH via Oslo, towards the north, and the first aircraft, N3 08 AB from Tirana, via Shannon, back towards New Jersey. Therein the CIA had innovated yet another means, another layer of cover to obstruct proper accounting for the illegal transfer of its detainees, but due to a process which Senator Marty referred to as ‘ la dynamique de la vérité ’, we have been able, methodically and carefully, to unpick these layers of secrecy and present to this Court what we believe is a truthful and accurate accounting of operations in respect of these ‘ black sites ’. ” 131. In his further testimony, in response to questions from the Court, Mr J.G.S. added: “ There are two known and documented junctures at which CIA detainees at the ‘ black site ’ in Romania were removed from Romania. The first of those, I illustrated with my last set of graphics, on 5 and 6 October, which took detainees from Bucharest, Romania via switching of aircraft in Albania, to Vilnius, Lithuania. The second took place on 5 November 2005, within three to four days of the Washington Post ’ s report, and at the insistence of the Romanian authorities, which took detainees via Amman, Jordan to Kabul, Afghanistan. We know that at 1 January 2006 there were only two CIA detention sites in active operation, that much is stated in the Senate Report. Those were the sites known as ‘ Violet ’ and ‘ Orange ’ : the former, ‘ Violet ’, in Lithuania, the latter, ‘ Orange ’, in Afghanistan. And so Al Nashiri, in all likelihood and without any other information to refer to, was taken to one of those two destinations on one of those two flights. Based upon my earlier rationale about the five different facilities in which he was held, I would aver that it is more likely than not that he was taken from Romania to Lithuania on 5 and 6 October 2005 and was held there until onwards transfer in March 2006 to Afghanistan and subsequently on to Guantánamo Bay. That would, logically, complete the number and nature of detention experiences chronicled in the Senate Committee Report and other documents released by the United States. ” 132. Mr Black testified as follows: “ ... [T]here are two possibilities, and I believe only two possibilities: one is that [the applicant] left [Romania] in October 2005, on 5 October 2005, and the other is that he left on the 5 November 2005. If the flight on 5 October 2005 was a dual flight, it was a kind of a two-plane switch that took prisoners from Romania into Lithuania, and the flight the following month in November 2005 was again a two-plane switch that took prisoners from Romania into Afghanistan. I think there is an indication in the data that we have, based on the Senate Report, that Mr Nashiri was taken to Lithuania, which should mean he was taken in October rather than November, but it is, I would not say it is a hundred per cent clear, unambiguous. I would say it is an indication that seems probable. There is no doubt that the flight in November signalled the end of the Romanian site, I mean it came, I do not know, 72 hours after the existence of the site had been revealed in The Washington Post, the government had demanded the site shut down, the Senate Report is very clear that at that point everyone who was remaining in Romania was shipped out to Afghanistan, so at that point, after the 5 November 2005, the CIA ‘ black site ’ programme was operating only in Lithuania and in Afghanistan. ” 133. The relevant section in the 2014 US Senate Committee Report reads as follows: “ After publication of the Washington Post article, [ REDACTED ] Country [ REDACTED ] demanded closure of DETENTION SITE BLACK within [two-digit number REDACTED ] hours. The CIA transferred the [number REDACTED ] remaining CIA detainees out of the facility shortly thereafter. ” 134. According to public Eurocontrol flight data based on, among other things, the flight data entered by the Romanian authorities into the Eurocontrol system, which was referred to by Mr J.G.S and Mr Black, the flight circuit of October 2005 involving planes N308AB and N787WH and the circuit of November 2005 involving planes N1HC and N248AB can be described as follows. 135. As regards the circuit of 1-7 October 2005, executed by planes N308AB and N787WH: (a) Eurocontrol data shows N308AB filing a flight plan departing from Teterboro, USA at 13:31 on 4 October 2005 with scheduled arrival time at Bratislava, Slovakia at 22:58 the same day. On the following day it filed a flight plan departing from Bratislava at 19:06 with scheduled arrival time at Mihail Kogălniceanu International Airport, Constanţa, Romania at 20:41. It then filed a plan departing 40 minutes later, at 21:21, from Băneasa Bucharest City Airport. According to the experts, this indicated that the scheduled trip to Constanţa was in fact a false flight plan, and that the plane did not go to Constanţa, but rather to Băneasa. Leaving Băneasa it was scheduled to arrive in Tirana, Albania at 22:38. It filed its next flight plan from Tirana on 6 October at 01:08, with a scheduled arrival time in Shannon, Ireland, at 04:22 (all times are Zulu (i.e. GMT) ). (b) Eurocontrol data shows that on 5 October 2005 at 00:45 N787WH filed a flight plan departing from Keflavik, Iceland with scheduled arrival in Tirana International Airport on the same day at 05:52. It then filed a flight plan departing Tirana at 23:44 with scheduled arrival at Tallinn, Estonia the following day at 02:26. It then filed a flight plan leaving 30 minutes later, at 02:56, not from Tallinn but from Vilnius International Airport, Lithuania, with scheduled arrival in Oslo at 04:33 (all times are Zulu (GMT) ). Documents from Vilnius airport show that the plane landed in Vilnius at 01:54 Zulu / 04:54 local time, however, indicating that the scheduled trip to Tallinn was in fact a false flight plan, and that the plane did not go to Tallinn, but rather directly from Tirana to Vilnius (see also Abu Zubaydah v. Lithuania, no. 46454/11, § 130, 31 May 2018). As regards the circuit of 5-7 November 2005, executed by planes N1HC and N248AB: (a) Eurocontrol data shows that N1HC filed a flight plan to leave Harrisburg International Airport, USA at 10:30 on 5 November 2005, with scheduled arrival in Porto, Portugal at 16:58 the same day. It then filed a flight plan to leave Porto at 17:59, with scheduled arrival at Mihail Kogălniceanu International Airport, Constanţa, Romania at 21:45. Its next flight plan shows it leaving Băneasa Bucharest City Airport 20 minutes later, at 22:05, with scheduled arrival at Amman, Jordan that night at 00:21 on 6 November. This, according to the experts, indicated that the scheduled trip to Constanţa was in fact a false flight plan, and that the plane did not go to Constanţa, but rather to Băneasa. From Jordan it filed a flight plan to depart Amman at 01:20 with arrival at Keflavik scheduled at 08:25. (b) Eurocontrol data shows that N248AB filed a flight plan to leave Malta International Airport on 5 November 2005 at 21:10 with scheduled arrival in Amman at 23:49. It then filed a flight plan to leave Amman 66 minutes later, at 00:55 on 6 November, with arrival in Kabul scheduled for 05:12. It filed a flight plan to leave Kabul 48 minutes later, at 06:00, with arrival in Athens scheduled at 11:32 the same day. 136. The findings of the Lithuanian Parliament ( Seimas ) made in the course of an inquiry concerning the alleged detention facilities in Lithuania in 2010 -2011 concerned, among other things, the flight N787WH landing in Vilnius, en route from Tirana, on 6 October 2005 (see paragraph 33 2 below) 137. The list of 43 flights operated in 2001-2005 at the airports of Constanţa, Băneasa and Otopeni submitted by the Government (annex no. 11 to the 2007 Romanian Senate Report; see also paragraph 167 below) included that of N1HC, which departed from Băneasa airport on 5 November 2005. 138. The list of twenty one “ suspicious flights ”, which was produced by the Government, included N1HC executing a circuit “ Harrisburg –București Băneasa-Djibouti-Amman ” that departed from Băneasa Airport on 5 November 2005 (see paragraph 327 below). The invoice (no. 1692) for United States Aviation in respect of N1HC issued by RAS on 6 November 2005 included a handwritten note: “ Middletown-Băneasa-Djibouti (?) (Amman?) ” D. The applicant ’ s further transfers during CIA custody (until 5 September 2006 ) as reconstructed on the basis of the 2014 US Senate Committee Report and other documents and as corroborated by experts heard by the Court 139. According the 2014 US Senate Committee Report, in “ early January 2006 ” the CIA was holding twenty-six detainees “ in its two remaining facilities, Detention Site Violet, in Country [ name REDACTED ] and Detention Site Orange, in Country [name REDACTED ] ”. The applicant, according to the experts, was taken to one of those sites – Detention Site Violet located in Lithuania or Detention Site Orange located in Afghanistan on one of the above-described plane-switching flights circuits of, respectively, 1-7 October 2005 and 5-7 November 2005 (see paragraphs 129-135 above). 140. The 2014 US Senate Committee Report states that the applicant “ was transferred to US military custody on September 5, 2006. ” E. The applicant ’ s detention in Guantánamo Bay and his trial before the military commission from 6 September 2006 to present 141. On 6 September 2006 President Bush publicly acknowledged that fourteen high-value detainees, including the applicant, had been transferred from the HVD Programme run by the CIA to the custody of the Department of Defense in the Guantánamo Bay Internment Facility (see also paragraph 60 above). 1. Hearing before the Combatant Status Review Tribunal 142. On 14 March 2007 the applicant was heard by the Combatant Status Review Tribunal, which purported to review all the information related to the question whether he met the criteria to be designated as an “ enemy combatant ” (i.e. an individual who was part of or supporting Taliban or al-Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners, including one who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces). The hearing was closed to the public. The applicant was not afforded legal counsel at this hearing. A “ personal representative ” was appointed for him, but this person did not act as counsel and the applicant ’ s statements to this representative were not privileged. He did not have access to any classified evidence that was introduced against him. Nor did he have the right to confront any of the accusations that were introduced at this hearing. 143. According to a partially redacted transcript of that hearing, the applicant stated that he “ [had been] tortured into confession and once he [had] made a confession his captors [had been] happy and they [had] stopped torturing him ”. He also stated that he had made up stories during the torture in order to get it to stop (see also paragraph 1 2 3 above). 2. Trial before the military commission 144. On 30 June 2008, the US Government brought charges against the applicant for trial before a military commission, including those relating to the bombing of the USS Cole on 12 October 2000. 145. On 2 October 2008, counsel for the applicant filed a petition for a writ of habeas corpus on his behalf in a federal district court of the District of Columbia. That petition is apparently still pending to date with no decision. 146. On 19 December 2008, the Convening Authority authorised the Government to seek the death penalty at his military commission. 147. Immediately after the referral of charges, the defence filed a motion with the military commission contesting the Government ’ s method of transporting the applicant to legal proceedings in Guantánamo Bay on the grounds that it was harmful to his health and violated his right to free and unhindered access to his counsel. 148. Shortly after this motion was filed, the applicant ’ s arraignment –which signified the start of his trial before a military commission – was set for 9 February 2009. 149. On 22 January 2009 President Obama issued an Executive Order requiring that all commission proceedings be halted pending the Administration ’ s review of all detentions at Guantánamo Bay. In response to this order, the Government requested a 120-day postponement for the 9 February 2009 arraignment. 150. On 25 January 2009 the military judge assigned to the applicant ’ s military commission denied the Government ’ s request for postponement of the trial. Moreover, the military judge ordered that a hearing on the defence motion regarding the applicant ’ s transportation be held immediately after the arraignment. In response to this order, the defence filed a notice that it intended to introduce evidence of how he was treated while in CIA custody. Hours after this notice was filed, on 5 February 2009, the US Government officially withdrew charges from the military commission, thus removing the applicant ’ s case from the military judge ’ s jurisdiction. 151. In March 2011 President Obama announced that he would be lifting a 2-year freeze on new military trials for detainees at the US Naval Base in Guantánamo Bay. 152. On 20 April 2011 United States military commission prosecutors brought capital charges against the applicant relating to his alleged role in the attack on the USS Cole in 2000 and the attack on the French civilian oil tanker MV Limburg in the Gulf of Aden in 2002. The charges against him included terrorism, attacking civilians, attacking civilian objects, intentionally causing serious bodily injury, hazarding a vessel, using treachery or perfidy, murder in violation of the law of war, attempted murder in violation of the law of war, conspiracy to commit terrorism and murder in violation of the law of war, destruction of property in violation of the law of war and attempted destruction of property in violation of the law of war. The applicant was designated for trial by military commission despite the fact that the United States Government had previously indicted two of his alleged co-conspirators for the USS Cole bombing – Jamal Ahmed Mohammed Al-Badawi and Fahd Al-Quso – in the US federal court. The relevant indictment, filed on 15 May 2003 while the applicant was secretly held in CIA custody in Poland, identified him as an unindicted со - conspirator in the USS Cole bombing. 153. The military commission prosecutors announced that the capital charges against the applicant would be forwarded for independent review to Bruce MacDonald, the “ convening authority ” for the military commissions, for a decision whether to reject the charges or to refer some, all or none of them for trial before the military commission. 154. On 27 April 2011 Mr MacDonald informed the US military defence counsel for the applicant that he would accept written submissions against the death penalty until 30 June 2011. On 28 September 2011 the capital charges against the applicant were approved. 155. The military commission hearing in the applicant ’ s case began on 17 January 2012. The first two days of the trial were devoted mostly to pre ‑ trial motions. 156. The proceedings against the applicant before the military commission are pending. According to a statement – “ Remarks at Guantánamo Bay ” issued by Chief Prosecutor Mark Martins on 17 March 2017, a day before the military commission convened to try Al Nashiri completed a pre-trial session to resolve disputes regarding “ outstanding legal and evidentiary issues ”. During the session, the Military Judge directed that the military commission would be in session from 31 July to 4 August, from 11 to 29 September and from 6 to 17 November 2017. He also announced that he planned to issue soon a final discovery order as well as a trial order for 2018. F. Psychological effects of the HVD Programme on the applicant 157. On 22 November 2013 the applicant ’ s representative produced a psychological evaluation of the applicant by US government psychiatrists, which had been conducted at the request of the US government. It states that Mr Al Nashiri suffers from Post-Traumatic Stress Syndrome. 158. In the 2014 US Senate Committee Report, in the chapter “ CIA Detainees Exhibit Psychological and Behavioral Issues ”, it is stated that psychological and behavioural problems experienced by CIA detainees, who had been held in austere conditions and in solitary confinement, had also posed “ management challenges ” for the CIA. The section referring to the applicant reads as follows: “ ... Abd al-Rahim al-Nashiri ’ s unpredictable and disruptive behavior in detention made him one of the most difficult detainees for the CIA to manage. Al-Nashiri engaged in repeated belligerent acts, including throwing his food tray, attempting to assault detention site personnel, and trying to damage items in his cell. Over a period of years, al-Nashiri accused the CIA staff of drugging or poisoning his food and complained of bodily pain and insomnia. As noted, at one point, al- Nashiri launched a short-lived hunger strike, and the CIA responded by force feeding him rectally. An October 2004 psychological assessment of al-Nashiri was used by the CIA to advance its discussions with National Security Council officials on establishing an ‘ endgame ’ for the program. In July 2005, CIA Headquarters expressed concern regarding al-Nashiri ’ s ‘ continued state of depression and uncooperative attitude ’. Days later a CIA psychologist assessed that al-Nashiri was on the ‘ verge of a breakdown ’. ” G. Identification of locations of the colour code - named CIA detention sites in the 2014 US Senate Committee Report by experts 159. The experts heard by the Court identified the locations of the eight colour code-named CIA detention sites (see paragraph 2 6 above) as follows: Detention Site Green was located in Thailand, Detention Site Cobalt in Afghanistan, Detention Site Blue in Poland, Detention Site Violet in Lithuania, Detention Site Orange in Afghanistan, Detention Site Brown in Afghanistan, Detention Site Gray in Afghanistan and Detention Site Black was identified as having been located in Romania (see also Abu Zubaydah v. Lithuania, cited above, § 16 6 ). H. “ Detention Site Black ” in the 2014 US Senate Committee Report 160. The 2014 US Senate Committee Report refers to “ Detention Site Black ” in several sections concerning various events. 161. In chapter entitled “ The CIA establishes ‘ DETENTION SITE BLACK ’ in Country [ REDACTED ] and DETENTION SITE VIOLET in Country [ REDACTED ] ” the section referring to “ Detention Site Black ” reads as follows: “ [ REDACTED ] The CIA entered into an agreement with the [ REDACTED ] in Country [ REDACTED ] to host a CIA detention facility in [month REDACTED ] 2002. In [month REDACTED ] 2003 CIA Headquarters invited the CIA Station in Country [ REDACTED ] to identify ways to support the [ REDACTED ] in Country [ REDACTED ] to ‘ demonstrate to [ REDACTED ] and the highest levels of the [Country [ REDACTED ] government that we deeply appreciate their cooperation and support ’ for the detention program. The Station responded with an $ [amount REDACTED ] million ‘ wish list ’ [ REDACTED ]; CIA Headquarters provided the Station with $ [amount REDACTED ] million more than was requested for the purposes of the [ REDACTED ] subsidy. CIA detainees were transferred to DETENTION SITE BLACK in Country [ REDACTED ] in the fall of 2003. In August 2003, the U.S. ambassador in Country [ REDACTED ] sought to contact State Department officials to ensure that the State Department was aware of the CIA detention facility and its ‘ potential impact on our policy vis-a-vis the Country [ REDACTED ] government ’. The U.S. ambassador was told by the CIA Station that this was not possible, and that no one at the State Department, including the secretary of state, was informed about the CIA detention facility in Country [ REDACTED ]. ... Nearly a year later, in May 2004, revelations about U.S. detainee abuses at the U.S. military prison in Abu Ghraib, Iraq, prompted the same U.S. ambassador in Country [ REDACTED ] to seek information on CIA detention standards and interrogation methods. In the fall of 2004, when [ REDACTED ] U.S. ambassador to Country [ REDACTED ] sought documents authorizing the program, the CIA again sought the intervention of Deputy Secretary Armitage, who once again made ‘ strong remarks ’ to the CIA about how he and the secretary of state were ‘ cut out of the NSC [National Security Council] clearance/coordination process ’ with regard to the CIA program. ... While it is unclear how the ambassador ’ s concerns were resolved, he later joined the chief of Station in making a presentation to Country [ REDACTED ] ’ s [ REDACTED ] on the CIA ’ s Detention and Interrogation Program. The presentation talking points did not describe the CIA ’ s enhanced interrogation techniques, but represented that ‘ [w]ithout the full range of these interrogation measures, we would not have succeeded in overcoming the resistance of [Khalid Shaykh Muhammad] and other equally resistant HVDs ’ The talking points included many of the same inaccurate representations made to U.S. policymakers and others, attributing to CIA detainees critical information on the ‘ Karachi Plot ’ the ‘ Heathrow Plot ’. the ‘ Second Wave Plot ’, and the ‘ Guraba Cell ’; as well as intelligence related to Issa al-Hindi, Abu Talha al-Pakistani, Hambali, Jose Padilla, Binyam Mohammed, Sajid Badat, and Jaffar al-Tayyar. ... ” 162. In chapter entitled “ CIA Detainees Exhibit Psychological and Behavioural Issues ” reference is made to an email from an American authority (name redacted) to “ Detention Site Black ”, dated 30 October 2004 on the subject: “ Interrogator Assessments/Request for Endgame Views ”, which concerned Al Nashiri ’ s psychological assessment (see also paragraph 15 8 above ), which was used by the CIA in the framework of discussions on establishing an “ endgame ” for the HVD Programme. 163. Chapter “ The Pace of CIA Operations Slows; Chief of Base Concerned About ‘ Inexperienced, Marginal, Underperforming ’ CIA Personnel; Inspector General Describes Lack of Debriefers As ‘ Ongoing Problem ’ ” refers to the “ Detention Site Black ” as follows: “ In the fall of 2004, CIA officers began considering ‘ end games ’ or the final disposition of detainees in CIA custody. ... [ REDACTED ] In 2004, CIA detainees were being held in three countries: at DETENTION SITE BLACK in Country [ REDACTED ], at the [ REDACTED ] facility in Country [ REDACTED ], as well as at detention facilities in Country [ REDACTED ]. DETENTION SITE VIOLET in Country [ REDACTED ] opened in early 2005. On April 15, 2005, the chief of Base at DETENTION SITE BLACK in Country [ REDACTED ] sent the management of RDG an email expressing his concerns about the detention site and the program in general. He commented that ‘ we have seen clear indications that various Headquarters elements are experiencing mission fatigue vis-a-vis their interaction with the program, resulting in a ‘ decline in the overall quality and level of experience of deployed personnel ’, and a decline in ‘ level and quality of requirements ’. He wrote that because of the length of time most of the CIA detainees had been in detention, ‘ [the] detainees have been all but drained of actionable intelligence ’, and their remaining value was in providing ‘ information that can be incorporated into strategic, analytical think pieces that deal with motivation, structure and goals ’. The chief of Base observed that, during the course of the year, the detention site transitioned from an intelligence production facility to a long-term detention facility, which raised ‘ a host of new challenges ’. These challenges included the need to address the ‘ natural and progressive effects of long-term solitary confinement on detainees ’ and ongoing behavioral problems. ” 164. According to the report, one of the high-value detainees, Abu ‑ Faraj al-Libi, was transferred to Detention Site Black on an unspecified (redacted) date in May 2005 and was subjected to EITs starting from 28 May 2005. The section concerning the closure of Detention Site Black after publication of the Washington Post article (see paragraph 23 6 below) is rendered in paragraph 13 3 above. I. Parliamentary inquiry in Romania 165. On 2 1 December 2005, by virtue of the Decree of Romania ’ s Senate of 21 December 2005 (published on 27 December 2005) the Romanian Parliament set up the Inquiry Committee for investigating statements regarding the existence of CIA detention facilities or of some flights of planes leased by the CIA on the territory of Romania ( Comisia de anchetă pentru investigarea afirmaţiilor cu privire la existenţa unor centre de detenţie ale CIA sau a unor zboruri ale avioanelor închiriate de CIA pe teritoriul României ) ( “ the Romanian Senate Inquiry Committee ” ). It comprised eleven members and was presided over by Ms N. Nicolai. The report of the Romanian Senate Inquiry Committee ( “ the 200 7 Romanian Senate Report ” ) was published in the Official Monitor on 7 May 2008. The annexes attached to the report remained classified. 166. The 2007 Romanian Senate Report explained that the committee had been established “ following the request of Mr Rene van der Linden, the President of the Council of Europe Parliamentary Assembly (PACE), formulated in the speech held in the assembly of the united chambers of Romania ’ s Parliament on 24 November 2005, to investigate the accusations published in the international press regarding the detention and illegal transfer of prisoners in some of the member states of the Council of Europe ”. The terms of reference were defined as follows: “ According to Article 1 of the Decree of Romania ’ s Senate no. 29 of 21 December 2005, the Inquiry Committee was charged with investigating statements regarding the existence of some CIA detention facilities on the territory of Romania or of some flights of some planes leased by CIA, that would have allegedly transported persons accused of having performed terrorist acts ”. The initial deadline for presenting a report by the committee was fixed for 15 February 2006 but, given the complexity of the issues involved, that term was eventually extended until 5 March 2007. 167. From January 2006 to January 2007 the Romanian Senate Inquiry Committee held periodic meetings, usually on a monthly basis and carried out some fact-finding missions. According to the 2007 Romanian Senate Report, the committee held twenty-one meetings “ for documentation review and analysis with the leaders of institutions and specialised structures ” and over forty meetings with official delegations and members of the Council of Europe ’ s inquiry body, other politicians and journalists. It heard over 200 persons and studied over 4,200 pages of documents. Its delegates also made six visits to the airports and military airbases susceptible to have been used for secret detentions and illegal prisoners ’ transfers, including Timișoara - Gearmata; Bucharest- Băneasa; Constanţa -Mihail Kogălniceanu; Tulcea-Cataloi and Fetești-military. Based on the in situ investigations, the Romanian Senate Inquiry Committee found no facility built at the material time (2003-2005) that might have been used as a detention facility, “ be it ad hoc ”. Also, it concluded that no flight that had passed through Mihail Kogălniceanu airport would raise suspicions of the illegal transport, embarking or disembarking of any passenger. 168. As regards “ suspicious flights ” in respect of which Senator Marty asked the Romanian authorities for all available evidence in his letter on 7 November 2006, the findings read, in so far as relevant, as follows: “ Regarding flight N313P of 25 January 2004, the Committee established that that flight landed on the Airport Bucharest- Băneasa for refuelling and ground services. No passenger embarked or disembarked the plane. There is all evidence that shows beyond this fact, but also the purpose of the stopover. ... Mr Dick Marty states that the declaration of the Inquiry Committee contradicts the information provided by the Romanian Civil Aeronautical Authority, according to which, on 25 January 2004, its destination airport was Timişoara, not Bucharest - Băneasa. Later, the plane took off from Timisoara, and Mr Marty declared that he verified this fact. ... We would like to mention that the initial information provided by the Romanian Civil Aeronautical Authority (RCAA), regarding the landing on the International Аirport Timisoara of the flight N313P of 25 January 2004, is due to the fact that RCAA had access only to the flight plan sent by the operator of the aircraft. The flight plan was modified by the operator in the air, requesting the stop on the International Airport Bucharest- Băneasa. At that date, according to the Romanian legislation, the operators who performed private flights in the national airspace were not under any obligation to request from request from RCAA any overflight authorisation, since it was sufficient to submit the flight plan to the traffic body. ... For N313P of 22 - 23 September 2003 (classified appendix no. 4): - copy of the extract of the navigation chart ROMATSA associated with the Airport Băneasa, in which the real route of the flight is indicated; - copy of the invoices no. 665 and 666 of 23 September 2003, concerning the flight N313P, issued by the handling agent of the Romanian Airport Services. Flight N478GS of 6 December 2004, which had an accident while landing at the Airport Bucharest- Băneasa, is suspected of being involved in a circuit that would have transported prisoners, due to the fact that it was omitted from the list sent to Mr Dick Marty in April 2006. The event had the following development: On 6 December 2004, at 1:29 PM, the aircraft of the company CENTURION AVIATION, type Gulfstream 4, which was performing a charter flight on the route Bagram/Afganistan- Bucharest/ Băneasa, landed on the runway of the Аirport Băneasa, passing the threshold of the runway 07, with a ground speed of approximately 287 km/h. While rolling, the aircraft exceeded the available speed for landing ... and the delayed threshold of the runway, in an area of the runway where the airport was carrying on maintenance works ... .The aircraft rolled with the main left jamb on an unpaved portion with a depth of approximately 15-20 cm and stopped on the edge of the runway. The crew reported massive leaks of fuel from the left wing. The aircraft experienced damages on the left jamb of the main landing train and on the fuel tank in the left plan(classified appendix no. 5). ... Flight N379P of 25 October 2003 raises questions for Mr Dick Marty, thinking that the Romanian Civil Aeronautical Authority indicates the route Prague- Constanţa - Băneasa -Amman. In reality, the flight took place on the route Prague -Bucharest Băneasa -Amman, according to invoice no. 3.314 of 25 October 2003, issued by ROMATSA (classified appendix no. 6). Flights N85VM of 26 January 2004 and 12 April 2004 did not operate in the Airport Mihail Kogălniceanu, but in Airport Bucharest– Băneasa (classified appendices no. 7 and 8); flights N227SV of 1 October, 2004 and N2189M of 13-14 June 2003 operated on the Аirport Mihail Kogălniceanu (classified appendices no. 9 and 10). The appendix to Mr. Dick Marty ’ s letter of March 31, 2006 requests details regarding 43 flights. The Inquiry Committee presents them in classified appendix no. 11. ” 169. The final conclusions of the 2007 Romanian Senate Report were formulated as follows: 1. To the question whether there is or there were American secret detention sites in Romania, the answer is negative. 2. To the question whether in Romania, during the investigated period, there exist or existed facilities for detaining prisoners, other than penitentiary ones (real, secret, ad-hoc, buildings that were used for this purpose on an improvised basis, potentially in the proximity of airports Timişoara, Bucharest – Henri Coanda or Băneasa, and Constanţa, the Inquiry Committee ’ s answer is negative. 3. To the question whether there are or there were detainees with or without records held in the Romanian penitentiary system, who could have been assimilated with prisoners, the Inquiry Committee ’ s answer is negative. 4. To the question whether there could have been clefts in the complete control system of the civil or military traffic or whether some flights could have passed inadvertently without being monitored or unrecorded or if in their cases the ground procedures stipulated in the international conventions could have not been applied, the Inquiry Committee ’ s answer is negative. 5. To the question whether it could have been possible that certain Romanian institutions in Romania would have participated knowingly or by omission or negligence in operations of illegal transport of detainees through the airspace or airports in Romania, the Inquiry Committee ’ s answer is negative. 6. To the question whether civil American flights or other states ’ civil flights could have transported, dropped, or picked up persons that could be assimilated to the detainees on the Romanian territory or under the responsibility of Romanian authorities, in compliance with international regulations, the Inquiry Committee ’ s answer is negative. 7. To the question whether there existed an in-depth parliamentary investigation to determine the media allegations regarding the existence of some detention facilities or of some flights with illegal prisoners in Romania, the Investigation Committee ’ s answer is positive. 8. To the question whether the purpose of the stopovers in Romania of the flights referred to in chapter 5, the Inquiry Committee has solid grounds to reply that they had nothing to do with potential illegal transports of prisoners on the territory of Romania. ” 170. On 13 October 2008, in reply to a letter by APADOR-CH concerning the purpose of the flights mentioned by the report cited above, the President of the Romanian Senate stated: “ ... the Inquiry Committee was assigned to investigate the statements regarding the existence of CIA detention facilities or of some flights of planes leased by CIA on the territory of Romania. Consequently, since its mandate was strictly limited to the aforementioned issue, the Inquiry Committee did not request data from appropriate institutions, did not perform any investigation, and does not hold any kind of information regarding the purpose of the flights with the indication mentioned in chapter 5, point 3. ... ” J. Criminal investigation in Romania 171. On 29 May 2012 the applicant ’ s lawyer filed a criminal complaint ( plângere penală ) on his behalf with the Prosecutor General, asking for an investigation into circumstances surrounding the applicant ’ s rendition, secret detention and ill-treatment in Romania to be opened. It was submitted that the Romanian authorities had allowed the CIA to subject the applicant to torture and unlawful, incommunicado detention on Romanian territory and to transfer him out of the country despite the risk of his facing further torture, unacknowledged detention and death penalty. He relied on Articles 2, 3, 5, 6, 8 and 13 of the Convention and Article 1 of Protocol No. 6 and maintained that the conduct of the Romanian authorities constituted offences of, inter alia, aiding and abetting murder, torture and ill-treatment as defined in the Romanian Criminal Code. 172. On 20 July 2012 the Prosecutor General acknowledged that the complaint had been registered and assigned a file number, and that its review was at a preliminary stage. Some time afterwards, on an unspecified date, the prosecution authorities opened an investigation concerning the applicant ’ s allegations. 1. Submission by the Government of confidential documents from the investigation file 173. At the Court ’ s request, the Government submitted various materials concerning the investigation asking, under Rule 33 § 2 of the Rules of Court, for public access to those documents to be restricted, in the interests of national security and also on the grounds of secrecy of the investigation (see also paragraph 12 above). Those materials included transcripts of witness evidence obtained in the investigation. They were produced in the Romanian language, with an English translation. The English version is rendered in paragraphs 29 9 -32 5 below. All these documents were available to the Court and the applicant in full, unredacted versions. The following description of the course of the investigation is based on a summary (redacted version) of annexes containing documents from the investigation file produced by the Government. That summary was prepared by the Government in the English language. 2. The course of the investigation according to documentary evidence produced by the Government 174. On 3 December 2012 the investigating prosecutor analysed the applicant ’ s complaint and its context, including laws and arrangements regarding bilateral agreements between Romania and the United States and information in the public domain concerning the applicant ’ s allegations. Also, an initial investigation plan was prepared on that date. The plan included a list of requests for information, clarifications, documents, audio and video recordings and flight data to be addressed to various domestic authorities – among others, the Civil Aviation Authority, Air Traffic Services Administration, Otopeni, Kogălniceanu and Băneasa airports, the Government and the relevant ministries. 175. On 27 December 2012 the Prosecutor ’ s Office attached to the Court of Cassation ( Parchetul de pe lângă Ȋnalta Curte de Casație şi Justiție – “ PICCJ ” ) asked the RCAA to provide, in connection with the investigation the following information concerning certain flights mentioned in an annex to the request ( the annex has not been produced): ( a) any data, information, documents held with regard to the air traffic control in respect of the flights in question; ( b) any audio or video recordings concerning the flights in question (for example: air traffic control or directing); ( c) names of individuals who had carried out specific tasks on the dates when the flights in question had allegedly taken place; ( d) names of individuals directly involved in facilitating or operating those flights. 176. On 12 January 2013 the RCAA informed the PICCJ that, according to the relevant legislation in force at the relevant time (2003-2005), namely Government Decision no. 1172/2003, they had data concerning only a few flights – which they included in an annex (the annex has not been produced). The RCAA stated that the available data did not clearly show that these flights had taken place and that they did not have any documents which attested that the flights had actually taken place. According to the legislation in force at the material time, information in the RCAA ’ s possession showed only an intention to operate the flights, which had been planned and notified to them. It further stated that Government Decision no. 1172/2003 had eliminated the need for the RCAA to approve flights which transited the national airspace with no commercial stop (and did not carry troops, military equipment, weapons, munitions, explosives, radioactive or other dangerous materials or did not fall in the category of technical flights) and, also, internal and international flights with civil aircraft registered abroad, landing and taking off from the Romanian territory, which were included in the category of civil air operations of general aviation. These flights were considered authorised if a flight plan on a published ATS (Air Traffic Service) route was submitted and the aircraft used were insured for damage caused to third parties on the ground. As regards audio or video recordings and names of any individuals involved, the RCAA stated that they did not have any such information. 177. In addition, the Government produced copies of the following prosecutor ’ s letters requesting information or documents from various authorities: ( 1 ) letter of 27 December 2012 addressed to the Romanian Government, asking for the classified annexes to the 2007 Romanian Senate Report; ( 2 ) letters of 27 December 2012 addressed to Timişoara Airport, Constanţa Mihail Kogălniceanu Airport and Bucharest Băneasa Airport, requesting information about the alleged suspicious flights, including audio or video recordings, and about the airport personnel who had worked on the relevant dates; ( 3 ) letter of 3 March 2013 addressed to the Ministry of Transport and Infrastructure, requesting it to the transmit the National Programme of Aeronautical Security to the prosecutor; ( 4 ) letters of 18 March 2013 addressed to the Civil Aviation Directorate and the Bucharest Airports National Company requesting information about flights N313P, N85VM, N379P, N478GS, N228KA, N308AB, N789DK, N227SV, N787WH, N1HC, N2189M and N860JB, including general flight data from 2003-2006, types and purposes of flights, type of journey, flight route, flight operator, flight organiser, aircraft type, aircraft capacity, aircraft registration, documents regarding insurance, information about the crew and passengers, initial flight plans, subsequent flight documents, flight or overflight authorisations, specific requests for each flight and handling operator; ( 5 ) letter of 24 April 2013 addressed to the Bucharest Airports National Company, requesting information about applications for authorisation of access of persons and vehicles to the airplanes, the relevant records, information about the security personnel and the handling agents who had worked on the relevant dates at Bucharest Băneasa Airport and at Constanţa Mihail Kogălniceanu Airport; ( 6 ) letter of 24 April 2013 addressed to the General Inspectorate of the Border Police, requesting information about the personnel who had worked on the relevant dates and any persons who entered, exited or transited the national territory on those dates through Bucharest Băneasa Airport and Constanţa Mihail Kogălniceanu Airport; ( 7 ) letter of 29 April 2013 addressed to the Romanian Airport Services ( “ RAS ” ), requesting information about the personnel who had worked on the relevant dates and the handling operations performed. 178. On an unspecified date, in response to the prosecutor ’ s request, the Ministry of Transport - Civil Aviation Directorate provided the following documents: - flight plans of N312ME on 24 April 2003, N175A on 5 May 2003, N58AS on 16 June 2003, N313P on 22 September 2003, N313P on 25 January 2004 and N227SV on 1 October 2004; - control lists of the navigation records; - tables containing handling fees; - invoices issued by the RAS; - ground handling charge notes; - air navigation services sheets; - address no. 6 293 of 4 November 2006 issued by Timișoara Airport informing that, after checking their records, there was no evidence of the landing of the flight N313P operated by Business Jet Solutions. It was also mentioned that the said aircraft had not carried out any flights on Traian Vuia Airport – Timișoara until 14 November 2006. - list of flight plans; - letter no. 239 of 25 March 2013 from the Bucharest Airports National Company, transmitting all relevant information identified in their archives and informing the prosecution that from 2004 to 2005 in Bucharest Băneasa Airport the RAS was in charge of the handling services. The letter also mentioned that the flights concerned had not been identified as having operated at Henri Coandă Airport. - letter no. 2183 of 22 March 2013 from Constanţa Mihail Kogălniceanu Airport confirming, among other things, that N308AB had operated in that airport and that it had landed on 25 August 2004 at 00:03, and departed on 25 August 2004 at 01:33; - letter no. 3461 of 13 June 2006 from Constanţa Mihail Kogălniceanu Airport, confirming that the aircraft Lockheed L382 registered as N2189M had operated at that airport, landing on 13 June 2003 at 09:57, departing on 14 June 2003 at 08:31 and that the aircraft Gulfstream IV registered as N227SV had operated in the airport, landing on 1 October 2004 at 20:39 and departing at 21:26 on the same date. 179. On 26 April 2013 the Bucharest Airports National Company replied to the prosecutor ’ s request of 18 March 2013. The company stated that it did not have information about general flight data concerning the indicated aircraft in the period 2003-2006, the purpose of the flights, type of journey, flight organiser, aircraft capacity, any documents regarding insurance, information about the crew and passengers, initial flight plans, subsequent flight documents, flight or overflight authorisations or information about handling requests. It informed the prosecutor that the flight plans had been received through the AFTN terminal and had not been subject to archiving and that the RAS had been the handling operator in 2003-2006 at Bucharest Băneasa Airport. A table containing information about the relevant flights was transmitted to the prosecutor. 180. On 21 May 2013 the Bucharest Airports National Company replied to the prosecutor ’ s request of 24 April 2013. The company transmitted the requested information about the applications for access authorisation to the planes and the relevant records. It also explained to the prosecutor that since the retention periods for the requested documents were from three to five years, it was impossible for it to produce any additional information about the requests for authorisations and the access records. The company also produced information concerning the security personnel who had worked on the relevant dates. 181. On 20 May 2013 the General Inspectorate of the Border Police replied to the prosecutor ’ s request of 24 April 2013. It forwarded a list containing the names, personal data and the present workplace of the personnel who had worked on the relevant dates. It also informed the prosecutor that flight logs had automatically been erased after five years and that, as a consequence, they could not submit the requested information about the persons who had entered, exited or transited the national territory on those dates at Bucharest Băneasa Airport. 182. On 11 July 2013 the General Inspectorate of the Border Police supplied information concerning the personnel who had worked at Bucharest Băneasa Airport on 22 September 2003 and their personal data. 183. On 13 June 2013 the RAS replied to the prosecutor ’ s request of 29 April 2013. The RAS informed the prosecutor about the personnel who had worked on the relevant dates and transmitted several tables containing handling fees. They also stated that information about the handling services performed had been retained only for three years. 184. In the meantime, on 24 April 2013, the prosecutor asked the Ministry of National Defence ( Ministerul Apărării Naționale ) to produce, on an urgent basis, the following information concerning the period of 2003-2006: ( a) military flights carried out by US military aircraft or civilian flights carried out by the US air companies, which concerned “ the transfer of individuals within the framework of the USA Special Rendition Program ” and which had had as a point of transfer, transit or destination “ airports on Romania ’ s territory ”; ( b) existence or non-existence, on Romania ’ s territory, of alleged detention facilities set up at the US authorities ’ or the US forces ’ request and their possible location, including names of legal persons hosting them; ( c) detention, interrogation, and subsequent transfer of individuals in the US forces ’ or the US authorities ’ custody from the alleged detention facilities to other locations; d) names of persons who had been subjected to such treatment. 185. On 24 May 2013 the Ministry of National Defence replied that the requested materials were part of documents sent to the Romanian Senate Inquiry Committee by a note of 31 March 2006, which was classified as “ confidential information ”. The Ministry stated that they did not have a copy of those documents, that the documents had been sent to the committee in a single copy ( exemplar unic ) and that they had not yet been returned to them. Moreover, the provision of information concerning civil aircraft which had operated in the Romanian airspace and in the Romanian international civilian airports fell within the competence and responsibility of the relevant departments attached to the Ministry of Transport. The Ministry further stated that, by their letter of 9 May 2008, sent to M. Constantinescu, a State councillor attached to the Prime-Minister ’ s office, they had agreed that documents classified “ confidential information ” be sent to the European Commission. Moreover, the Air Force General Staff ( Statul Major al Forțelor Aeriene ) had stated that it had not had any records of flights operating in the airspace or in the military airports between 2003 and 2006 and transferring individuals in the framework of the US rendition programme; moreover, the representatives of the US authorities had not had access to buildings or air facilities belonging to air bases subordinate to the Air Force or exclusive access to certain areas. Lastly, the Ministry stated that the General Information Agency of the Defence ( Direcția Generală de Informații a Apărării ) had no information about the existence of secret US bases in Romania, about individuals allegedly detained illegally in Romanian prisons, their interrogation or transport to and from Romania by unmonitored or unauthorised flights. 186. On 24 January 2014 the PICCJ asked the Service for International Judicial Cooperation, Programs and International Relations to forward a request for legal assistance (including 4 annexes) to the relevant US judicial authorities. In the letter of request, the prosecutor asked the US authorities to provide, in connection with the criminal investigation, information concerning, among other things, the period and circumstances of Mr Al ‑ Nashiri ’ s arrest and detention, the proceedings against him instituted by the US authorities; whether Mr Al-Nashiri had ever been brought to Romania in the context of his detention imposed by the US authorities under the CIA rendition programme and whether Romania had potentially been involved in that programme. The prosecutor also asked for the date of his arrival on Romanian territory, the means of transport used, the place of his detention on Romanian territory; the date of his departure from Romania, the means of transport used and the relevant documents and whether the Romanian authorities had been aware of his stay in the country. 187. On an unspecified date in March 2014 the US Department of Justice replied to the letter of request, stating that the US authorities were not able to provide the information requested. 188. In the meantime, on 27 February 2014, following the entry into force of the new Romanian Criminal Code and Code of Criminal Procedure (see also paragraph 196 below), the prosecutor had re-analysed the applicant ’ s criminal complaint in the light of the new legislation and decided that the investigation should also include crimes of unlawful deprivation of liberty and torture. 189. In the course of the investigation, in 2013 and 2015, the prosecutor took evidence from witnesses, including some high-office holders. It also heard other officials, the Border Police officers and the airport staff, including the security personnel. The Government produced transcripts of evidence given by certain witnesses (see paragraphs 29 8-325 below). 190. The investigation, apparently still directed against persons unknown, is pending. V. RELEVANT DOMESTIC LAW A. Criminal Code 1. Territorial jurisdiction 191. Article 3 of the old Criminal Code, as applicable until 31 January 2014, read as follows: “ Romanian criminal law shall apply to offences committed on the territory of Romania ” 192. On 1 February 2014 the new Criminal Code entered into force. Article 8 § 1 of the new Criminal Code is phrased in the same terms. 2. Prohibition of torture and offence of unlawful deprivation of liberty 193. The prohibition of torture was set forth in Article 267 of the old Criminal Code and, since 1 February 2014 (with minor changes of the wording), has been included in Article 282 of the new Criminal Code. Penalties applicable remained the same. The crime of torture is liable to sentence of imprisonment from two to seven years. In cases where a bodily harm has been caused to the victim, the sentence ranges from three to ten years ’ imprisonment. If torture resulted in the victim ’ s death, the sentence ranges from fifteen to twenty-five years ’ imprisonment. 194. The offence of unlawful deprivation of liberty was defined in Article 189 of the old Criminal Code and was liable to a sentence of imprisonment ranging from three to ten years ’ imprisonment. At present, it is defined in Article 205 of the new Criminal Code and is liable to a sentence ranging from one to seven years ’ imprisonment. B. Code of Criminal Procedure 195. In general, an offence must be prosecuted by the authorities of their own motion. Exceptions include only a few offences which cannot be prosecuted without a prior request ( plângere prealabilă ) from a victim or from a specific authority (e.g. certain military offences). A criminal investigation may also be opened following a criminal complaint from the victim or notification of an offence by any physical or legal person who has become aware that such offence has been committed. 196. Article 221 of the old Code of Criminal Procedure ( “ old CCP ” ) as applicable until 1 February 2014 read, in so far as relevant, as follows: “ A criminal investigation authority [shall institute an investigation] if it has been informed of commission of an offence by a criminal complaint or notification of commission of an offence, or it shall [take action] of its own motion, when it has discovered by other means that an offence has been committed. Where, according to the law, a criminal investigation can only be opened following a prior complaint, notification or authorisation of an authority provided for by law, such investigation shall not be instituted in their absence. ... ” A criminal complaint was defined as a notification of the commission of an offence submitted by a person or institution having sustained damage as a result of an offence. Notification of an offence could be made by any person or institution. 197. Following the entry into force of the New Code of Criminal Procedure ( “ new CCP ” ), the Article 221 was repealed and replaced by current Article 292 which reads as follows: “ A criminal investigation authority shall take action of its own motion if it learns ( afla ) about commission of a criminal offence from any source other than those referred to in Articles 289-291 [ in particular, criminal complaint and notification of the commission of an offence] and shall draw up a report in this regard. ” A criminal complaint is defined in Article 289 of the new CCP as “ information laid by an individual or legal entity concerning damage sustained thereby as a result of a criminal offence ”. Notification of the commission of an offence is defined in Article 290 as a notification submitted by any individual or legal entity. VI. RELEVANT INTERNATIONAL LAW A. Vienna Convention on the Law of Treaties 198. Articles 26 and 27 of the Vienna Convention on the Law of Treaties (23 May 1969), to which Romania is a party, provide as follows: Article 26 “ Pacta sunt servanda ” “ Every treaty in force is binding upon the parties to it and must be performed by them in good faith. ” Article 27 Internal law and observance of treaties “ A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty ... ” B. International Covenant on Civil and Political Rights 199. Article 7 of the International Covenant on Civil and Political Rights ( “ ICCPR ” ), to which Romania is a party, reads as follows: “ No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation. ” 200. Article 10 § 1 of the ICCPR reads as follows: “1. All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.” C. The UN Torture Convention 201. One hundred and forty-nine States are parties to the 1984 UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ( “ UNCAT ” ), including all member States of the Council of Europe. Article 1 of the Convention defines torture as: “ any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. ” 202. Article 1(2) provides that it is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application. Article 2 requires States to take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. Article 4 requires each State Party to ensure that all acts of torture are offences under its criminal law. Article 3 provides: “ 1. No State Party shall expel, return ( ‘ refouler ’ ) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture. 2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights. ” 203. Article 12 provides that each State Party must ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction. Article 15 requires that each State ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made. D. UN Geneva Conventions 1. Geneva (III) Convention 204. Article 4 of the Geneva (III) Convention relative to the Treatment of Prisoners of War of 12 August 1949 (“the Third Geneva Convention”), which defines prisoners of war, reads, in so far as relevant, as follows: “Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy: (1) Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces. (2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions: (a) that of being commanded by a person responsible for his subordinates; (b) that of having a fixed distinctive sign recognizable at a distance; (c) that of carrying arms openly; (d) that of conducting their operations in accordance with the laws and customs of war. (3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power. ...” 205. Article 5 states: “The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation. Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.” 206. Article 13 reads: “Art 13. Prisoners of war must at all times be humanely treated. Any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner of war in its custody is prohibited, and will be regarded as a serious breach of the present Convention. In particular, no prisoner of war may be subjected to physical mutilation or to medical or scientific experiments of any kind which are not justified by the medical, dental or hospital treatment of the prisoner concerned and carried out in his interest. Likewise, prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity. Measures of reprisal against prisoners of war are prohibited.” 207. Article 21 reads, in so far as relevant: “The Detaining Power may subject prisoners of war to internment. It may impose on them the obligation of not leaving, beyond certain limits, the camp where they are interned, or if the said camp is fenced in, of not going outside its perimeter. Subject to the provisions of the present Convention relative to penal and disciplinary sanctions, prisoners of war may not be held in close confinement except where necessary to safeguard their health and then only during the continuation of the circumstances which make such confinement necessary.” 2. Geneva (IV) Convention 208. Article 3 of the Geneva (IV) Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 (“the Fourth Geneva Convention”) reads, in so far as relevant, as follows: “In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions: (1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” 209. Article 4 reads, in so far as relevant, as follows: “Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals. Nationals of a State which is not bound by the Convention are not protected by it. Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co-belligerent State, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are. ...” E. International Law Commission, 2001 Articles on Responsibility of States for Internationally Wrongful Acts 210. The relevant parts of the Draft Articles (“the ILC Articles”), adopted on 3 August 2001 ( Yearbook of the International Law Commission, 2001, vol. II), read as follows: Article lResponsibility of a State for its internationally wrongful acts “Every internationally wrongful act of a State entails the international responsibility of that State.” Article 2 Elements of an internationally wrongful act of a State “There is an internationally wrongful act of a State when conduct consisting of an action or omission: a. Is attributable to the State under international law; and b. Constitutes a breach of an international obligation of the State.” Article 7 Excess of authority or contravention of instructions “The conduct of an organ of a State or of a person or entity empowered to exercise elements of the governmental authority shall be considered an act of the State under international law if the organ, person or entity acts in that capacity, even if it exceeds its authority or contravenes instructions. ...” Article 14 Extension in time of the breach of an international obligation “1. The breach of an international obligation by an act of a State not having a continuing character occurs at the moment when the act is performed, even if its effects continue. 2. The breach of an international obligation by an act of a State having a continuing character extends over the entire period during which the act continues and remains not in conformity with the international obligation. 3. The breach of an international obligation requiring a State to prevent a given event occurs when the event occurs and extends over the entire period during which the event continues and remains not in conformity with that obligation.” Article 15 Breach consisting of a composite act “1. The breach of an international obligation by a State through a series of actions or omissions defined in aggregate as wrongful occurs when the action or omission occurs which, taken with the other actions or omissions, is sufficient to constitute the wrongful act. 2. In such a case, the breach extends over the entire period starting with the first of the actions or omissions of the series and lasts for as long as these actions or omissions are repeated and remain not in conformity with the international obligation.” Article 16 Aid or assistance in the commission of an internationally wrongful act “A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if: ( a ) that State does so with knowledge of the circumstances of the internationally wrongful act; and ( b ) the act would be internationally wrongful if committed by that State.” F. UN General Assembly Resolution 60/147 211. The UN General Assembly ’ s Resolution 60/147 on Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, adopted on 16 December 2005, reads, in so far as relevant, as follows: “ 24. ... victims and their representatives should be entitled to seek and obtain information on the causes leading to their victimization and on the causes and conditions pertaining to the gross violations of international human rights law and serious violations of international humanitarian law and to learn the truth in regard to these violations ”. VII. SELECTED PUBLIC SOURCES CONCERNING GENERAL KNOWLEDGE OF THE HVD PROGRAMME IN 2002-2005 AND HIGHLIGHTING CONCERNS AS TO HUMAN RIGHTS VIOLATIONS ALLEGEDLY OCCURRING IN US-RUN DETENTION FACILITIES IN THE AFTERMATH OF 11 SEPTEMBER 2001 212. The applicant and third-party interveners submitted a considerable number of reports and opinions of international governmental and non-governmental organisations, as well as articles and reports published in media, which raised concerns about alleged rendition, secret detentions and ill-treatment of al-Qaeda and Taliban detainees in US-run detention facilities in Guantánamo and Afghanistan. A summary of most relevant sources is given below. A. United Nations 1. Statement of the UN High Commissioner for Human Rights on detention of Taliban and al-Qaeda prisoners at the US Base in Guantánamo Bay, Cuba, 16 January 2002 213. The UN High Commissioner for Human Rights stated as follows: “ All persons detained in this context are entitled to the protection of international human rights law and humanitarian law, in particular the relevant provisions of the International Covenant on Civil and Political Rights (ICCPR) and the Geneva Conventions of 1949. The legal status of the detainees and their entitlement to prisoner-of-war (POW) status, if disputed, must be determined by a competent tribunal, in accordance with the provisions of Article 5 of the Third Geneva Convention. All detainees must at all times be treated humanely, consistent with the provisions of the ICCPR and the Third Geneva Convention. ” 2. Statement of the International Rehabilitation Council for Torture 214. In February 2003 the UN Commission on Human Rights received reports from non-governmental organisations concerning ill-treatment of US detainees. The International Rehabilitation Council for Torture ( “ the IRCT ” ) submitted a statement in which it expressed its concern over the United States ’ reported use of “ stress and duress ” methods of interrogation, as well as the contraventions of refoulement provisions in Article 3 of the Convention Against Torture. The IRCT report criticised the failure of governments to speak out clearly to condemn torture; and emphasised the importance of redress for victims. The Commission on Human Rights communicated this document to the United Nations General Assembly on 8 August 2003. 3. UN Working Group on Arbitrary Detention, Opinion No. 29/2006, Mr Ibn al-Shaykh al-Libi and 25 other persons v. United States of America, UN Doc. A/HRC/4/40/Add.1 at 103 (2006) 215. The UN Working Group found that the detention of the persons concerned, held in facilities run by the United States secret services or transferred, often by secretly run flights, to detention centres in countries with which the United States authorities cooperated in their fight against international terrorism, fell outside all national and international legal regimes pertaining to the safeguards against arbitrary detention. In addition, it found that the secrecy surrounding the detention and inter-State transfer of suspected terrorists could expose the persons affected to torture, forced disappearance and extrajudicial killing. B. Parliamentary Assembly of the Council of Europe Resolution no. 1340 (2003) on rights of persons held in the custody of the United States in Afghanistan or Guantánamo Bay, 26 June 2003 216. The above resolution (“the 2003 PACE Resolution”) read, in so far as relevant, as follows: “1. The Parliamentary Assembly: 1.1. notes that some time after the cessation of international armed conflict in Afghanistan, more than 600 combatants and non-combatants, including citizens from member states of the Council of Europe, may still be held in United States ’ military custody – some in the Afghan conflict area, others having been transported to the American facility in Guantánamo Bay (Cuba) and elsewhere, and that more individuals have been arrested in other jurisdictions and taken to these facilities; ... 2. The Assembly is deeply concerned at the conditions of detention of these persons, which it considers unacceptable as such, and it also believes that as their status is undefined, their detention is consequently unlawful. 3. The United States refuses to treat captured persons as prisoners of war; instead it designates them as ‘ unlawful combatants ’ – a definition that is not contemplated by international law. 4. The United States also refuses to authorise the status of individual prisoners to be determined by a competent tribunal as provided for in Geneva Convention (III) relative to the Treatment of Prisoners of War, which renders their continued detention arbitrary. 5. The United States has failed to exercise its responsibility with regard to international law to inform those prisoners of their right to contact their own consular representatives or to allow detainees the right to legal counsel. 6. Whatever protection may be offered by domestic law, the Assembly reminds the Government of the United States that it is responsible under international law for the well-being of prisoners in its custody. 7. The Assembly restates its constant opposition to the death penalty, a threat faced by those prisoners in or outside the United States. 8. The Assembly expresses its disapproval that those held in detention may be subject to trial by a military commission, thus receiving a different standard of justice than United States nationals, which amounts to a serious violation of the right to receive a fair trial and to an act of discrimination contrary to the United Nations International Covenant on Civil and Political Rights. 9. In view of the above, the Assembly strongly urges the United States to: 9.1. bring conditions of detention into conformity with internationally recognised legal standards, for instance by giving access to the International Committee of the Red Cross (ICRC) and by following its recommendations; 9.2. recognise that under Article 4 of the Third Geneva Convention members of the armed forces of a party to an international conflict, as well as members of militias or volunteer corps forming part of such armed forces, are entitled to be granted prisoner of war status; 9.3. allow the status of individual detainees to be determined on a case-by-case basis, by a competent tribunal operating through due legal procedures, as envisaged under Article 5 of the Third Geneva Convention, and to release non-combatants who are not charged with crimes immediately. 10. The Assembly urges the United States to permit representatives of states which have nationals detained in Afghanistan and in Guantánamo Bay, accompanied by independent observers, to have access to sites of detention and unimpeded communication with detainees. ... 13. The Assembly further regrets that the United States is maintaining its contradictory position, claiming on the one hand that Guantánamo Bay is fully within US jurisdiction, but on the other, that it is outside the protection of the American Constitution. In the event of the United States ’ failure to take remedial actions before the next part-session, or to ameliorate conditions of detention, the Assembly reserves the right to issue appropriate recommendations.” C. International non-governmental organisations 1. Amnesty International, Memorandum to the US Government on the rights of people in US custody in Afghanistan and Guantánamo Bay, April 2002 217. In this memorandum, Amnesty International expressed its concerns that the US Government had transferred and held people in conditions that might amount to cruel, inhuman or degrading treatment and that violated other minimum standards relating to detention, and had refused to grant people in its custody access to legal counsel and to the courts in order to challenge the lawfulness of their detention. 2. Human Rights Watch, “ United States, Presumption of Guilt: Human Rights Abuses of Post-September 11 Detainees ”, Vol. 14, No. 4 (G), August 2002 218. This report included the following passage: “ ... the fight against terrorism launched by the United States after September 11 did not include a vigorous affirmation of those freedoms. Instead, the country has witnessed a persistent, deliberate, and unwarranted erosion of basic rights ... Most of those directly affected have been non-U.S. citizens ... the Department of Justice has subjected them to arbitrary detention, violated due process in legal proceedings against them, and run roughshod over the presumption of innocence. ” 3. Human Rights Watch, “ United States: Reports of Torture of Al ‑ Qaeda Suspects ”, 26 December 2002 219. This report referred to the article in The Washington Post : “ U.S. Decries Abuse but Defends Interrogations ”, which described “ how persons held in the CIA interrogation centre at Bagram air base in Afghanistan were being subject to ‘ stress and duress ’ techniques, including ‘ standing or kneeling for hours ’ and being ‘ held in awkward, painful positions ’ ”. It further stated: “ The Convention against Torture, which the United States has ratified, specifically prohibits torture and mistreatment, as well as sending detainees to countries where such practices are likely to occur. ” 4. International Helsinki Federation for Human Rights, “ Anti ‑ terrorism Measures, Security and Human Rights: Developments in Europe, Central Asia and North America in the Aftermath of September 11 ”, Report, April 2003 220. The relevant passage of this report read as follows: “ Many ‘ special interest ’ detainees have been held in solitary confinement or housed with convicted prisoners, with restrictions on communications with family, friends and lawyers, and have had inadequate access to facilities for exercise and for religious observance, including facilities to comply with dietary requirements. Some told human rights groups they were denied medical treatment and beaten by guards and inmates. ” 5. Amnesty International Report 2003 – United States of America, 28 May 2003 221. This report discussed the transfer of detainees to Guantánamo, Cuba in 2002, the conditions of their transfer ( “ prisoners were handcuffed, shackled, made to wear mittens, surgical masks and ear muffs, and were effectively blindfolded by the use of taped-over ski goggles ” ) and the conditions of detention ( “ they were held without charge or trial or access to courts, lawyers or relatives ” ). It further stated: “ A number of suspected members of al-Qaeda reported to have been taken into US custody continued to be held in undisclosed locations. The US government failed to provide clarification on the whereabouts and legal status of those detained, or to provide them with their rights under international law, including the right to inform their families of their place of detention and the right of access to outside representatives. An unknown number of detainees originally in US custody were allegedly transferred to third countries, a situation which raised concern that the suspects might face torture during interrogation. ” 6. Amnesty International, “ Unlawful detention of six men from Bosnia-Herzegovina in Guantánamo Bay ”, 29 May 2003 222. Amnesty International reported on the transfer of six Algerian men, by Bosnian Federation police, from Sarajevo Prison into US custody in Camp X-Ray, located in Guantánamo Bay, Cuba. It expressed its concerns that they had been arbitrarily detained in violation of their rights under the International Covenant on Civil and Political Rights. It also referred to the decision of the Human Rights Chamber of Bosnia and Herzegovina in which the latter had found that the transfer had been in violation of Article 5 of the Convention, Article 1 of Protocol No. 7 and Article 1 of Protocol No. 6. 7. Amnesty International, “ United States of America, The threat of a bad example: Undermining international standards as ‘ war on terror ’ detentions continue ”, 18 August 2003 223. The relevant passage of this report read as follows: “ Detainees have been held incommunicado in US bases in Afghanistan. Allegations of ill-treatment have emerged. Others have been held incommunicado in US custody in undisclosed locations elsewhere in the world, and the US has also instigated or involved itself in ‘ irregular renditions ’, US parlance for informal transfers of detainees between the USA and other countries which bypass extradition or other human rights protections. ” 8. Amnesty International, “ Incommunicado detention/Fear of ill ‑ treatment ”, 20 August 2003 224. The relevant passage of this report read as follows: “ Amnesty International is concerned that the detention of suspects in undisclosed locations without access to legal representation or to family members and the ‘ rendering ’ of suspects between countries without any formal human rights protections is in violation of the right to a fair trial, places them at risk of ill-treatment and undermines the rule of law. ” 9. International Committee of the Red Cross, United States: ICRC President urges progress on detention-related issues, news release 04/03, 16 January 2004 225. The ICRC expressed its position as follows: “ Beyond Guantánamo, the ICRC is increasingly concerned about the fate of an unknown number of people captured as part of the so-called global war on terror and held in undisclosed locations. Mr Kellenberger echoed previous official requests from the ICRC for information on these detainees and for eventual access to them, as an important humanitarian priority and as a logical continuation of the organization ’ s current detention work in Guantánamo and Afghanistan. ” 10. Human Rights Watch - Statement on US Secret Detention Facilities of 6 November 2005 226. On 6 November 2005 the Human Rights Watch issued a “ Statement on US Secret Detention Facilities in Europe ” ( “ the 2005 HRW Statement ” ), which indicated Romania ’ s and Poland ’ s complicity in the CIA rendition programme. It was given two days after The Washington Post had published Dana Priest ’ s article revealing information of secret detention facilities designated for suspected terrorists run by the CIA outside the US, including “ Eastern European countries ” (see also paragraph 234 below). 227. The statement read, in so far as relevant, as follows: “ Human Rights Watch has conducted independent research on the existence of secret detention locations that corroborates The Washington Post ’ s allegations that there were detention facilities in Eastern Europe. Specifically, we have collected information that CIA airplanes travelling from Afghanistan in 2003 and 2004 made direct flights to remote airfields in Poland and Romania. Human Rights Watch has viewed flight records showing that a Boeing 737, registration number N313P – a plane that the CIA used to move several prisoners to and from Europe, Afghanistan, and the Middle East in 2003 and 2004 – landed in Poland and Romania on direct flights from Afghanistan on two occasions in 2003 and 2004. Human Rights Watch has independently confirmed several parts of the flight records, and supplemented the records with independent research. According to the records, the N313P plane flew from Kabul to northeastern Poland on September 22, 2003, specifically, to Szymany airport, near the Polish town of Szczytno, in Warmia-Mazuria province. Human Rights Watch has obtained information that several detainees who had been held secretly in Afghanistan in 2003 were transferred out of the country in September and October 2003. The Polish intelligence service maintains a large training facility and grounds near the Szymany airport. ... On Friday, the Associated Press quoted Szymany airport officials in Poland confirming that a Boeing passenger plane landed at the airport at around midnight on the night of September 22, 2003. The officials stated that the plane spent an hour on the ground and took aboard five passengers with U.S. passports. ... Further investigation is needed to determine the possible involvement of Poland and Romania in the extremely serious activities described in The Washington Post article. Arbitrary incommunicado detention is illegal under international law. It often acts as a foundation for torture and mistreatment of detainees. U.S. government officials, speaking anonymously to journalists in the past, have admitted that some secretly held detainees have been subjected to torture and other mistreatment, including waterboarding (immersing or smothering a detainee with water until he believes he is about to drown). Countries that allow secret detention programs to operate on their territory are complicit in the human rights abuses committed against detainees. Human Rights Watch knows the names of 23 high-level suspects being held secretly by U.S. personnel at undisclosed locations. An unknown number of other detainees may be held at the request of the U.S. government in locations in the Middle East and Asia. U.S. intelligence officials, speaking anonymously to journalists, have stated that approximately 100 persons are being held in secret detention abroad by the United States. Human Rights Watch emphasizes that there is no doubt that secret detention facilities operated by the United States exist. The Bush Administration has cited, in speeches and in public documents, arrests of several terrorist suspects now held in unknown locations. Some of the detainees cited by the administration include: Abu Zubaydah, a Palestinian arrested in Pakistan in March 2002; ... Abd al-Rahim al-Nashiri (also known as Abu Bilal al-Makki), arrested in United Arab Emirates in November 2002 .... Human Rights Watch urges the United Nations and relevant European Union bodies to launch investigations to determine which countries have been or are being used by the United States for transiting and detaining incommunicado prisoners. The U.S. Congress should also convene hearings on the allegations and demand that the Bush administration account for secret detainees, explain the legal basis for their continued detention, and make arrangements to screen detainees to determine their legal status under domestic and international law. We welcome the decision by the Legal Affairs Committee of the Parliamentary Assembly of the Council of Europe to examine the existence of U.S.-run detention centers in Council of Europe member states. We also urge the European Union, including the EU Counter-Terrorism Coordinator, to further investigate allegations and publish its findings. ” 11. Human Rights Watch – List of “ Ghost Prisoners ” Possibly in CIA Custody of 30 November 2005 228. On 30 November 2005 the Human Rights Watch published a “ List of ‘ Ghost Prisoners ’ Possibly in CIA Custody ” ( “ the 2005 HRW List ” ), which included the applicant. The document reads, in so far as relevant, as follows: “ The following is a list of persons believed to be in U.S. custody as ‘ ghost detainees ’ – detainees who are not given any legal rights or access to counsel, and who are likely not reported to or seen by the International Committee of the Red Cross. The list is compiled from media reports, public statements by government officials, and from other information obtained by Human Rights Watch. Human Rights Watch does not consider this list to be complete: there are likely other ‘ ghost detainees ’ held by the United States. Under international law, enforced disappearances occur when persons are deprived of their liberty, and the detaining authority refuses to disclose their fate or whereabouts, or refuses to acknowledge their detention, which places the detainees outside the protection of the law. International treaties ratified by the United States prohibit incommunicado detention of persons in secret locations. Many of the detainees listed below are suspected of involvement in serious crimes, including the September 11, 2001 attacks; the 1998 U.S. Embassy bombings in Kenya and Tanzania; and the 2002 bombing at two nightclubs in Bali, Indonesia. ... Yet none on this list has been arraigned or criminally charged, and government officials, speaking anonymously to journalists, have suggested that some detainees have been tortured or seriously mistreated in custody. The current location of these prisoners is unknown. List, as of December 1, 2005: ... 4. Abu Zubaydah (also known as Zain al-Abidin Muhammad Husain). Reportedly arrested in March 2002, Faisalabad, Pakistan. Palestinian (born in Saudi Arabia), suspected senior al-Qaeda operational planner. Listed as captured in ‘ George W. Bush: Record of Achievement. Waging and Winning the War on Terror ’, available on the White House website. Previously listed as ‘ disappeared ’ by Human Rights Watch. ... 9. Abd al-Rahim al-Nashiri (or Abdulrahim Mohammad Abda al-Nasheri, aka Abu Bilal al-Makki or Mullah Ahmad Belal). Reportedly arrested in November 2002, United Arab Emirates. Saudi or Yemeni, suspected al-Qaeda chief of operations in the Persian Gulf, and suspected planner of the USS Cole bombing, and attack on the French oil tanker, Limburg. Listed in ‘ George W. Bush: Record of Achievement, Waging and Winning the War on Terror ’, available on the White House website. Previously listed as ‘ disappeared ’ by Human Rights Watch. ... ” VIII. SELECTED MEDIA REPORTS AND ARTICLES 229. The applicant and third-party interveners submitted a considerable number of articles and reports published in international and Romanian media, which raised concerns about alleged rendition, secret detentions and ill-treatment in US-run detention facilities for terrorist-suspects captured in the context of the “ war on terror ”. They also submitted materials concerning allegations of the CIA having a secret detention facility in Romania and rendition flights operating on Romanian territory. A summary of most relevant sources is given below. A. International media 230. On 11 March 2002 The Washington Post published an article by R. Chandrasekaran and P. Finn entitled “ US Behind Secret Transfer of Terror Suspects ” which read, in so far as relevant, as follows: “ Since Sept. 11, the U.S. government has secretly transported dozens of people suspected of links to terrorists to countries other than the United States, bypassing extradition procedures and legal formalities, according to Western diplomats and intelligence sources. The suspects have been taken to countries, including Egypt and Jordan, whose intelligence services have close ties to the CIA and where they can be subjected to interrogation tactics Including torture and threats to families – that are illegal in the United States, the sources said. In some cases, U.S. intelligence agents remain closely involved in the interrogation, the sources said. After September 11, these sorts of movements have been occurring all the time ’, a US diplomat told the Washington Post. ‘ It allows us to get information from terrorists in a way we can ’ t do on US soil ’. ... U.S. involvement in seizing terrorism suspects in third countries and shipping them with few or no legal proceedings to the United States or other countries – known as ‘ rendition ’ – is not new. In recent years, U.S. agents, working with Egyptian intelligence and local authorities in Africa, Central Asia and the Balkans, have sent dozens of suspected Islamic extremists to Cairo or taken them to the United States, according to U.S. officials, Egyptian lawyers and human rights groups. ... ” 231. On 12 March 2002 The Guardian published an article written by D. Campbell, entitled “ US sends suspects to face torture ” which was to an extent based on the above article in The Washington Post. It read, in so far as relevant, as follows: “ The US has been secretly sending prisoners suspected of al-Qaida connections to countries where torture during interrogation is legal, according to US diplomatic and intelligence sources. Prisoners moved to such countries as Egypt and Jordan can be subjected to torture and threats to their families to extract information sought by the US in the wake of the September 11 attacks. The normal extradition procedures have been bypassed in the transportation of dozens of prisoners suspected of terrorist connections, according to a report in the Washington Post. The suspects have been taken to countries where the CIA has close ties with the local intelligence services and where torture is permitted. According to the report, US intelligence agents have been involved in a number of interrogations. A CIA spokesman yesterday said the agency had no comment on the allegations. A state department spokesman said the US had been ‘ working very closely with other countries ’ – it ’ s a global fight against terrorism ’. ... The seizing of suspects and taking them to a third country without due process of law is known as ‘ rendition ’. The reason for sending a suspect to a third country rather than to the US, according to the diplomats, is an attempt to avoid highly publicised cases that could lead to a further backlash from Islamist extremists. ... The US has been criticised by some of its European allies over the detention of prisoners at Camp X-Ray in Guantánamo Bay, Cuba. After the Pentagon released pictures of blindfolded prisoners kneeling on the ground, the defence secretary, Donald Rumsfeld, was forced to defend the conditions in which they were being held. Unsuccessful attempts have been made by civil rights lawyers based in Los Angeles to have the Camp X-Ray prisoners either charged in US courts or treated as prisoners of war. The US administration has resisted such moves, arguing that those detained, both Taliban fighters and members of al-Qaida, were not entitled to be regarded as prisoners of war because they were terrorists rather than soldiers and were not part of a recognised, uniformed army. ” 232. On 2 April 2002 ABC News reported: “ US officials have been discussing whether Zubaydah should be sent to countries, including Egypt or Jordan, where much more aggressive interrogation techniques are permitted. But such a move would directly raise a question of torture ... Officials have also discussed sending Zubaydah to Guantánamo Bay or to a military ship at sea. Sources say it ’ s imperative to keep him isolated from other detainees as part of psychological warfare, and even more aggressive tools may be used. ” 233. Two Associated Press reports of 2 April 2002 stated: “ Zubaydah is in US custody, but it ’ s unclear whether he remains in Pakistan, is among 20 al Qaeda suspects to be sent to the US naval station at Guantánamo Bay, Cuba, or will be transported to a separate location. ” and: “ US officials would not say where he was being held. But they did say he was not expected in the United States any time soon. He could eventually be held in Afghanistan, aboard a Navy ship, at the US base in Guantánamo Bay, Cuba, or transferred to a third country. ” 234. On 26 December 2002 The Washington Post published a detailed article entitled “ Stress and Duress Tactics Used on Terrorism Suspects Held in Secret Overseas Facilities ”. The article referred explicitly to the practice of rendition and summarised the situation as follows: “ a brass-knuckled quest for information, often in concert with allies of dubious human rights reputation; in which the traditional lines between right and wrong, legal and inhumane, are evolving and blurred. ... ‘ If you don ’ t violate someone ’ s human rights some of the time; you probably aren ’ t doing your job, ’ said one official who has supervised the capture and transfer of accused terrorists. ” The article also noted that “ there were a number of secret detention centers overseas where US due process does not apply ... where the CIA undertakes or manages the interrogation of suspected terrorists ... off-limits to outsiders and often even to other government agencies. In addition to Bagram and Diego Garcia, the CIA has other detention centres overseas and often uses the facilities of foreign intelligence services ”. The Washington Post also gave details on the rendition process: “ The takedown teams often ‘ package ’ prisoners for transport, fitting them with hoods and gags, and binding them to stretchers with duct tape. ” The article received worldwide exposure. In the first weeks of 2003 it was, among other things, the subject of an editorial in the Economist and a statement by the World Organisation against Torture. 235. On 28 February 2005 the Newsweek published an article by M. Hirsch, M. Hosenball and J. Barry, entitled “ Aboard Air CIA ”, stating that the CIA ran a secret charter service, shuttling detainees to interrogation facilities worldwide. While the article mainly gave an account of Mr El ‑ Masri capture, rendition, secret detention and further plight in CIA hands, Romania was for the first time mentioned as a transit country for the CIA planes suspected of transporting terrorist-suspects in the context of the flight N313P, Boeing 737, its rendition mission of 16-28 January 2004 and landing in Romania (see also paragraphs 326-328 below). It also stated: “ ... NEWSWEEK has obtained previously unpublished flight plans indicating the agency has been operating a Boeing 737 as part of a top-secret global charter servicing clandestine interrogation facilities used in the war on terror. And the Boeing ’ s flight information, detailed to the day, seems to confirm Masri ’ s tale of abduction. ... The evidence backing up Masri ’ s account of being ‘ snatched ’ by American operatives is only the latest blow to the CIA in the ongoing detention-abuse scandal. Together with previously disclosed flight plans of a smaller Gulfstream V jet, the Boeing 737 ’ s travels are further evidence that a global ‘ ghost ’ prison system, where terror suspects are secretly interrogated, is being operated by the CIA. Several of the Gulfstream flights allegedly correlate with other ‘ renditions ’, the controversial practice of secretly spiriting suspects to other countries without due process. ... ” 236. On 2 November 2005 The Washington Post reported that the United States had used secret detention facilities in Eastern Europe and elsewhere to hold illegally persons suspected of terrorism. The article, entitled “ CIA Holds Terror Suspects in Secret Prisons ” cited sources from the US Government, notably the CIA, but no specific locations in Eastern Europe were identified. It was written by Dana Priest, an American journalist. She referred to the countries involved as “ Eastern-European countries ”. It read, in so far as relevant, as follows: “ The CIA has been hiding and interrogating some of its most important al Qaeda captives at a Soviet-era compound in Eastern Europe, according to U.S. and foreign officials familiar with the arrangement. The secret facility is part of a covert prison system set up by the CIA nearly four years ago that at various times has included sites in eight countries, including Thailand, Afghanistan and several democracies in Eastern Europe, as well as a small center at the Guantánamo Bay prison in Cuba, according to current and former intelligence officials and diplomats from three continents. The hidden global internment network is a central element in the CIA ’ s unconventional war on terrorism. It depends on the cooperation of foreign intelligence services, and on keeping even basic information about the system secret from the public, foreign officials and nearly all members of Congress charged with overseeing the CIA ’ s covert actions. The existence and locations of the facilities – referred to as ‘ black sites ’ in classified White House, CIA, Justice Department and congressional documents – are known to only a handful of officials in the United States and, usually, only to the president and a few top intelligence officers in each host country. ... Although the CIA will not acknowledge details of its system, intelligence officials defend the agency ’ s approach, arguing that the successful defense of the country requires that the agency be empowered to hold and interrogate suspected terrorists for as long as necessary and without restrictions imposed by the U.S. legal system or even by the military tribunals established for prisoners held at Guantánamo Bay. The Washington Post is not publishing the names of the Eastern European countries involved in the covert program, at the request of senior U.S. officials. They argued that the disclosure might disrupt counterterrorism efforts in those countries and elsewhere and could make them targets of possible terrorist retaliation. ... It is illegal for the government to hold prisoners in such isolation in secret prisons in the United States, which is why the CIA placed them overseas, according to several former and current intelligence officials and other U.S. government officials. Legal experts and intelligence officials said that the CIA ’ s internment practices also would be considered illegal under the laws of several host countries, where detainees have rights to have a lawyer or to mount a defense against allegations of wrongdoing. Host countries have signed the U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, as has the United States. Yet CIA interrogators in the overseas sites are permitted to use the CIA ’ s approved ‘ Enhanced Interrogation Techniques ’, some of which are prohibited by the U.N. convention and by U.S. military law. They include tactics such as ‘ waterboarding ’, in which a prisoner is made to believe he or she is drowning. ... The contours of the CIA ’ s detention program have emerged in bits and pieces over the past two years. Parliaments in Canada, Italy, France, Sweden and the Netherlands have opened inquiries into alleged CIA operations that secretly captured their citizens or legal residents and transferred them to the agency ’ s prisons. More than 100 suspected terrorists have been sent by the CIA into the covert system, according to current and former U.S. intelligence officials and foreign sources. This figure, a rough estimate based on information from sources who said their knowledge of the numbers was incomplete, does not include prisoners picked up in Iraq. The detainees break down roughly into two classes, the sources said. About 30 are considered major terrorism suspects and have been held under the highest level of secrecy at black sites financed by the CIA and managed by agency personnel, including those in Eastern Europe and elsewhere, according to current and former intelligence officers and two other U.S. government officials. Two locations in this category – in Thailand and on the grounds of the military prison at Guantánamo Bay – were closed in 2003 and 2004, respectively. A second tier – which these sources believe includes more than 70 detainees – is a group considered less important, with less direct involvement in terrorism and having limited intelligence value. These prisoners, some of whom were originally taken to black sites, are delivered to intelligence services in Egypt, Jordan, Morocco, Afghanistan and other countries, a process sometimes known as ‘ rendition ’. While the first-tier black sites are run by CIA officers, the jails in these countries are operated by the host nations, with CIA financial assistance and, sometimes, direction. ... The top 30 al Qaeda prisoners exist in complete isolation from the outside world. Kept in dark, sometimes underground cells, they have no recognized legal rights, and no one outside the CIA is allowed to talk with or even see them, or to otherwise verify their well-being, said current and former and U.S. and foreign government and intelligence officials. ... The Eastern European countries that the CIA has persuaded to hide al Qaeda captives are democracies that have embraced the rule of law and individual rights after decades of Soviet domination. Each has been trying to cleanse its intelligence services of operatives who have worked on behalf of others – mainly Russia and organized crime. ... By mid-2002, the CIA had worked out secret black-site deals with two countries, including Thailand and one Eastern European nation, current and former officials said. An estimated $100 million was tucked inside the classified annex of the first supplemental Afghanistan appropriation. ... ” 237. On 5 December 2005, ABC News published a report, by Brian Ross and Richard Esposito, entitled “ Sources Tell ABC News Top Al Qaeda Figures Held in Secret CIA Prisons – 10 Out of 11 High-Value Terror Leaders Subjected to ‘ Enhanced Interrogation Techniques ’ ” and listing the names of top al-Qaeda terrorist suspects held in Poland and Romania, including the applicant and Mr Abu Zubaydah. This report was available on the Internet for only a very short time; it was withdrawn from ABC ’ s webpage shortly thereafter following the intervention of lawyers on behalf of the network ’ s owners. At present, the content is again publicly available and reads, in so far as relevant, as follows: “ Two CIA secret prisons were operating in Eastern Europe until last month when they were shut down following Human Rights Watch reports of their existence in Poland and Romania. Current and former CIA officers speaking to ABC News on the condition of confidentiality say the United States scrambled to get all the suspects off European soil before Secretary of State Condoleezza Rice arrived there today. The officers say 11 top al Qaeda suspects have now been moved to a new CIA facility in the North African desert. CIA officials asked ABC News not to name the specific countries where the prisons were located, citing security concerns. The CIA declines to comment, but current and former intelligence officials tell ABC News that 11 top al Qaeda figures were all held at one point on a former Soviet air base in one Eastern European country. Several of them were later moved to a second Eastern European country. All but one of these 11 high-value al Qaeda prisoners were subjected to the harshest interrogation techniques in the CIA ’ s secret arsenal, the so-called ‘ enhanced interrogation techniques ’ authorized for use by about 14 CIA officers and first reported by ABC News on Nov. 18. Rice today avoided directly answering the question of secret prisons in remarks made on her departure for Europe, where the issue of secret prisons and secret flights has caused a furor. Without mentioning any country by name, Rice acknowledged special handling for certain terrorists. ‘ The captured terrorists of the 21st century do not fit easily into traditional systems of criminal or military justice, which were designed for different needs. We have had to adapt ’, Rice said. The CIA has used a small fleet of private jets to move top al Qaeda suspects from Afghanistan and the Middle East to Eastern Europe, where Human Rights Watch has identified Poland and Romania as the countries that housed secret sites. But Polish Defense Minister Radosław Sikorski told ABC Chief Investigative Correspondent Brian Ross today: ‘ My president has said there is no truth in these reports. ’ Ross asked: ‘ Do you know otherwise, sir, are you aware of these sites being shut down in the last few weeks, operating on a base under your direct control? ’ Sikorski answered, ‘ I think this is as much as I can tell you about this ’. In Romania, where the secret prison was possibly at a military base visited last year by Defense Secretary Donald Rumsfeld, the new Romanian prime minister said today there is no evidence of a CIA site but that he will investigate. Sources tell ABC that the CIA ’ s secret prisons have existed since March 2002 when one was established in Thailand to house the first important al Qaeda target captured. Sources tell ABC that the approval for another secret prison was granted last year by a North African nation. Sources tell ABC News that the CIA has a related system of secretly returning other prisoners to their home country when they have outlived their usefulness to the United States. These same sources also tell ABC News that U.S. intelligence also ships some ‘ unlawful combatants ’ to countries that use interrogation techniques harsher than any authorized for use by U.S. intelligence officers. They say that Jordan, Syria, Morocco and Egypt were among the nations used in order to extract confessions quickly using techniques harsher than those authorized for use by U.S. intelligence officers. These prisoners were not necessarily citizens of those nations. According to sources directly involved in setting up the CIA secret prison system, it began with the capture of Abu Zabayda in Pakistan. After treatment there for gunshot wounds, he was whisked by the CIA to Thailand where he was housed in a small, disused warehouse on an active airbase. There, his cell was kept under 24-hour closed circuit TV surveillance and his life-threatening wounds were tended to by a CIA doctor specially sent from Langley headquarters to assure Abu Zubaydah was given proper care, sources said. Once healthy, he was slapped, grabbed, made to stand long hours in a cold cell, and finally handcuffed and strapped feet up to a water board until after 0.31 seconds he begged for mercy and began to cooperate. ... ” 238. On 8 December 2011 The Independent published an article written by A. Goldman and M. Apuzzo, entitled “ Inside Romania ’ s secret CIA prison ”. The article suggested that the building used by the National Registry Office for Classified Information ( Oficiul Registrului Naţional al Informaţiilor Secrete de Stat – “ ORNISS ” ) had hosted the CIA secret detention site in Romania. The relevant parts read: “ In northern Bucharest, in a busy residential neighbourhood minutes from the heart of the capital city, is a secret the Romanian government has long tried to protect. For years, the CIA used a government building — codenamed ‘ Bright Light ’ — as a makeshift prison for its most valuable detainees. ... The existence of a CIA prison in Romania has been widely reported, but its location has never been made public. The Associated Press and German public television ARD located the former prison and learned details of the facility where harsh interrogation tactics were used. ARD ’ s programme on the CIA prison is set to air today. The Romanian prison was part of a network of so-called black sites that the CIA operated and controlled overseas in Thailand, Lithuania and Poland. All the prisons were closed by May 2006, and the CIA ’ s detention and interrogation programme ended in 2009. Unlike the CIA ’ s facility in Lithuania ’ s countryside or the one hidden in a Polish military installation, the CIA ’ s prison in Romania was not in a remote location. It was hidden in plain sight, a couple blocks off a major boulevard on a street lined with trees and homes, along busy train tracks. The building is used as the National Registry Office for Classified Information, which is also known as ORNISS. Classified information from NATO and the European Union is stored there. Former intelligence officials both described the location of the prison and identified pictures of the building. In an interview at the building in November [2011], senior ORNISS official Adrian Camarasan said the basement is one of the most secure rooms in all of Romania. But he said Americans never ran a prison there. ‘ No, no. Impossible, impossible, ’ he said in an ARD interview for its ‘ Panorama news broadcast, as a security official monitored the interview. The CIA prison opened for business in the autumn of 2003, after the CIA decided to empty the black site in Poland, according to former US officials. Shuttling detainees into the facility without being seen was relatively easy. After flying into Bucharest, the detainees were brought to the site in vans. CIA operatives then drove down a side road and entered the compound through a rear gate that led to the actual prison. The detainees could then be unloaded and whisked into the ground floor of the prison and into the basement. The basement consisted of six prefabricated cells, each with a clock and arrow pointing to Mecca, the officials said. The cells were on springs, keeping them slightly off balance and causing disorientation among some detainees. The CIA declined to comment on the prison. ... Former US officials said that because the building was a government installation, it provided excellent cover. The prison didn ’ t need heavy security because area residents knew it was owned by the government. People wouldn ’ t be inclined to snoop in post - communist Romania, with its extensive security apparatus known for spying on the country ’ s own citizens. Human rights activists have urged the Eastern European countries to investigate the roles their governments played in hosting the prisons in which interrogation techniques such as waterboarding were used. Officials from these countries continue to deny these prisons ever existed. ‘ We know of the criticism, but we have no knowledge of this subject ’, Romanian President Traian Băsescu said in a September [2011] interview with AP. ... The Romanian and Lithuanian sites were eventually closed in the first half of 2006 before CIA Director Porter Goss left the job. Some of the detainees were taken to Kabul, where the CIA could legally hold them before they were sent to Guantánamo. Others were sent back to their native countries. ” B. Romanian media 239. On 22 January 2002 Adevărul, a Romanian daily newspaper based in Bucharest, published an article entitled “ Treatment applied to hostages in Afghanistan – ‘ inhuman ’ which read, in so far as relevant, as follows: “ British officials who made a visit to the prison at Guantánamo at the end of last week presented a report to the British government on the manner in which Taliban and Al-Qaida prisoners are treated. The authorities in London are going to study it in detail given that criticism towards Americans has grown in recent days about the treatment applied to prisoners at Guantánamo. Films depicting prisoners blindfolded and chained by their hands and feet, with masks covering their mouth and nose and kneeling before their guards, have led to public concern and condemnation in many countries of the world. Great Britain, the main ally of the USA, was among the first countries in which politicians referred to the images as ‘ shocking ’ and the manner in which prisoners were treated as ‘ monstrous ’. Following pressure from public opinion, the British Foreign Secretary, Jack Straw has asked the Americans to treat hostages from Afghanistan ‘ humanely ’. The USA stated that the images presented depicted prisoners at their time of arrival at Guantánamo and are not representative of how they are treated in prison on a daily basis. For now, the officials from London who visited the prison at Guantánamo stated that the three Britons being held there have not formulated ‘ any complaint ’ in relation to the manner in which they are treated. Disputes between the Americans and British on this topic are the first visible sign of dissent between the two allies since the start of the anti-terrorist campaign. According to British officials, the 144 prisoners who have already arrived at Guantánamo are housed in spaces that look like cages, separated by wire. London is of the view that this kind of ‘ degrading ’ treatment ” is ‘ counterproductive ’, and diminishes the chances of the secret services of obtaining information on potential terrorists from the Muslim community. ... ” 240. On 5 February 2002 Adevărul published an article “ The treatment of prisoners at Guantánamo Bay attracts hundreds of new recruits to our ranks ”, which read, in so far as relevant, as follows: “ The treatment of Taliban and Al-Qaida detainees by American troops at the X-Ray detention centre of the Guantánamo Bay American military base, Cuba ‘ will lead to a considerable increase in the number of recruits ’ that will join Islamic terrorist groups, stated Hassan Yousef on Sunday, the leader of Hamas, the extremist organization found on the list of targets in the war on terrorism drawn up by the United States. ... ‘ The Mirror ’, after the international press published a photograph at the end of last week of a detainee taken to interrogation strapped to a stretcher. ... Questioned even from the beginning by European allies, the treatment applied to prisoners captured by US forces in Afghanistan, creates new waves these days both in Europe and overseas. After the former American Secretary of State, Madeline Albright criticized the manner in which the Bush administration decided to treat Guantánamo Bay prisoners (Washington does not consider that the status of prisoner of war applies to Al-Qaida mercenaries). The latest spark to rekindle the controversy about the X-Ray detention center, the picture shown here, caused a powerful storm in Great Britain. On Sunday, Prime Minister Tony Blair made a fierce attack on the weekly newspaper ‘ The Mail on Sunday ’ accusing it of undermining the war on terrorism after this newspaper published an article on its first page in which it suggested that American investigators had interrogated detainees who were unconscious, or in other words, under the influence of drugs. According to experts however, the fact that the photographed detainee had his knees bent is proof that he was conscious at the time that he was photographed. ... ” 241. On 25 March 2002 Adevărul published an article entitled “ ‘ American Taliban ’ mistreated by authorities ” which read, in so far as relevant, as follows: “ The ‘ American Taliban ’ John Walker Lindh has been mistreated by American authorities during the time he has been in detention, stated his lawyers in a document sent to the judge, reported newspaper ‘ The Los Angeles Times ’. ‘ The American Taliban ’, John Walker Lindh, stated in a document submitted to the Court that he had been mistreated by American Authorities during the time he has spent in detention. John Walker Lindh, aged 21 years of age, was captured in the North of Afghanistan. Lindh ‘ was blindfolded, and his handcuffs were so tight that they stopped his blood circulation ’, his lawyers added, who claimed that American soldiers ‘ threatened him with death and torture ’. He was given very little food and did not have the right to receive medical care. The defense claimed that ‘ The American Taliban ’ had his clothes cut up and remained ‘ completely naked ’ and was transported ‘ in a metal transport container ’ where there was no source of heat or lighting. ” 242. On 27 December 2002 Evenimentul Zilei, a Romanian newspaper based in Bucharestm published an article entitled “ Torture at the CIA? ” which read, in so far as relevant: “ Investigators from the Central Intelligence Agency of the United States (CIA) used stressful and violent interrogation techniques against enemies captured in Afghanistan, that came somewhere between the ‘ boundary of legal and inhuman ’ writes The Washington Post newspaper. The prestigious American newspaper describes metal containers which it says were secret CIA interrogation centers at the Bagram airbase which was the Headquarters of the American forces involved in operations to capture members of al-Qaeda and Taliban leaders. Prisoners who refused to cooperate were kept kneeling for several hours with their eyes covered with black cloth or by tinted glasses. On other occasions, prisoners were forced to adopt strange or painful positions and being also deprived of rest – ‘ were subject to a process known by the technical name ‘ stress and endurance ’. ... The CIA refrained from commenting on the article that appeared in The Washington Post. According to the figures begrudgingly provided by the American authorities, approximately 3000 members have al-Qaeda have been arrested until now, of which 625 are being held at Guantánamo Bay and approximately 100 more have been ‘ transferred ’ to other countries. A few thousand prisoners were arrested and imprisoned with assistance from the United States in countries known and recognized for their brutal treatment of prisoners. The Washington Post adds the fact that the Bush administration applied this kind of policy which was contrary to publicly expressed values, because it had doubts that the American public would support its position. ” 243. On 20 May 2003 Evenimentul Zilei published an article entitled “ American torture using heavy metal ” which read, in so far as relevant, as follows: “ American troops in Iraq used a refined form of torture to break the resistance of prisoners and make them talk, according to American magazine Newsweek. Stubborn prisoners were ‘ bombarded ’ with heavy metal music played at maximum volume over long periods of time until their nerves gave out. ... The idea is to break a person ’ s resistance by upsetting him with music that an Iraqi considers to be offensive from a cultural point of view, explained Sergeant Mark Hadsell. ‘ These people never listened to heavy metal in their life and they can ’ t stand it ’, he added. ... Iraqis tortured in war camps These revelations come two days after Amnesty International representatives returning from Iraq stated that many former prisoners, the majority of them civilians, complained that they have been tortured during their detention in camps set up by British and American troops. At least 20 prisoners stated that they were beaten hours on end, and another, a Saudi citizen, said that he was subjected to electric shocks. The Amnesty International Investigation is continuing, with a manager from the organization claiming that we are certainly talking about cases of torture. At the time that the report is completed, Amnesty International will ask American and British authorities to reply to the accusations made by prisoners. ” C. Der Spiegel ’ s publications in 2014 and 2015 244. On 13 December 2014 Spiegel Online published an article entitled “ Black Site in Romania: Former spy chief admits existence of CIA camp ” which read as follows: “ There was at least one CIA prison in Romania – that is what the US torture report says. Politicians of that country had always denied this. Now the former Romanian spy chief speaks about a ‘ transit centre ’ of the US secret service. Romanian politicians denied it for almost a decade – but now there is, for the first time, a confession: there were CIA centres in Romania, in which captives were held and possibly also tortured. The former Romanian spy chief Ioan Talpeş told SPIEGEL ONLINE that there were one or two locations in Romania, at which the CIA ‘ probably held persons, who were subjected to inhuman treatment ’. This was the case in the period from 2003 to 2006. Talpeş had previously confirmed the existence of ‘ CIA transit camp ’, as he calls them, in the Bucharest daily ‘ Adevărul ’. Talpeş is 70 years old now. From 1992 to 1997 he led the Romanian secret service abroad, SIE, and from 2000 to 2004 he served as the Chief of the Presidential Administration as well as the head of the National Security Department. Talpeş told SPIEGEL ONLINE that he had, from 2003 onwards, continued discussions with officials of the CIA and the US military about a more intense cooperation. In the context of these discussions it was agreed that the CIA could carry out its own activities in certain locations. ‘ It was up to the Americans what they did in these places ’ He did not know where this was and Romania was, expressly, not interested in what the CIA was doing there. The country wanted to prove its readiness to cooperate, Talpeş said, because it sought NATO-membership. ‘ It was up to the Americans what they did in these places ’, he said. First and foremost thanks to US advocacy, Romania was admitted into NATO in 2004. Dick Marty, the Council of Europe special investigator concerning the secret CIA prisons, had accused Romania in 2005/2006 of hosting illegal CIA prisons for terrorism suspects on its territory. Amnesty International had previously made similar allegations. Among others, the key planner of 9/11, Khalid Sheikh Mohammed, is said to have been held there. Romanian politicians, including Presidents Ion Iliescu (in office from 2000 to 2004) and Traian Băsescu (in office from 2004 to 2014) had always denied this. A commission of inquiry of the Romanian parliament reported in 2006: there were no CIA prisons in the country and no CIA captives were held there or transferred to other countries on transit flights via Romania. Since 2001, the US army has had an air base close to Kogălniceanu in the South East of Romania. Apart from that base, the airports in Craiova in Southern Romania and in Temeswar in Western Romania are reported to have been used for the transport of CIA captives. Already in 2002 Romania signed an agreement with the USA, according to which the country would not extradite US soldiers to the International Criminal Court. Even after the publication of the CIA torture report, in which a Romanian CIA prison is mentioned as a ‘ black site ’, Romanian politicians denied its existence. Victor Ponta, the head of the government, declined to comment on the CIA report. The former Head-of-State Iliescu said on Wednesday that he had had no knowledge of a CIA prison. However, Ioan Talpeş told SPIEGEL ONLINE that he had informed President Iliescu in 2003 and 2004 that the CIA carried out ‘ certain activities ’ on Romanian territory. At that time, Talpeş continued, he himself did not think that the CIA could possibly torture captives. Therefore, ‘ no major significance ’ was attributed to information about the activities of the US secret service in Romania. In response to the question why he had not shared his knowledge when the Council of Europe special investigator, Dick Marty, presented his report, Talpeş stated that he had been unable to speak for as long as the competent US authorities had not expressed themselves on the matter. In this respect he blamed Romanian politicians for denying the existence of the transit camps. ” 245. On 22 April 2015 Spiegel Online published an article entitled “ Torture in Romania: Former Head-of-State Iliescu admits existence of CIA prison ” which read: “ The CIA tortured in Romania – that is an open secret. Only the country ’ s officials never wanted to acknowledge that. Now former Head-of-State Iliescu states in SPIEGEL ONLINE: he left a location to the secret service. It is hardly disputed any longer that the CIA entertained one or more secret prisons in Romania following the attacks of 11 September 2001. The CIA report on torture of last December speaks, in a somewhat cryptic way, of ‘ Detention Site Black ’. Several of the most important CIA captives, among them the key planner of 9/11, Khalid Sheikh Mohammed, are said to have been held and tortured in Romania between 2002 and 2006. Despite numerous indications, Romanian officials for years vehemently denied that there had been secret CIA prisons on the country ’ s territory. Now, the late confession concerning the Romanian ‘ Detention Site ’ comes from nobody less than the former Head-of-State Ion Iliescu, who was in office from 2000 to 2004. In an interview with SPIEGEL ONLINE, Iliescu stated that around the turn of the year 2002/2003, ‘ our US allies asked us for a site ’. He, as Head-of-State, did, in principle, grant this request. The details were taken care of by Ioan Talpeş, who, at the time, was the head of the National Security Department and the chief of the Presidential Administration. By virtue of this statement, the 85 year-old Iliescu becomes the second Head-of-State - following the former Polish Head-of-State Aleksander Kwaśniewski – to admit the former existence of a CIA prison on behalf of his country. Iliescu explicitly wants to speak of a location/site ( ‘ Standort ’ ) – he claims not to have known of a prison. ‘ It was about a gesture of courtesy ahead of our accession to NATO ’, Iliescu told SPIEGEL ONLINE. ‘ We did not interfere with the activities of the USA on this site. This request seemed like a minor issue to me as the Head-of-State. We were allies, we went to war together in Afghanistan and in the Middle East. Therefore, I did not go into detail when our allies requested a specific site in Romania ’. Had he known more at that time, Iliescu continued, the request would ‘ of course not ’ have been responded to positively. ‘ We learned from this experience to be more attentive in relation to such requests in the future and to ponder more scrupulously ’. Iliescu gave the CIA ‘ plenty of rope ’ Talpeş, the former chief of Iliescu ’ s Presidential Administration, had previously led the Romanian secret service abroad, SIE. Vis-à-vis SPIEGEL ONLINE he admitted already last year, as the first Romanian official, the existence of ‘ CIA transit centres ’. Talpeş also confirmed Iliescu ’ s statements now. He had received a request from a representative of the CIA in Romania at the turn of the year 2002/2003 for premises, which the US secret service needed for its own activities. Iliescu gave him ‘ plenty of rope ’ to take care of this request. He arranged for a building in Bucharest to be given to the CIA. This building was used by the CIA from 2003 to 2006. It did no longer exist. He would not reveal where exactly this building was located. Talpeş thereby corrected his earlier statement that he did not know the location of the CIA transit centres. He now states that the only thing he did not know, was whether the CIA also used the US air base in Kogălniceanu in South East Romania. Also, he never visited any of the ‘ CIA sites ’ personally. With regard to the premises in Bucharest, he was aware that ‘ the matter [could] become dangerous ’. Therefore, he explicitly told the CIA representatives that Romania did not want to know anything about the activities on these premises. At the time, he wanted to prove Romania ’ s loyalty to the alliance in the period of the NATO accession through this measure. The statements by Iliescu and Talpeş confirm the 2006/2007 reports by former special investigator of the Council of Europe concerning the secret CIA prisons, Dick Marty. Marty had, already at that time, accused Romania of hosting secret CIA prisons on its territory. Romanian officials and politicians, among them Iliescu, had disputed the allegations. According to Marty ’ s 2007 report, at least five high-ranking Romanian officials were informed about the existence of the secret CIA prisons. Besides Iliescu and Talpeş this included the former Head of State Traian Băsescu, who was in office from 2004 to 2014. Băsescu did not want to comment on the matter following a query from SPIEGEL ONLINE. ‘ We did not have any clues back then ’ In 2008 a commission of inquiry of the Romanian parliament had concluded that there had not been any secret CIA prisons in Romania and that there was no information on CIA-flights or transports of captives. The former head of this commission, the politician of the Liberals and current Member of the European Parliament, Norica Nicolai, adheres to this statement to the present day. ‘ We did not have any clues back then ’, Nicolai told SPIEGEL ONLINE. However, the chairperson of the Romanian human rights organisation APADOR-CH, Maria Nicoleta Andreescu, describes the work of the commission as ‘ totally inefficient and frivolous ’. APADOR-CH, inter alia, represents the former CIA captive Abd al-Rahim al-Nashiri in Romania. He is said to have planned the attack on the destroyer U.S.S. ‘ Cole ’ in Yemen in October 2000. He was supposedly kept and tortured in Romania between 2003 and 2006. In 2012 Al-Nashiri took legal action against the State of Romania, which is still pending. The APADOR-CH chairperson Andreescu describes Iliescu ’ s present confession on CIA prisons in Romania as a ‘ very important and significant statement ’. ‘ If the Romanian State is willing to clarify the question of CIA prisons, then the public prosecutor must open criminal investigations following this statement ’, Andreescu said. ” IX. INTERNATIONAL INQUIRIES RELATING TO THE CIA SECRET DETENTION AND RENDITION OF SUSPECTED TERRORISTS IN EUROPE, INCLUDING ROMANIA A. Council of Europe 1. Procedure under Article 52 of the Convention 246. In November 2005, the Secretary General of the Council of Europe, Mr Terry Davis, acting under Article 52 of the Convention and in connection with reports of European collusion in secret rendition flights, sent a questionnaire to – at that time 45 – States Parties to the Convention, including Romania. The States were asked to explain how their internal law ensured the effective implementation of the Convention on four issues: 1) adequate controls over acts by foreign agents in their jurisdiction; 2) adequate safeguards to prevent, as regards any person in their jurisdiction, unacknowledged deprivation of liberty, including transport, with or without the involvement of foreign agents; 3) adequate responses (including effective investigations) to any alleged infringements of ECHR rights, notably in the context of deprivation of liberty, resulting from conduct of foreign agents; 4) whether since 1 January 2002 any public official had been involved, by action or omission, in such deprivation of liberty or transport of detainees; whether any official investigation was under way or had been completed. 247. The Romanian Government replied on an unspecified date denying that any unacknowledged deprivation of liberty or illegal transport of prisoners had taken place on Romanian territory. 248. On 1 March 2006 the Secretary General released his report on the use of his powers under Article 52 of the Convention (SG/Inf (2006) 5) of 28 February 2006 based on the official replies from the member states. 2. Parliamentary Assembly ’ s inquiry - the Marty Inquiry 249. On 1 November 2005 the PACE launched an investigation into allegations of secret detention facilities being run by the CIA in many member states, for which Swiss Senator Dick Marty was appointed rapporteur. On 15 December 2005 the Parliamentary Assembly requested an opinion from the Venice Commission on the legality of secret detention in the light of the member states ’ international legal obligations, particularly under the European Convention on Human Rights. (a) The 2006 Marty Report 250. On 7 June 2006 Senator Dick Marty presented to the PACE his first report prepared in the framework of the investigation launched on 1 November 2005 (see paragraph 24 9 above), revealing what he called a global “ spider ’ s web ” of CIA detentions and transfers and alleged collusion in this system by 14 Council of Europe member states, including Romania. The document, as published by the PACE, was entitled “ Alleged secret detentions and unlawful inter-state transfers of detainees involving Council of Europe member states ” (Doc. 10957) and commonly referred to as “ the 2006 Marty Report ”. 251. Chapter 1.3 of the 2006 Marty Report, entitled “ Secret CIA prisons in Europe? ” read, in so far as relevant, as follows: “ 7. This was the news item circulated in early November 2005 by the American NGO Human Rights Watch (HRW), The Washington Post and the ABC television channel. Whereas The Washington Post did not name specific countries hosting, or allegedly having hosted, such detention centres, simply referring generically to ‘ eastern European democracies ’, HRW reported that the countries in question are Poland and Romania. On 5 December 2005, ABC News in turn reported the existence of secret detention centres in Poland and Romania, which had apparently been closed following The Washington Post ’ s revelations. According to ABC, 11 suspects detained in these centres had been subjected to the harshest interrogation techniques (so-called enhanced interrogation techniques ’ ) before being transferred to CIA facilities in North Africa. 8. It is interesting to recall that this ABC report, confirming the use of secret detention camps in Poland and Romania by the CIA, was available on the Internet for only a very short time before being withdrawn following the intervention of lawyers on behalf of the network ’ s owners. The Washington Post subsequently admitted that it had been in possession of the names of the countries, but had refrained from naming them further to an agreement entered into with the authorities. It is thus established that considerable pressure was brought to bear to ensure that these countries were not named. It is unclear what arguments prevailed on the media outlets in question to convince them to comply. ... ” 252. Chapter 1.8, in paragraph 22, stated: “ 22. There is no formal evidence at this stage of the existence of secret CIA detention centres in Poland, Romania or other Council of Europe member states, even though serious indications continue to exist and grow stronger. Nevertheless, it is clear that an unspecified number of persons, deemed to be members or accomplices of terrorist movements, were arbitrarily and unlawfully arrested and/or detained and transported under the supervision of services acting in the name, or on behalf, of the American authorities. These incidents took place in airports and in European airspace, and were made possible either by seriously negligent monitoring or by the more or less active participation of one or more government departments of Council of Europe member states. ” 253. Chapter 2.6.1 referred to Romania. It stated, in so far as relevant, as follows: “ 56. Romania is thus far the only Council of Europe member State to be located on one of the rendition circuits we believe we have identified and which bears all the characteristics of a detainee transfer or drop-off point. The N313P rendition plane landed in Timișoara at 11.51 pm on 25 January 2004 and departed just 72 minutes later, at 1.03 am on 26 January 2004. I am grateful to the Romanian Civil Aeronautic Authority for confirming these flight movements. ... 58. We can likewise affirm that the plane was not carrying prisoners to further detention when it left Timișoara. Its next destination, after all, was Palma de Mallorca, a well-established “ staging point ”, also used for recuperation purposes in the midst of rendition circuits. 59. There is documentation in this instance that the passengers of the N313P plane, using US Government passports and apparently false identities, stayed in a hotel in Palma de Mallorca for two nights before returning to the United States. One can deduce that these passengers, in addition to the crew of the plane, comprised a CIA rendition team, the same team performing all renditions on this circuit. 60. The N313P plane stayed on the runway at Timișoara on the night of 25 January 2004 for barely one hour. Based on analysis of the flight capacity of N313P, a Boeing 737 jet, in line with typical flight behaviours of CIA planes, it is highly unlikely that the purpose of heading to Romania was to refuel. The plane had the capacity to reach Palma de Mallorca, just over 7 hours away, directly from Kabul that night – twice previously on the same circuit, it had already flown longer distances of 7 hours 53 minutes (Rabat to Kabul) and 7 hours 45 minutes (Kabul to Algiers). 61. It should be recalled that the rendition team stayed about 30 hours in Kabul after having ‘ rendered ’ Khaled El-Masri. Then, it flew to Romania on the same plane. Having eliminated other explanations – including that of a simple logistics flight, as the trip is a part of a well-established renditions circuit – the most likely hypothesis is that the purpose of this flight was to transport one or several detainees from Kabul to Romania. 62. We consider that while all these factual elements do not provide definitive evidence of secret detention centres, they do justify on their own a positive obligation to carry out a serious investigation, which the Romanian authorities do not seem to have done to date. ” 254. Chapter 6, entitled “ Attitude of governments ”, stated, among other things, the following: “ 230. It has to be said that most governments did not seem particularly eager to establish the alleged facts. The body of information gathered makes it unlikely that European states were completely unaware of what, in the context of the fight against international terrorism, was happening at some of their airports, in their airspace or at American bases located on their territory. Insofar as they did not know, they did not want to know. It is inconceivable that certain operations conducted by American services could have taken place without the active participation, or at least the collusion, of national intelligence services. If this were the case, one would be justified in seriously questioning the effectiveness, and therefore the legitimacy, of such services. The main concern of some governments was clearly to avoid disturbing their relationships with the United States, a crucial partner and ally. Other governments apparently work on the assumption that any information learned via their intelligence services is not supposed to be known. ” 255. In Chapter 8.2 concerning parliamentary investigations undertaken in certain member states, the report referred to Romania under the title “ Romania and “ the former Yugoslav Republic of Macedonia ” stating “ no parliamentary inquiry ” : “ 253. To my knowledge, no parliamentary inquiry whatsoever has taken place in either country, despite the particularly serious and concrete nature of the allegations made against both. ... ” 256. Chapter 11 contained conclusions. It stated, inter alia, the following: “ 280. Our analysis of the CIA rendition ’ programme has revealed a network that resembles a ‘ spider ’ s web ’ spun across the globe. The analysis is based on official information provided by national and international air traffic control authorities, as well as other information including from sources inside intelligence agencies, in particular the American. This ‘ web ’, shown in the graphic, is composed of several landing points, which we have subdivided into different categories, and which are linked up among themselves by civilian planes used by the CIA or military aircraft. ... 282. In two European countries only (Romania and Poland), there are two other landing points that remain to be explained. Whilst these do not fall into any of the categories described above, several indications lead us to believe that they are likely to form part of the ‘ rendition circuits ’. These landings therefore do not form part of the 98% of CIA flights that are used solely for logistical purposes, but rather belong to the 2% of flights that concern us the most. These corroborated facts strengthen the presumption – already based on other elements – that these landings are detainee drop-off points that are near to secret detention centres. ... 287. Whilst hard evidence, at least according to the strict meaning of the word, is still not forthcoming, a number of coherent and converging elements indicate that secret detention centres have indeed existed and unlawful inter-state transfers have taken place in Europe. I do not set myself up to act as a criminal court, because this would require evidence beyond reasonable doubt. My assessment rather reflects a conviction based upon careful examination of balance of probabilities, as well as upon logical deductions from clearly established facts. It is not intended to pronounce that the authorities of these countries are ‘ guilty ’ for having tolerated secret detention sites, but rather it is to hold them ‘ responsible ’ for failing to comply with the positive obligation to diligently investigate any serious allegation of fundamental rights violations. 288. In this sense, it must be stated that to date, the following member States could be held responsible, to varying degrees, which are not always settled definitively, for violations of the rights of specific persons identified below (respecting the chronological order as far as possible): - Sweden, in the cases of Ahmed Agiza and Mohamed Alzery; - Bosnia-Herzegovina, in the cases of Lakhdar Boumediene, Mohamed Nechle, Hadj Boudella, Belkacem Bensayah, Mustafa Ait Idir and Saber Lahmar (the ‘ Algerian six ’ ); - The United Kingdom in the cases of Bisher Al-Rawi, Jamil El-Banna and Binyam Mohamed; - Italy, in the cases of Abu Omar and Maher Arar; - ‘ The former Yugoslav Republic of Macedonia ’, in the case of Khaled El-Masri; - Germany, in the cases of Abu Omar, of the ‘ Algerian six ’, and Khaled El-Masri; - Turkey, in the case of the ‘ Algerian six ’. 289. Some of these above mentioned states, and others, could be held responsible for collusion – active or passive (in the sense of having tolerated or having been negligent in fulfilling the duty to supervise) - involving secret detention and unlawful inter-state transfers of a non-specified number of persons whose identity so far remains unknown: - Poland and Romania, concerning the running of secret detention centres; - Germany, Turkey, Spain and Cyprus for being ‘ staging points ’ for flights involving the unlawful transfer of detainees. ” (b) The 2007 Marty Report 257. On 11 June 2007 the PACE (Committee on Legal Affairs and Human Rights) adopted the second report prepared by Senator Marty ( “ the 2007 Marty Report ” ) (doc. 11302.rev.), revealing that high-value detainees had been held in Romania and in Poland in secret CIA detention centres during the period from 2002 to 2005. The report relied, inter alia, on the cross-referenced testimonies of over thirty serving and former members of intelligence services in the US and Europe, and on a new analysis of computer “ data strings ” from the international flight planning system. 258. The introductory remarks referring to the establishment of facts and evidence gathered, read, in so far as relevant: “ 7. There is now enough evidence to state that secret detention facilities run by the CIA did exist in Europe from 2003 to 2005, in particular in Poland and Romania. These two countries were already named in connection with secret detentions by Human Rights Watch in November 2005. At the explicit request of the American government, The Washington Post simply referred generically to ‘ eastern European democracies ’, although it was aware of the countries actually concerned. It should be noted that ABC did also name Poland and Romania in an item on its website, but their names were removed very quickly in circumstances which were explained in our previous report. We have also had clear and detailed confirmation from our own sources, in both the American intelligence services and the countries concerned, that the two countries did host secret detention centres under a special CIA programme established by the American administration in the aftermath of 11 September 2001 to ‘ kill, capture and detain ’ terrorist suspects deemed to be of ‘ high value ’. Our findings are further corroborated by flight data of which Poland, in particular, claims to be unaware and which we have been able to verify using various other documentary sources. 8. The secret detention facilities in Europe were run directly and exclusively by the CIA. To our knowledge, the local staff had no meaningful contact with the prisoners and performed purely logistical duties such as securing the outer perimeter. The local authorities were not supposed to be aware of the exact number or the identities of the prisoners who passed through the facilities – this was information they did not ‘ need to know. ’ While it is likely that very few people in the countries concerned, including in the governments themselves, knew of the existence of the centres, we have sufficient grounds to declare that the highest state authorities were aware of the CIA ’ s illegal activities on their territories. ... 10. In most cases, the acts took place with the requisite permissions, protections or active assistance of government agencies. We believe that the framework for such assistance was developed around NATO authorisations agreed on 4 October 2001, some of which are public and some of which remain secret. According to several concurring sources, these authorisations served as a platform for bilateral agreements, which – of course – also remain secret. 11. In our view, the countries implicated in these programmes have failed in their duty to establish the truth: the evidence of the existence of violations of fundamental human rights is concrete, reliable and corroborative. At the very least, it is such as to require the authorities concerned at last to order proper independent and thorough inquiries and stop obstructing the efforts under way in judicial and parliamentary bodies to establish the truth. International organisations, in particular the Council of Europe, the European Union and NATO, must give serious consideration to ways of avoiding similar abuses in future and ensuring compliance with the formal and binding commitments which states have entered into in terms of the protection of human rights and human dignity. 12. Without investigative powers or the necessary resources, our investigations were based solely on astute use of existing materials – for instance, the analysis of thousands of international flight records – and a network of sources established in numerous countries. With very modest means, we had to do real ‘ intelligence ’ work. We were able to establish contacts with people who had worked or still worked for the relevant authorities, in particular intelligence agencies. We have never based our conclusions on single statements and we have only used information that is confirmed by other, totally independent sources. Where possible we have cross-checked our information both in the European countries concerned and on the other side of the Atlantic or through objective documents or data. Clearly, our individual sources were only willing to talk to us on the condition of absolute anonymity. At the start of our investigations, the Committee on Legal Affairs and Human Rights authorised us to guarantee our contacts strict confidentiality where necessary. ... The individuals concerned are not prepared at present to testify in public, but some of them may be in the future if the circumstances were to change. ... ” 259. In paragraph 30 of the report it is stressed that “ the HVD programme ha[d] depended on extraordinary authorisations – unprecedented in nature and scope – at both national and international levels. In paragraphs 75 and 83 it was added that: “ 75. The need for unprecedented permissions, according to our sources, arose directly from the CIA ’ s resolve to lay greater emphasis on the paramilitary activities of its Counterterrorism Center in the pursuit of high-value targets, or HVTs. The US Government therefore had to seek means of forging intergovernmental partnerships with well-developed military components, rather than simply relying upon the existing liaison networks through which CIA agents had been working for decades. ... 83. Based upon my investigations, confirmed by multiple sources in the governmental and intelligence sectors of several countries, I consider that I can assert that the means to cater to the CIA ’ s key operational needs on a multilateral level were developed under the framework of the North Atlantic Treaty Organisation (NATO). .... ” 260. In paragraphs 112-122 the 2007 Marty Report referred to bilateral agreements between the US and certain countries to host “ black sites ” for high value detainees. This part of the document read, in so far as relevant, as follows: “ 112. Despite the importance of the multilateral NATO framework in creating the broad authorisation for US counter-terrorism operations, it is important to emphasise that the key arrangements for CIA clandestine operations in Europe were secured on a bilateral level. ... 115. The bilaterals at the top of this range are classified, highly guarded mandates for ‘ deep ’ forms of cooperation that afford – for example – ‘ infrastructure ’, ‘ material support and / or ‘ operational security ’ to the CIA ’ s covert programmes. This high-end category has been described to us as the intelligence sector equivalent of ‘ host nation ’ defence agreements – whereby one country is conducting operations it perceives as being vital to its own national security on another country ’ s territory. 116. The classified ‘ host nation ’ arrangements made to accommodate CIA ‘ black sites ’ in Council of Europe member states fall into the last of these categories. 117. The CIA brokered ‘ operating agreements ’ with the Governments of Poland and Romania to hold its High-Value Detainees (HVDs) in secret detention facilities on their respective territories. Poland and Romania agreed to provide the premises in which these facilities were established, the highest degrees of physical security and secrecy, and steadfast guarantees of non-interference. 118. We have not seen the text of any specific agreement that refers to the holding of High-Value Detainees in Poland or Romania. Indeed it is practically impossible to lay eyes on the classified documents in question or read the precise agreed language because of the rigours of the security-of-information regime, itself kept secret, by which these materials are protected. 119. However, we have spoken about the High-Value Detainee programme with multiple well-placed sources in the governments and intelligence services of several countries, including the United States, Poland and Romania. Several of these persons occupied positions of direct involvement in and/or influence over the negotiations that led to these bilateral arrangements being agreed upon. Several of them have knowledge at different levels of the operations of the HVD programme in Europe. 120. These persons spoke to us upon strict assurances of confidentiality, extended to them under the terms of the special authorisation I received from my Committee last year. For this reason, in the interests of protecting my sources and preserving the integrity of my investigations, I will not divulge individual names. Yet I can state unambiguously that their testimonies - insofar as they corroborate and validate one another – count as credible, plausible and authoritative. ” 261. Paragraphs 128-133 explained the US ’ s choice of European partners. This part of the report read, in so far as relevant, as follows: “ 128. For reasons of both security and capacity, the CIA determined that the Polish strand of the HVD programme should remain limited in size. Thus a ‘ second European site ’ was sought to which the CIA could transfer its detainees with ‘ no major logistical overhaul ’. Romania, used extensively by United States forces during Operation Iraqi Freedom in early 2003, had distinct benefits in this regard: as a member of the CIA ’ s Counterterrorist Centre remarked about the location of the proposed detention facility, ‘ our guys were familiar with the area ’. ... 130. Romania was developed into a site to which more detainees were transferred only as the HVD programme expanded. I understand that the Romanian ‘ black site ’ was incorporated into the programme in 2003, attained its greatest significance in 2004 and operated until the second half of 2005. The detainees who were held in Romania belonged to a category of HVDs whose intelligence value had been assessed as lower but in respect of whom the Agency still considered it worthwhile pursuing further investigations. ” 262. Paragraphs 211-218 contained conclusions as to who were the Romanian State officials responsible for authorising Romania ’ s role in the CIA ’ s HVD programme. These conclusions read, in so far as relevant, as follows: “ 211. During several months of investigations, our team has held discussions with numerous Romanian sources, including civilian and military intelligence operatives, representatives of state and municipal authorities, and high-ranking officials who hold first-hand knowledge of CIA operations on the territory of Romania. Based upon these discussions, my inquiry has concluded that the following individual office-holders knew about, authorised and stand accountable for Romania ’ s role in the CIA ’ s operation of ‘ out-of-theatre ’ secret detention facilities on Romanian territory, from 2003 to 2005: the former President of Romania (up to 20 December 2004), Ion ILIESCU, the current President of Romania (20 December 2004 onwards), Traian BASESCU, the Presidential Advisor on National Security (until 20 December 2004), Ioan TALPEŞ, the Minister of National Defence (Ministerial oversight up to 20 December 2004), Ioan Mircea PASCU, and the Head of Directorate for Military Intelligence, Sergiu Tudor MEDAR. 212. Collaborating with the CIA in this very small circle of trust, Romania ’ s leadership in the fields of national security and military intelligence effectively short-circuited the classic mechanisms of democratic accountability. Both of the political principals, President Iliescu and National Security Advisor Talpeş, sat on (and most often chaired) the CSAT - the Supreme Council of National Defence – throughout this period, yet they withheld the CIA ‘ partnership ’ from the other members of that body who did not have a ‘ need to know ’. This criterion excluded the majority of civilian office-holders in the Romanian Government from complicity at the time. Similarly, the Directors of the respective civilian intelligence agencies, the SRI and the SIE, were not briefed about the operational details and were thus granted ‘ plausible deniability ’. 213. We were told that the confidants on the military side, Defence Minister Pascu and General-Lieutenant Medar, had concealed important operational activities from senior figures in the Army and powerful structures to which they were subordinated. According to our sources, ‘ co-operation with America in the context of the NATO framework ’ was used as a general smokescreen behind which to hide the operations of the CIA programme. ... 216. Ioan Talpeş, the then Presidential Advisor on National Security ( Consilierul prezidențial pentru securitate națională ), was also an instrumental figure in the CIA programme from its inception. According to our sources, Talpeş guided President Iliescu ’ s every decision on issues of NATO harmonisation and bilateral relations with the United States; it has even been suggested that Talpeş was the one who initiated the idea of making facilities on Romanian soil available to US agencies for activities in pursuit of its ‘ war on terror ’. After December 2004, although Talpeş no longer acted as the Presidential Advisor on National Security, he quickly become Chair of the Senate Committee on Defence, Public Order and National Security, which meant that he exercised at least a theoretical degree of ‘ parliamentary oversight ’ over his own successor in the Advisor role. 217. Several of our Romanian sources commented that they felt proud to have been able to assist the United States in detaining ‘ high-value ’ terrorists – not only as a gesture of pro-American sentiment, but also because they thought it was ‘ in the best interests of Romania ’. ” 263. In paragraphs 219-226 the 2007 Marty Report described “ The anatomy of CIA secret transfers and detention in Romania ”. Those paragraphs read, in so far as relevant, as follows: “ a. Creating a secure area for CIA transfers and detentions 219. When the United States Government made its approach for the establishment of a ‘ black site ’ in Romania – offering formidable US support for Romania ’ s full accession into the NATO Alliance as the ‘ biggest prize ’ in exchange – it relied heavily upon its key liaisons in the country to make the case to then President Iliescu. As one high-level Romanian official who was actually involved in the negotiations told us, it was ‘ proposed to the President that we should provide full protection for the United States from an intelligence angle. Nobody from the Romanian side should interfere in these [CIA] activities ’. 220. In line with its staunch support under the NATO framework, Romania entered a bilateral ‘ technical agreement ’ with the intention of giving the US the full extent of the permissions and protections it sought. According to one of our sources with knowledge of the arrangement, there was an ‘ ... order [given] to our [military] intelligence services, on behalf of the President, to provide the CIA with all the facilities they required and to protect their operations in whichever way they requested ... ’. ... 222. The precise location and character of the ‘ black site ’ were not, to the best of my knowledge, stipulated in the original classified bilateral arrangements between Romania and the United States. Our team discussed those questions with multiple sources and we believe that to name a location explicitly would go beyond what it is possible to confirm from the Romanian side. One senior source in military intelligence objected to the notion that anyone but the Americans would ‘ need to know ’ this information: ‘ But I tell you that our Romanian officers do not know what happened inside those areas, because we sealed it off and we had control. There were Americans operating there free from interference – only they saw, only they heard – about the prisoners. ... ’ ” 264. Paragraphs 227-230 referred to the persistent cover-up with regard to the transfer of detainees into Romania: “ 227. Our efforts to obtain accurate actual flight records pertaining to the movements of aircraft associated with the CIA in Romania were characterised by obfuscation, inconsistency and genuine confusion. ... 228. Specifically I hold three principal concerns with the approach of the Romanian authorities towards the repeated allegations of secret detentions in Romania, and towards my inquiry in particular. In summary, my concerns are: far-reaching and unexplained inconsistencies in Romanian flight and airport data; the responsive and defensive posturing of the national parliamentary inquiry, which stopped short of genuine inquisitiveness; and the insistence of Romania on a position of sweeping, categorical denial of all the allegations, in the process overlooking extensive evidence to the contrary from valuable and credible sources. 229. First I was confounded by the clear inconsistencies in the flight data provided to my inquiry from multiple different Romanian sources. In my analysis I have considered data submitted directly from the Romanian Civil Aeronautical Authority (RCAA), data provided by the Romanian Senate Committee, and data gathered independently by our team in the course of its investigations. I have compared the data from these Romanian sources with the records maintained by Eurocontrol, comprehensive aeronautical ‘ data strings ’ generated by the international flight planning system, and my complete Marty Database. The disagreement between these sources is too fundamental and widespread to be explained away by simple administrative glitches, or even by in-flight changes of destination by Pilots-in-Command, which were communicated to one authority but not to another. There presently exists no truthful account of detainee transfer flights into Romania, and the reason for this situation is that the Romanian authorities probably do not want the truth to come out. 230. I found it especially disappointing that the Senate Inquiry Committee chose to interpret its mandate in the rather restrictive terms of defending Romania against what it called ‘ serious accusations against our country, based solely on “ indications ”, “ opinions ”, “ probabilities ”, “ extrapolations ” [and] “ logical deductions ” ‘. In particular, the Committee ’ s conclusions are not framed as coherent findings based on objective fact - finding, but rather as ‘ clear responses to the specific questions raised by Mr Dick Marty ’, referring to both my 2006 report and subsequent correspondence. Accordingly the categorical nature of the Committee ’ s ‘ General Conclusions ’, ‘ Conclusions based on field investigations and site visits ’ and ‘ Final Conclusions ’ cannot be sustained. The Committee ’ s work can thus be seen as an exercise in denial and rebuttal, without impartial consideration of the evidence. Particularly in the light of the material and testimony I have received from sources in Romania, the Committee does not appear to have engaged in a credible and comprehensive inquiry. ” 265. By a letter of 15 June 2007 the Delegation of Romania to the PACE submitted a dissenting opinion to the 2007 Marty Report stating, among other things, that “ in full transparency, in 2005, the Romanian authorities have also decided to allow and encourage investigations at all the locations suspected to have hosted CIA centres, on the territory of Romania. Therefore, the airports Mihail Kogălniceanu of Constanţa (including the military airbase) were inspected by representatives of international NGOs, as well as by Romanian and foreign journalists ”. (c ) The 2011 Marty Report 266. On 16 September 2011 the PACE (Committee on Legal Affairs and Human Rights) adopted the third report prepared by Senator Marty, entitled “ Abuse of state secrecy and national security: obstacles to parliamentary and judicial scrutiny of human rights violations ” ( “ the 2011 Marty Report ” ), which described the effects of, and progress in, national inquiries into CIA secret detention facilities in some of the Council of Europe ’ s member states. Paragraph 41 related to Romania. Its relevant part read: “ 41. In Romania, parliament has also conducted no more than a superficial inquiry, of which a critical presentation was already given in my 2007 report. Unfortunately, there has been nothing to add since then. ” 267. On 6 October 2011, following the 2011 Marty Report, the PACE adopted its Resolution 1838 (2011) which, in part relating to Romania, read: “ 11. With regard to judicial inquiries, the Assembly: ... 11.4. calls on the judicial authorities of Romania and of ‘ the former Yugoslav Republic of Macedonia ’ to finally initiate serious investigations following the detailed allegations of abductions and secret detentions in respect of those two countries, and on the American authorities to provide without further delay the judicial assistance requested by the prosecuting authorities of the European countries concerned. ... 12. With regard to parliamentary inquiries, the Assembly: ... 12.4. deplores the fact that the Polish and Romanian Parliaments confined themselves to inquiries whose main purpose seems to have been to defend the official position of the national authorities ... ” B. European Parliament 1. The Fava Inquiry 268. On 18 January 2006 the European Parliament set up a Temporary Committee on the alleged use of European countries by the CIA for the transportation and illegal detention of prisoners ( “ TDIP ” ) and appointed Mr Giovanni Claudio Fava as rapporteur with a mandate to investigate the alleged existence of CIA prisons in Europe. The Fava Inquiry held 130 meetings and sent delegations to the former Yugoslav Republic of Macedonia, the United States, Germany, the United Kingdom, Romania, Poland and Portugal. It identified at least 1,245 flights operated by the CIA in European airspace between the end of 2001 and 2005. 269. In the course of its work, the TDIP analysed specific cases of extraordinary rendition. According to the Fava Report, these cases “ involved the illegal transport of a prisoner by the secret services, or other specialist services, of a third country (including, but not exclusively, the CIA and other American security services) to various locations, outside any judicial oversight, where the prisoners have neither fundamental rights nor those guaranteed by various international conventions, such as all habeas corpus procedures, the right of the defence to be assisted by a lawyer, the right to due process within a reasonable time, etc. ” The TDIP studied in detail the following cases of extraordinary rendition: Abu Omar (Hassan Mustafa Osama Nasr); Khaled El-Masri; Maher Arar; Mohammed El-Zari; Ahmed Agiza; the “ Six Algerians ” from Bosnia-Herzegovina; Murat Kurnaz; Mohammed Zammar; Abou Elkassim Britel; Binyam Mohammed; Bisher Al-Rawi; Jamil El-Banna; and Martin Mubanga. The TDIP met the victims themselves, their lawyers, the heads of national judicial or parliamentary bodies responsible for specific cases of extraordinary rendition, representatives of European and international organisations or institutions, journalists who followed these cases, representatives of non-governmental organisations, experts in this area either during committee meetings or during official delegation visits. 270. The TDIP delegation visited Bucharest from 17 to 19 October 2006 and held meetings with a number of Romanian ’ s high-office holders, including Ms N. Nicolai, the chairman of the Romanian Senate ’ s Special Committee of Inquiry, Mr T. Meleșcanu, Vice-President of the Senate and member of the Special Committee of Inquiry, Mr A.C. Vierița, Secretary of State for EU Affairs at the Ministry of Foreign Affairs, Mr G. Maior, current Head of the Romanian Intelligence Service, Mr R. Timofte, former Head of the Romanian Intelligence Service, representatives of the Ministerial Department of Civil Aviation as well as representatives of various non-governmental organisations, including the Open Society Foundation and APADOR-CH and journalists. 271. As regards Romania, the Fava Report expressed, in paragraph 162, “ serious concern ” about the 21 stopovers made by the CIA-operated aircraft at Romanian airports, which on most occasions had come or were bound for “ countries linked with extraordinary rendition circuits and the transfer of detainees ”. It further concluded, in paragraph 164, that based only on the statements made by Romanian authorities to the TDIP delegation to Romania, the possibility that the US secret services operated in Romania on a clandestine basis could not be excluded and that no definitive evidence had been provided to contradict any of the allegations concerning the running of a secret detention facility on Romanian soil. 272. Detailed information gathered during the Fava Inquiry was also included in working documents produced together with the Fava Report. Working document no. 8 on the companies linked to the CIA, aircraft used by the CIA and the European countries in which CIA aircraft have made stopovers prepared during the work of the TDIP (PE 380.984v02-00) contained an analysis of CIA flights having stopped over in Romania in 2003-2005. It named five airports involved and listed the stopovers and landings as filed in flight plans: ( a) Bucharest – Otopeni and Băneasa airports, 13 stopovers and 5 take ‑ offs; ( b) Timișoara: 1 landing; ( c) Constanţa – Kogălniceanu airport: 2 stopovers and 4 landings; ( d) Bacău: 1 stopover. The stopovers involved 14 different CIA aircraft, which were identified as follows: N313P; N85VM; N379; N2189M; N8213G; N157A; N173S; N187D; N312ME; N4009L; N4456A; N478GS and N4466A. It was noted, however, that according to Eurocontrol data flight logs concerning Romania had been filed with some inconsistencies; flight plans indicated a landing airport which did not correspond with the following taking off airport. The flight plans that were found to have been inconsistent concerned the following flights: plane N313P flight on 25-26 January 2004, from Kabul with the destination filed for Timișoara but the following take off from Bucharest to Palma de Mallorca plane N85VM ( 1) flight on 26-27 January 2004 from Amman with the destination filed for Constanţa but the following take off from Bucharest to Barcelona; ( 2) flight on 12 April 2004 from Tenerife with the destination filed for Constanţa but the following take off from Bucharest to Casablanca; plane N379 flight on 25 October 2003 from Prague with the destination filed for Constanţa but the following take off from Bucharest to Amman; plane N1HC flight on 5 November 2005 from Porto with the destination filed for Constanţa but the following take off from Bucharest to Amman. 273. Working document no. 8 further listed the total number of stopovers for each aircraft and identified three aircraft that were known to have been involved in the CIA rendition operations: N313P (two stopovers), used for the extraordinary rendition of Khaled El Masri (Skopje via Baghdad-Kabul on 24 January 2004) and Benyam Mohammad (Rabat ‑ Kabul 22 January 2004); N85 VM (three stopovers), used for the extraordinary rendition of Osama Mustafa Nasr aka Abu Omar (Ramstein ‑ Cairo 17 February 2003; see also Nasr and Ghali, cited above, §§ 39, 112 and 231) and N379P (one stopover), used for the extraordinary renditions of Ahmed Agiza and Mohammed al-Zari (Stockholm-Cairo 18 December 2001), Abu Al Kassem Britel (Islamabad-Rabat 25 May 2002), Benyamin Mohammed (Islamabad-Rabat 21 July 2002), Bisher Al Rawi and Jamil El Manna (Banjul-Kabul 9 December 2002). It also listed flights from suspicious locations that stopped over in Romania in 2003-2005, with the first flight N313P on 22 September 2003 and the last flight N1HC on 5 November 2005. That list, in so far as relevant, read as follows: “ Afghanistan, Kabul + Bagram US Air Base: 5 flights N313P: Kabul– via Szymany, Poland – Bucharest, 22.09.2003 N313P: Kabul– Timișoara, 25.01.2004 N739P: Bucharest – via Amman, Jordan – Kabul, 25.10.2003 N478GS: Bucharest – Bagram US Air Base, 05.12.2004 N478GS: Bagram US Air Base - Bucharest, 06.12.2004 Jordan, Amman: 8 flights N58VM: Amman – Constanţa, 26.01.2004 N58VM: Amman – Constanţa, 01.10.2004 N739P: Bucharest - Amman, 25.10.2003 N2189M: Amman – Constanţa, 13.06.2003 N2189M: Constanţa - Amman, 14.06.2003 N1HC: Bucharest – Amman, 05.11.2005 N187D: Bucharest – Amman, 27.08.2004 N4456A: Bucharest – via Athens, Greece – Amman, 25.08.2004 Morocco, Rabat + Casablanca: 2 flights N313P: Bucharest – Rabat, 22.09.2003 N58VM: Bucharest – Casablanca, 12.04.2004 Cuba, Guantánamo : N313P: Bucharest – via Rabat, Morocco – Guantánamo, 23.09.2003 N85VM: Guantánamo – via Tenerife, Spain – Constanţa, 12.04.2004. ” 274. Working document no. 9 on certain countries analysed during the work of the Temporary Committee (PE 382.420v02-00) in a section concerning Romania and allegations of the existence of a CIA detention facility on its territory, stated the following: “ A) ALLEGED EXISTENCE OF DETENTION CENTRES Suspected airports supposed to host secret detention centres have been mentioned in mass-media, in some NGOs ’ reports, in Council of Europe ’ s report and have also been inferred from Eurocontrol data, as well as from pictures taken via satellite. These airports are: Timișoara - Gearmata București - Băneasa Constanţa - Kogălniceanu Cataloi - Tulcea Fetești - military ” As regards the parliamentary inquiry conducted in Romania (see also paragraphs 16 5 -169 above), the document read, in so far as relevant, as follows: “ B) NATIONAL OFFICIAL INQUIRIES Parliament A Temporary Inquiry Committee in the Romanian Senate on the Allegations Regarding the Existence of CIA Detention Centres or Flights over Romania ’ s Territory was set up on 21 st December 2005. On 16 June 2006, Ms Norica Nicolai, president of the Special Inquiry Committee presented during a press conference the conclusions of the preliminary report. At that stage, only the chapter 7 of the report was made public and the rest of the report remained classified. ... The Committee ’ s term of office has been extended by a Senate ’ s decision on 21 June 2006 following a number of incidents, such as the investigation of the accident involving the Gulfstream aircraft N478GS on 6 December 2004 and the televised statements made by a young Afghan claiming to have been detained in Romania. The Committee ’ s activity is ongoing and during the Senate sittings of 22 November 2006 a new deadline for submitting the final report has been settled: 05 March 2007. ” 275. Referring to the alleged involvement of the Romanian authorities in the CIA secret detentions, the document stated: “ C) ROLE OR ATTITUDE OF ROMANIAN BODIES Since the publication of the first news about alleged existence of the CIA prisons and illegal transportation of prisoners, Romanian official position has moved from a first categorical denial that CIA secret prisons could be hosted in Romania and that CIA flights could have landed in this country to a less firm and more doubtful attitude, which confirms that something clandestine, not supposed to be known by Romanian authorities, could have happened either on the planes or in the areas controlled by the American authorities. Cooperation of official authorities with the Temporary Committee ’ s delegation was very high. They claimed that nobody could have thought that human rights violations could have been taking place on Romanian territory and they confirmed that individuals, goods and other equipment circulating on Romanian territory were subject to checks by Romanian officials or military personnel. On 10th November 2005, President Băsescu denied during his visit in Bratislava, the existence of CIA detention centres on Romanian territory. One week after, he declared to be at the disposal of any institution that would like to verify the existence of CIA secret detention sites in Romania. In the same line with the declaration of Mr Băsescu were also the declarations of former minister for external affairs, Mr. Mircea Geoană and of the spokesperson of Romanian Secret Service (SRI), Mr. Marius Beraru. On 20th November 2005, former Romanian minister for defence, Mr Ioan Mircea Pascu, stated in an interview for Associated Press that the Romanian authorities did not have access to certain sites used by U.S. services in Romania. He came back to this declaration, later on, saying that his comments were taken out of the context. Regarding the accident involving the Gulfstream aircraft N478GS on 6 December 2004 the position of the Romanian authorities differed in some extent: Ms Norica Nicolai, chairperson of the Romanian Senate ’ s Special Committee of Inquiry pretended not being able to make available to the delegation the report drawn up by the frontier police on the mentioned accident by invocating the law on data protection. On the other hand, Mr. Anghel Andreescu, Secretary of State for Public Order and Security at the Ministry of Interior and Public Administration, willingly agreed after meeting the TDIP delegation to forward this report and only the following day after receiving it Mr Coelho, chairman of the delegation, was informed that this document has to remain confidential. ” 276. The document also identified certain flights landing in Romania, which were associated with the CIA rendition operations: “ D) FLIGHTS Total Flights Number since 2001: 21 Principal airports : Kogălniceanu, Timișoara, Otopeni, Băneasa Suspicious destinations and origins : Guantánamo, Cuba; Amman, Jordan; Kabul, Bagram US airbase, Afghanistan; Rabat, Morocco; Baghdad, Iraq. Stopovers of planes transited through Romania and used in other occasions for extraordinary renditions : N379P, used for the extraordinary renditions of: Al Rawi and El Banna; Benyam Mohammed; Kassim Britel and the expulsion of Agiza and El Zari: 1 stopover in Romania N313P, used for the extraordinary renditions of Khalid El Masri and Benyamin Mohamed: 2 stopovers in Romania N85VM, used for the rendition of Abu Omar: 3 stopovers in Romania. ” 277. The Fava Report was approved by the European Parliament with 382 votes in favour, 256 against with 74 abstentions on 14 February 2007. 2. The 2007 European Parliament Resolution 278. On 14 February 2007, following the examination of the Fava Report, the European Parliament adopted the Resolution on the alleged use of European countries by the CIA for the transportation and illegal detention of prisoners (2006/22009INI) ( “ the 2007 EP Resolution ” ). Its general part read, in so far as relevant, as follows: “ The European Parliament, ... J. whereas on 6 September 2006, US President George W. Bush confirmed that the Central Intelligence Agency (CIA) was operating a secret detention programme outside the United States, K. whereas President George W. Bush said that the vital information derived from the extraordinary rendition and secret detention programme had been shared with other countries and that the programme would continue, which raises the strong possibility that some European countries may have received, knowingly or unknowingly, information obtained under torture, L. whereas the Temporary Committee has obtained, from a confidential source, records of the informal transatlantic meeting of European Union (EU) and North Atlantic Treaty Organisation (NATO) foreign ministers, including US Secretary of State Condoleezza Rice, of 7 December 2005, confirming that Member States had knowledge of the programme of extraordinary rendition, while all official interlocutors of the Temporary Committee provided inaccurate information on this matter, ” 279. The passages regarding the EU member states read, in so far as relevant: “ 9. Deplores the fact that the governments of European countries did not feel the need to ask the US Government for clarifications regarding the existence of secret prisons outside US territory; ... 13. Denounces the lack of cooperation of many Member States, and of the Council of the European Union towards the Temporary Committee; stresses that the behaviour of Member States, and in particular the Council and its Presidencies, has fallen far below the standard that Parliament is entitled to expect; ... 39. Condemns extraordinary rendition as an illegal instrument used by the United States in the fight against terrorism; condemns, further, the condoning and concealing of the practice, on several occasions, by the secret services and governmental authorities of certain European countries; ... 43. Regrets that European countries have been relinquishing their control over their airspace and airports by turning a blind eye or admitting flights operated by the CIA which, on some occasions, were being used for extraordinary rendition or the illegal transportation of detainees, and recalls their positive obligations arising out of the case law of the European Court of Human Rights, as reiterated by the European Commission for Democracy through Law (Venice Commission); 44. Is concerned, in particular, that the blanket overflight and stopover clearances granted to CIA-operated aircraft may have been based, inter alia, on the NATO agreement on the implementation of Article 5 of the North Atlantic Treaty, adopted on 4 October 2001; ... 48. Confirms, in view of the additional information received during the second part of the proceedings of the Temporary Committee, that it is unlikely that certain European governments were unaware of the extraordinary rendition activities taking place in their territory; ... ” 280. In respect of Romania, the resolution stated: “ ROMANIA [ The European Parliament ] 159. Welcomes the excellent hospitality and good cooperation extended by the Romanian authorities to the Temporary Committee, including meetings with members of the Romanian Government, as well as the establishment of an ad hoc inquiry committee of the Romanian Senate; 160. Notes, however, the reluctance on the part of the competent Romanian authorities to investigate thoroughly the existence of secret detention facilities on its territory; 161. Regrets that the report issued by the Romanian inquiry committee was entirely secret except for its conclusions, included in Chapter 7, categorically denying the possibility that secret detention facilities could be hosted on Romanian soil; regrets that the Romanian inquiry committee heard no testimony from journalists, NGOs, or officials working at airports, and has not yet provided the Temporary Committee with the report contrary to its commitment to do so; regrets that taking these elements into consideration, the conclusions drawn in the Romanian inquiry committee ’ s report appear premature and superficial; takes note, however, of the intention expressed by the Chairwoman of the inquiry committee to the Temporary Committee delegation to consider the conclusions provisional; 162. Regrets the lack of control of the Gulfstream aircraft with Registration Number N478GS that suffered an accident on 6 December 2004 when landing in Bucharest; recalls that the aircraft took off from Bagram Air Base in Afghanistan, and that its seven passengers disappeared following the accident; appreciates, however, the good cooperation of the Romanian authorities in handing over the accident report to the Temporary Committee; 163. Is deeply concerned to see that the Romanian authorities did not initiate an official investigation process into the case of a passenger on the aircraft Gulfstream N478GS, who was found carrying a Beretta 9 mm Parabellum pistol with ammunition; 164. Notes the 21 stopovers made by CIA-operated aircraft at Romanian airports, and expresses serious concern about the purpose of those flights which came from or were bound for countries linked with extraordinary rendition circuits and the transfer of detainees; deplores the stopovers in Romania of aircraft that have been shown to have been used by the CIA, on other occasions, for the extraordinary rendition of Bisher Al-Rawi, Jamil El-Banna, Abou Elkassim Britel, Khaled El-Masri, Binyam Mohammed and Abu Omar and for the expulsion of Ahmed Agiza and Mohammed El Zari; is particularly concerned that, of the flights referred to, two originated from or were destined for Guantánamo; strongly encourages the Romanian authorities further to investigate those flights; 165. Is concerned about the doubts expressed in regard to the control exercised by the Romanian authorities over US activities at Kogălniceanu airport; 166. Cannot exclude, based only on the statements made by Romanian authorities to the Temporary Committee delegation to Romania, the possibility that US secret services operated in Romania on a clandestine basis and that no definitive evidence has been provided to contradict any of the allegations concerning the running of a secret detention facility on Romanian soil; ” 3. The 2011 European Parliament Resolution 281. On 9 June 2011 the European Parliament adopted its resolution on Guantánamo: imminent death penalty decision (doc. B70375/2011) relating to Mr Al Nashiri. The European Parliament, while recognising that the applicant was accused of serious crimes, expressed its deep concern that the US authorities in his case had violated international law “ for the last 9 years ”. It called on the US Convening Authority not to apply the death penalty on him, “ on the grounds that the military commission trials do not meet the standards internationally required for the application of the death sentence ”. The European Parliament further appealed to “ the particular responsibility of the Polish and Romanian Governments to make thoroughly inquiries into all indications relating to secret prisons and cases of extraordinary rendition on Polish soil and to insist with the US Government that the death penalty should on no account be applied to Mr Al Nashiri ”. 4. The Flautre Report and the 2012 European Parliament Resolution 282. On 11 September 2012 the European Union Parliament adopted a report prepared by Hélène Flautre within the Committee on Civil Liberties, Justice and Home Affairs ( “ LIBE ” ) – “ the Flautre Report ”, highlighting new evidence of secret detention centres and extraordinary renditions by the CIA in European Union member states. The report, which came five years after the Fava Inquiry, highlighted new abuses – notably in Romania, Poland and Lithuania, but also in the United Kingdom and other countries – and made recommendations to ensure proper accountability. The report included the Committee on Foreign Affairs ’ opinion and recommendations. In the course of its work, on 27 March 2012, LIBE held a hearing on “ What is new on the alleged CIA illegal detention and transfers of prisoners in Europe ”. At that hearing Mr Crofton Black from the Bureau of Investigative Journalism was heard as an expert. 283. Following the examination of the Report the European Union Parliament adopted, on 11 September 2012, the Resolution on alleged transportation and illegal detention of prisoners in European countries by the CIA: follow-up of the European Parliament TDIP Committee report (2012/2033(INI)) ( “ the 2012 EP Resolution ” ). 284. Paragraph 13 of the 2012 EP Resolution, which refers to the criminal investigation in Romania, read: “ [The European Parliament ,] “ 12. Notes that the parliamentary inquiry carried out in Romania concluded that no evidence could be found to demonstrate the existence of a secret CIA detention site on Romanian territory; calls on the judicial authorities to open an independent inquiry into alleged CIA secret detention sites in Romania, in particular in the light of the new evidence on flight connections between Romania and Lithuania; ” 285. Paragraph 45, which concerns the applicant, read: “ “ [The European Parliament ,] 45. Is particularly concerned by the procedure conducted by a US military commission in respect of Abd al-Rahim al-Nashiri, who could be sentenced to death if convicted; calls on the US authorities to rule out the possibility of imposing the death penalty on Mr al ‑ Nashiri and reiterates its long-standing opposition to the death penalty in all cases and under all circumstances; notes that Mr al-Nashiri ’ s case has been before the European Court of Human Rights since 6 May 2011; calls on the authorities of any country in which Mr al-Nashiri was held to use all available means to ensure that he is not subjected to the death penalty; urges the VP/HR to raise the case of Mr al-Nashiri with the US as a matter of priority, in application of the EU Guidelines on the Death Penalty; ” 5. The 2013 European Parliament Resolution 286. Having regard to the lack of response to the recommendations in the 2012 EP Resolution on the part of the European Commission, on 10 October 2013 the EU Parliament adopted the Resolution on alleged transportation and illegal detention of prisoners in European countries by the CIA (2013/2702(RSP) ( “ the 2013 EP Resolution ” ). Its general part read, in so far as relevant, as follows: “ [ The European Parliament], ... G. whereas the in-depth investigative work broadcast on the Antena 1 television channel in April 2013 provided further indications of Romania ’ s central role in the prison network; whereas former national security advisor Ioan Talpeş stated that Romania provided logistical support for the CIA; whereas a former Romanian senator admitted the limitations of the previous parliamentary inquiry and called for prosecutors to initiate judicial proceedings; ” Paragraph 5, which concerned Romania, read: “ [ The European Parliament ,] 5. Urges the Romanian authorities to swiftly open an independent, impartial, thorough and effective investigation, to locate missing parliamentary inquiry documents and to cooperate fully with the ECtHR in the case of Al Nashiri v Romania; calls on Romania to comply fully with its fundamental rights obligations. ” 6. The 2015 European Parliament Resolution 287. Following the publication of the 2014 US Senate Committee Report (see paragraphs 77-96 ), on 11 February 2015 the European Parliament adopted the Resolution on the US Senate Committee Report on the use of torture by the CIA (2014/2997(RSP)) ( “ the 2015 EP Resolution ” ). The European Parliament, while noting that the applicant ’ s application was pending before the ECHR, reiterated its calls on Member States to “ investigate the allegations that there were secret prisons on their territory where people were held under the CIA programme, and to prosecute those involved in these operations, taking into account all the new evidence that has come to light ”. The European Parliament further expressed concern regarding the “ obstacles encountered by national parliamentary and judicial investigations into some Member States ’ involvement in the CIA programme ”. 7. LIBE delegation ’ s visit to Romania (24-25 September 2015) 288. As a follow up to the 2015 EP Resolution, a delegation from the LIBE visited Bucharest from 24 to 25 September 2015. The delegation was headed by Ms Tanja Fajon and comprised three other members (Ms Eva Joly, Ms Laura Ferrara and Mr Jeroen Lenaers and an accompanying member – Ms Ramona Mănescu). The delegation met with representatives of the Ministry of Foreign Affairs, the Prosecutor General, several members of the Romanian Parliament as well as representatives of civil society and investigative journalists. In connection with the visit, Mr Crofton Black prepared a briefing of 15 September 2015 on “ CIA Detention in Romania and the Senate Intelligence Committee Report ( “ the 2015 LIBE Briefing ” ). The briefing described correlations between the 2014 US Senate Committee Report and other public data sources. It included a summary of flights through Romania and their links to the rendition programme, as well as of summary of data in the 2014 US Senate Committee Report relating to Romania (see also paragraphs 35 5 -35 8 below). 8. Follow-up to the visit 289. On 13 October 2015 the LIBE held a hearing on “ Investigation of alleged transportation and illegal detention of prisoners in European Countries by the CIA ”. The aim of the hearing was to analyse all past and ongoing parliamentary and judicial inquiries relating to Member States ’ involvement in the CIA programme. During the hearing a research paper was presented by the Policy Department C on the latest developments on Member States investigations into the CIA programme titled: “ A quest for accountability? EU and Member State inquiries into the CIA Rendition and Secret Detention Programme ”. The Committee also heard a summary overview by Mr Crofton Black on what had been achieved with reference to CIA operated secret prisons in Europe. In particular, Mr Black stated that since the adoption of the 2012 EP Resolution and the publication of the US Senate ’ s report the evidence had been conclusive that the CIA had operated a prison in Romania from September 2003 to November 2005. At a 13 October 2015 European Parliament hearing, Eva Joly, member of a European Parliament delegation that visited Romania to investigate its role in CIA secret detention operation observed: “ The next morning we met with the Prosecutor General of Romania. He is called Mr. Tiberiu, Mihail Nitu. And he did hide behind the secrecy of the inquiry. But he was able to tell us that he had no proof whatsoever that Mr al Nashiri, who has an ongoing case in the European Court of Human Rights, that he has been detained in Romania. He was denying that, saying that no proof whatsoever. I am not optimistic as to what will come out of this inquiry. To my question on how many witnesses he had heard, how many hotels were in some kilometres around the supposed detention centre, I got the impression that no real inquiry was being carried out. And nobody wanted to help us to get access to the ORNISS centre. We really insisted meeting with the Secretary of State but there was clear instructions to deny us, and no argumentation whatsoever was received. ” 9. The 2016 European Parliament Resolution 290. On 8 June 2016 the European Parliament adopted a follow-up resolution to the 2015 EP Resolution (2016/2573(RSP)) ( “ the 2016 EP Resolution ” ). Its general part read, in so far as relevant, as follows: “ [The European Parliament ,] “ N. whereas it is regrettable that the members of the fact-finding mission to Bucharest of Parliament ’ s Committee on Civil Liberties, Justice and Home Affairs were not able to visit the National Registry Office for Classified Information (ORNISS) building, reported to have been used as a secret CIA detention site; ... ” In respect of Romania, the resolution further stated: “ [The European Parliament ,] 11. Urges Lithuania, Romania and Poland to conduct, as a matter of urgency, transparent, thorough and effective criminal investigations into CIA secret detention facilities on their respective territories, having taken into full consideration all the factual evidence that has been disclosed, to bring perpetrators of human rights violations to justice, to allow the investigators to carry out a comprehensive examination of the renditions flight network and of contact people publicly known to have organised or participated in the flights in question, to carry out forensic examination of the prison sites and the provision of medical care to detainees held at these sites, to analyse phone records and transfers of money, to consider applications for status/participation in the investigation from possible victims, and to ensure that all relevant crimes are considered, including in connection with the transfer of detainees, or to release the conclusions of any investigations undertaken to date; ... 13. Recalls that the former director of the Romanian secret services, Ioan Talpeş, admitted on record to the European Parliament delegation that he had been fully aware of the CIA ’ s presence on Romanian territory, acknowledging that he had given permission to ‘ lease ’ a government building to the CIA; ... 16. Welcomes the efforts made so far by Romania, and calls on the Romanian Senate to declassify the remaining classified parts of its 2007 report, namely the annexes on which the conclusions of the Romanian Senate inquiry were based; reiterates its call on Romania to investigate the allegations that there was a secret prison, to prosecute those involved in these operations, taking into account all the new evidence that has come to light, and to conclude the investigation as a matter of urgency; ... 18. Express its disappointment that, despite several requests (a letter to the Minister of Foreign Affairs of Romania from the Chair of Parliament ’ s Committee on Civil Liberties, Justice and Home Affairs, and another request at the time of the fact-finding mission to the Secretary of State), the members of the fact-finding mission were not able to visit ‘ Bright Light ’, a building repeatedly – and officially – reported to have been used as a detention site; ” C. The 2007 ICRC Report 291. The ICRC made its first written interventions to the US authorities in 2002, requesting information on the whereabouts of persons allegedly held under US authority in the context of the fight against terrorism. It prepared two reports on undisclosed detention on 18 November 2004 and 18 April 2006. These reports still remain classified. After the US President publicly confirmed on 6 September 200 6 that 14 terrorist suspects ( “ high-value detainees ” ) – including the applicant – detained under the CIA detention programme had been transferred to the military authorities in the US Guantánamo Bay Naval Base (see paragraph 60 above), the ICRC was granted access to those detainees and interviewed them in private from 6 to 11 October and from 4 to 14 December 2006. On this basis, it drafted its Report on the Treatment of Fourteen “ High Value Detainees ” in CIA Custody of February 2007 – “ the 2007 ICRC Report ” – which related to the CIA rendition programme, including arrest and transfers, incommunicado detention and other conditions and treatment. The aim of the report, as stated therein, was to provide a description of the treatment and material conditions of detention of the fourteen detainees concerned during the period they had been held in the CIA programme. The report was (and formally remains) classified as “ strictly confidential ”. It was published by The New York Review of Books on 6 April 2009 and further disseminated via various websites, including the ACLU ’ s site. 292. Extracts from the 2007 ICRC Report giving a more detailed account of the applicant ’ s and other HVDs ’ treatment in CIA custody can be found in Al Nashiri v. Poland (cited above, § 282). 293. The sections relating to main elements of the HVD Programme, routine procedures for the detainees ’ transfers and their detention regime read, in so far as relevant, as follows: “ 1. MAIN ELEMENTS OF THE CIA DETENTION PROGRAM ... The fourteen, who are identified individually below, described being subjected, in particular during the early stages of their detention, lasting from some days up to several months, to a harsh regime employing a combination of physical and psychological ill-treatment with the aim of obtaining compliance and extracting information. This regime began soon after arrest, and included transfers of detainees to multiple locations, maintenance of the detainees in continuous solitary confinement and incommunicado detention throughout the entire period of their undisclosed detention, and the infliction of further ill-treatment through the use of various methods either individually or in combination, in addition to the deprivation of other basic material requirements. ... 2. ARREST AND TRANSFER ... Throughout their detention, the fourteen were moved from one place to another and were allegedly kept in several different places of detention, probably in several different countries. The number of locations reported by the detainees varied, however ranged from three to ten locations prior to their arrival in Guantánamo in September 2006. The transfer procedure was fairly standardised in most cases. The detainee would be photographed, both clothed and naked prior to and again after transfer. A body cavity check (rectal examination) would be carried out and some detainees alleged that a suppository (the type and the effect of such suppositories was unknown by the detainees), was also administered at that moment. The detainee would be made to wear a diaper and dressed in a tracksuit. Earphones would be placed over his ears, through which music would sometimes be played. He would be blindfolded with at least a cloth tied around the head and black goggles. In addition, some detainees alleged that cotton wool was also taped over their eyes prior to the blindfold and goggles being applied. The detainee would be shackled by hands and feet and transported to the airport by road and loaded onto a plane. He would usually be transported in a reclined sitting position with his hands shackled in front. The journey times obviously varied considerably and ranged from one hour to over twenty-four to thirty hours. The detainee was not allowed to go to the toilet and if necessary was obliged to urinate or defecate into the diaper. On some occasions the detainees were transported lying flat on the floor of the plane and/or with their hands cuffed behind their backs. When transported in this position the detainees complained of severe pain and discomfort. In addition to causing severe physical pain, these transfers to unknown locations and unpredictable conditions of detention and treatment placed mental strain on the fourteen, increasing their sense of disorientation and isolation. The ability of the detaining authority to transfer persons over apparently significant distances to secret locations in foreign countries acutely increased the detainees ’ feeling of futility and helplessness, making them more vulnerable to the methods of ill-treatment described below. ... [T]hese transfers increased the vulnerability of the fourteen to their interrogation, and was performed in a manner (goggles, earmuffs, use of diapers, strapped to stretchers, sometimes rough handling) that was intrusive and humiliating and that challenged the dignity of the persons concerned. As their detention was specifically designed to cut off contact with the outside world and emphasise a feeling of disorientation and isolation, some of the time periods referred to in the report are approximate estimates made by the detainees concerned. For the same reasons, the detainees were usually unaware of their exact location beyond the first place of detention in the country of arrest and the second country of detention, which was identified by all fourteen as being Afghanistan. ... 1.2. CONTINUOUS SOLITARY CONFINEMENT AND INCOMMUNICADO DETENTION Throughout the entire period during which they were held in the CIA detention program – which ranged from sixteen months up to almost four and a half years and which, for eleven of the fourteen was over three years – the detainees were kept in continuous solitary confinement and incommunicado detention. They had no knowledge of where they were being held, no contact with persons other than their interrogators or guards. Even their guards were usually masked and, other than the absolute minimum, did not communicate in any way with the detainees. None had any real – let alone regular – contact with other persons detained, other than occasionally for the purposes of inquiry when they were confronted with another detainee. None had any contact with legal representation. The fourteen had no access to news from the outside world, apart from in the later stages of their detention when some of them occasionally received printouts of sports news from the internet and one reported receiving newspapers. None of the fourteen had any contact with their families, either in written form or through family visits or telephone calls. They were therefore unable to inform their families of their fate. As such, the fourteen had become missing persons. In any context, such a situation, given its prolonged duration, is clearly a cause of extreme distress for both the detainees and families concerned and itself constitutes a form of ill-treatment. In addition, the detainees were denied access to an independent third party. ... 1.3. OTHER METHODS OF ILL-TREATMENT ... [T]he fourteen were subjected to an extremely harsh detention regime, characterised by ill-treatment. The initial period of interrogation, lasting from a few days up to several months was the harshest, where compliance was secured by the infliction of various forms of physical and psychological ill-treatment. This appeared to be followed by a reward based interrogation approach with gradually improving conditions of detention, albeit reinforced by the threat of returning to former methods. ... 1.4. FURTHER ELEMENTS OF THE DETENTION REGIME The conditions of detention under which the fourteen were held, particularly during the earlier period of their detention, formed an integral part of the interrogation process as well as an integral part of the overall treatment to which they were subjected as part of the CIA detention program. This report has already drawn attention to certain aspects associated with basic conditions of detention, which were clearly manipulated in order to exert pressure on the detainees concerned. In particular, the use of continuous solitary confinement and incommunicado detention, lack of contact with family members and third parties, prolonged nudity, deprivation/restricted provision of solid food and prolonged shackling have already been described above. The situation was further exacerbated by the following aspects of the detention regime: • Deprivation of access to the open air • Deprivation of exercise • Deprivation of appropriate hygiene facilities and basic items in pursuance of interrogation • Restricted access to the Koran linked with interrogation. These aspects cannot be considered individually, but must be understood as forming part of the whole picture. As such, they also form part of the ill-treatment to which the fourteen were subjected. ... ” D. United Nations 1. The 2010 UN Joint Study 294. On 19 February 2010 the Human Rights Council of United Nations Organisation released the “ Joint Study on Global Practices in Relation to Secret Detention in the Context of Countering Terrorism of the Special Rapporteur on the Promotion and protection of Human Rights and Fundamental Freedoms while Countering Terrorism ” – “ the 2010 UN Joint Study ” (A/HRC/1342). 295. In the summary, the experts explained their methodology as follows: “ In conducting the present study, the experts worked in an open, transparent manner. They sought inputs from all relevant stakeholders, including by sending a questionnaire to all States Members of the United Nations. Several consultations were held with States, and the experts shared their findings with all States concerned before the study was finalized. Relevant ехсerpts of the report were shared with the concerned States on 23 and 24 December 2009. In addition to United Nations sources and the responses to the questionnaire from 44 States, primary sources included interviews conducted with persons who had been held in secret detention, family members of those held captive and legal representatives of detainees. Flight data were also used to corroborate information. In addition to the analysis of the policy and legal decisions taken by States, the aim of the study was also to illustrate, in concrete terms, what it means to be secretly detained, how secret detention can facilitate the practice of torture or inhuman and degrading treatment, and how the practice of secret detention has left an indelible mark on the victims, and on their families as well. ” 296. In relation to Romania, the report (in paragraphs 116-124) stated, among other things, the following: “ 116. ... In [the 2004 CIA Report], the CIA Inspector General discussed the interrogations of Abu Zubaydah and Abd al-Rahim al-Nashiri. Two United States sources with knowledge of the high-value detainees programme informed the experts that a passage revealing that ‘ enhanced interrogation of al-Nashiri continued through 4 December 2002 ’ and another, partially redacted, which stated that ‘ however, after being moved, al-Nashiri was thought to have been withholding information ’, indicate that it was at this time that he was rendered to Poland. The passages are partially redacted because they explicitly state the facts of al-Nashiri ’ s rendition - details which remain classified as ‘ Top Secret ’. 117. Using a similar analysis of complex aeronautical data, including data strings, research was also able to demonstrate that a Boeing 737 aircraft, registered with the Federal Aviation Administration as N313P, flew to Romania in September 2003. The aircraft took off from Dulles Airport in Washington, D.C. on Saturday 20 September 2003, and undertook a four-day flight ‘ circuit ’, during which it landed in and departed from six different foreign territories - the Czech Republic, Uzbekistan, Afghanistan, Poland, Romania and Morocco - as well as Guantánamo Bay, Cuba. Focus was also placed on a flight between the two listed European ‘ black site ’ locations - namely from Szymany (Poland) to Bucharest - on the night of 22 September 2003, although it was conceivable that as many as five consecutive individual routes on this circuit - beginning in Tashkent, concluding in Guantánamo - may have involved transfers of detainees in the custody of the CIA. The experts were not able to identify any definitive evidence of a detainee transfer into Romania taking place prior to the flight circuit. 119. In its response to the questionnaire sent by the experts, Romania provided a copy of the report of the Committee of Enquiry of Parliament concerning the investigation of the statements on the existence of CIA imprisonment centres or of flights of aircraft hired by the CIA on the territory of Romania. ... 124. According to two high-ranking Government officials at the time, revelations about the existence of detention facilities in Eastern Europe in late 2005 by The Washington Post and ABC news led the CIA to close its facilities in Lithuania and Romania and move the Al-Qaida detainees out of Europe. It is not known where these persons were transferred; they could have been moved into ‘ war zone facilities ’ in Iraq and Afghanistan or to another black site, potentially in Africa. The experts were not able to find the exact destination of the 16 high-value detainees between December 2005 and their move to Guantánamo in September 2006. No other explanation has been provided for the whereabouts of the detainees before they were moved to Guantánamo in September 2006. ” 2. The 2015 UN Committee against Torture ’ s Observations 297. The UN Committee against Torture ( “ CAT ” ), in its Concluding observations on the second periodic report of Romania adopted on 7 May 2015 – “ the 2015 UN CAT Observations ” – referred to the CIA HVD Programme ’ s operation in Romania in the following terms: “ Secret detention centres and rendition flights 15. The Committee is concerned at persistent allegations of illegal detention of persons in secret detention facilities of the Central Intelligence Agency and of extraordinary rendition flights into and out of Romania in the context of the country ’ s international cooperation in countering terrorism. It is also concerned that, in his application filed in 2012 with the European Court of Human Rights, Abd al-Rahim Hussayn Muhammad Al-Nashiri claimed that he had been illegally detained and tortured in an Agency detention facility in Romania; this is currently being investigated by the Romanian Prosecutor General. The Committee is also concerned at the discrepancy between the information provided by the State party, and the statements made in December 2014 by the former head of the Romanian intelligence service which indicated that the authorities had allowed the Agency to operate detention facilities between 2003 and 2006 where inmates allegedly suffered inhumane treatment (arts. 2, 3, 12 and 16). The Committee encourages the State party to continue its investigations into the allegations of its involvement in a programme of secret detention centres, and of the use of its airports and airspace by aeroplanes involved in ‘ extraordinary rendition ’, and to inform the Committee of their outcome. The Committee requests the State party to provide it with information about the outcome of any ongoing investigations regarding the case of Abd al-Rahim Hussayn Muhammad Al-Nashiri. ” X. TRANSCRIPTS OF WITNESS EVIDENCE PRODUCED BY THE GOVERNMENT 298. The respondent Government produced transcripts of the statements and testimony of witnesses heard by the prosecutor in the context of the criminal investigation concerning the alleged existence of CIA secret detention facilities in Romania, together with an English translation. At the Government ’ s request, confidentiality was imposed on this material, in accordance with Rule 33 § 2 of the Rules of Court (see also paragraph 12 above) The Court and the applicant had access to the full versions of these documents. In the English version [1], reproduced below, the names, job titles, functions and other details that might lead to witnesses ’ identities being revealed to the public have been removed. The names of the witnesses have been anonymised by a single letter of the alphabet [2]. A. Transcript of witness X ’ s statement made on 18 September 2013 299. Witness X made the following statement to the prosecutor : “ During the period 2003-2005, I was [ REDACTED ] and the duties attached to the post that I held included specific aspects concerning the security of civil aviation airports. The [ REDACTED ], had partnerships with various similar institutions from other States, including equivalent structures in the United States of America. In the framework of these bilateral relations, civil aviation aircraft hired by the partner services on which their representatives travelled and landed at Bucharest Băneasa airport. My presence at the airport was aimed at ensuring protocol relations during processing as well as bilateral courtesy - setting according to diplomatic norms and international rules. ” B. Transcript of testimony given by witness Y on 4 May 2015 300. The testimony given by witness Y to the prosecutor on 4 May 2015 reads, in so far as relevant, as follows: “ I have been informed that I will be heard as a witness concerning: the existence on the Romanian territory, after 2001, of some secret detention and interrogation centres of the United States of America ’ s Central Intelligence Agency. ... I declare the following: I have been informed of the object of this criminal investigation, namely of the fact that a Saudi national, Abd Al Rahim Hussein Muhammad Al Nashiri, complained that he had allegedly been brought on the Romanian territory and held in illegal detention centre, administrated by officers of the Central Intelligence Agency (CIA) with help from the Romanian authorities. It is for the first time that I have heard about such a criminal complaint by this citizen against the Romanian State. As a [ REDACTED ], I had never been asked by the authorities of the United States of America to allow, to approve, or to facilitate the hosting on the national territory of a location aimed at serving as a detention and interrogation centre of individual suspected of participating in, initiating or organising terrorist acts directed against the USA or its allies. I do remember that, in the aftermath of the terrorist attacks of 11 September 2001 in the USA, myself and other officials of the Romanian State, at that time, went to the USA Embassy in Bucharest and we expressed our grief for what had happened and condolences for the loss of human lives; in the course of the same year, I visited UN headquarters, and on that occasion, I also visited the so-called ‘ Ground Zero ’. I do not remember any express request addressed to me, to the [ REDACTED ], to the Head of the [ REDACTED ], to the Head of [ REDACTED ], nor the Ministry [ REDACTED ], to intensify the cooperation with the American partners from the intelligence services in the sense of facilitating [the creation] of detention centres on the territory of Romania. I must say that I consider to be an invention this accusation according to which Romania hosted CIA detention centres on its territory and also being a denigration against the Romanian State, because in the [ REDACTED ] meetings such request from the Americans had never been discussed. If such centres had existed, I would certainly have known about their existence on the national territory, for as long as I was [ REDACTED ]. Therefore, I restate that [REDACTED] never received such requests from the USA ’ s then Presidents, George Bush Jr. and Bill Clinton, nor from the three US ambassadors to Bucharest, during [ REDACTED ] and the impugned period [REDACTED]. Concerning my statement [ REDACTED ], I state that I did not maintain in that [REDACTED] that Romania had hosted CIA detention centres, but I only referred to the overflight permission ( drept de survol ) to [and from] the Mihail Kogălniceanu airport of Constanţa for the US military aircraft, in the context of Middle East operations, in which we cooperated (troops and equipment transport or others). In the context of Romania ’ s strategic objective of integration into the North Atlantic Alliance and into the European Union, the exchange of information and the cooperation between the national intelligence services and their American counterparts was done in a natural way, as a necessity. In this context, it is possible that CIA offices were run on the national territory, but I cannot with certainty state it, nor deny it, because I never personally gave such authorisation. I see no reason for the Americans to request the setting-up of such facilities on Romanian territory. I wish to state that the initiative of [ REDACTED ] was not mine; it was the initiative of that [ REDACTED ] citizen that [REDACTED] asked me to have a discussion on the general subject of the 25th anniversary of the Revolution; at least, it was that which I was expecting, but it was never mentioned as such to me. I did not expect to be questioned on the issue of the supposed existence of the CIA prisons in Romania. I certainly consider that the heads of the main [ REDACTED ] services would have consulted [REDACTED ], should we have been asked to approve such detention facilities on the Romanian territory, also given the fact that both of them, [ REDACTED ] were members of the [ REDACTED ]. I heard about the statements publicly made by [ REDACTED ], and I intend to have a discussion with him, to clarify things on this issue, but because he had gone on holiday, I could not get in touch with him until now. I have no other additional statements to make with regard to the object of this case. ... ” C. Transcript of witness Z ’ s statement made on 17 September 2013 301. The statement made by witness Z to the prosecutor on 17 September 2013 reads, in so far as relevant, as follows: “ I, the undersigned, [ Z ] ..., declare the following: Between December 2000 and March 2004 I was the [ REDACTED ]. In this capacity I was appointed by the [ REDACTED ] to participate in the negotiations for the accession of Romania to NATO. From [REDACTED] 2004, I held the office of [ REDACTED ]. In this capacity, I had several meetings following which the first steps were taken towards setting up the military and intelligence agreements in order to fulfil the accession criteria. This was the co-called pre-accession phase, launched after the Prague meeting of 2 November 2002 during which the NATO Member States had decided that Romania was one of the next candidates for accession to NATO. In this wide negotiation process, I was designated to prepare and negotiate those documents aimed at making Romania ready for its accession to the system, by adopting those necessary operative agreements that had to be effective by the time Romania was declared a NATO member. Concretely, I/we addressed various issues concerning the pre-accession, in the area of defence and intelligence cooperation. Among those discussions, some developments or agreements took place in relation to the American flights to be operated by the CIA which had permission to fly over and land on Romanian territory. It was one of the steps that Romania had to take in order to become a NATO member and it meant fulfilling one of the conditions imposed on all partners of NATO members. From about 2003 onwards, several contacts had taken place in that direction and they resulted in concrete agreements that made possible the operation of the special American flights on Romanian territory, in different conditions from those provided for by international customs. It should be understood that those flights had a special character and they were not under an obligation to obey the usual rules imposed on civil flights. I state that according to the information I had at that time, such practice of [special] flights was current and particular to all NATO Member States. Concerning the issue of some locations that were to be provided for exclusive use by our American partners, I state that I/we insisted, and it was agreed, that in all those locations the Romanian State should have no participation and all activities were to be undertaken exclusively by the American partners under their exclusive responsibility. This way of doing it was the natural outcome of complying with the condition of attitude between allies. All the discussions in which I participated only concerned the status of the [REDACTED ]. I have no knowledge about any detention centre or prisoners taken and located on Romanian territory or about any special treatment applied to such prisoners. I only heard about this issue, and especially about prisoners taken on Romanian territory and detained here, from the press, when the international scandal exploded. I considered that those scandals were aimed at discrediting Romania ’ s accession to NATO and its capacity as a NATO member and as an ally of the United States. I appreciate that by continuing those scandals someone mostly wants to generate disputes at a high political level in the Eastern European Countries that were accepted during the last NATO accession wave. [signature] [REDACTED ] ” D. Transcript of testimony given by witness Z on 18 June 2015 302. The testimony given by witness Z to the prosecutor on 18 June 2015 reads, in so far as relevant, as follows: “ I have been informed that I will be heard as a witness concerning: the existence on Romanian territory, after 2001, of some secret detention and interrogation centres of the United States of America ’ s Central Intelligence Agency. ... I declare the following: I have been informed of the object of this criminal investigation, namely of the fact that a Saudi national, Abd Al Rahid Husseyn Mohammad Al Nashiri, complained to the Romanian judicial authorities about the fact that he, as well as other individuals suspected of being members of a terrorist organisation, had been brought to Romanian territory and held in illegal detention facilities, administered by officers of the Central Intelligence Agency (CIA) and subjected to physical and psychological torture in order for them to obtain information concerning terrorist organisations. I do not know anything about the facts this complaint refers to and, as can be easily observed, it seems that the Saudi national himself does not know any factual elements that might substantiate his complaint. I only heard about him when his complaint became a matter of public knowledge. By virtue of the public offices of [ REDACTED ] that I previously held, among which the public office of [ REDACTED ] and that of [ REDACTED ], and that of [ REDACTED ], I firmly maintain that the allegations publicly spread concerning the supposed existence, on the territory of Romania, of illegal detention centres administered by the United States of America, through the CIA, centres in which several individuals suspected of being members of a terrorist organisation or of having committed terrorist acts have been held, are nothing but simple allegations or suppositions of some persons that have nothing to do with the realities of the Romanian State. At the time of the terrorist attack of 11 September 2001 in New York, I held, as mentioned before, the office of [ REDACTED ]. On the day of the attack, the then [ REDACTED ], publicly expressed by means of an official statement the commitment of the Romanian authorities to support the USA in their fight against terrorism, by means that were to be subsequently established by common agreement, upon the request of US officials. Immediately after the terrorist attack, in the following 48 hours, [ REDACTED ] called for a meeting of the [ REDACTED], which endorsed the official statement of the [ REDACTED ]; following which Parliament also approved the [ REDACTED ] document. Immediately after those terrorist attacks, our contacts with the representatives of the US diplomatic mission in Romania and other Western diplomatic missions increased and the steps taken by Romania in order to become a NATO member were accelerated. Consequently, in November 2002, at the Prague conference of the NATO Member States, taking into account the progress made, the Heads of State and Government of the NATO Member States invited Romania to join the Alliance. It is true that US Government officials asked the Romanian authorities to offer some locations, on Romanian territory, to be used for actions of combating international terrorist threats, by the representatives of the CIA, on the same pattern as that used in the other NATO Member States. This discussion was one of principle, and finally one single location was offered, without specifying the nature of that location, whether it should have been an office or an office building or land for building some facilities, or some other form. It was understood, at that stage, in 2003, that it should be an office building in Bucharest. The requested site was to be identified and made available by the [ REDACTED]. I would make clear that I was directly in charge of these negotiations, having the coordinating role, while the person designated from the Ministry of [ REDACTED ], in charge of the discussions with the American partners, was the then [ REDACTED ]. As far as I know, [ REDACTED ] made available to the CIA, in Bucharest, one site which afterwards was converted into [REDACTED] in Romania; this is a method common to the relationships with other NATO Member States. I maintain that I never publicly admitted that, in Romania, CIA illegal detention centres had existed, with the support of the Romanian governmental authorities, in which various persons had been illegally detained, during the US-initiated State detention programme. I only stated that the Romanian authorities cooperated in the anti-terrorist war on an exchange of information basis with the American intelligence services, including the CIA, also by offering a site for the CIA activities. I do not wish to comment on the information given by the mass-media in relation to the persons that were supposed to have been illegally detained on Romanian territory in CIA-run detention centres, the source of this information being the partially published US Senate Report on the detention and interrogation of terrorism suspects programme; I consider that it is the responsibility of the USA to clarify this issue, as long as I have no knowledge of such operations on Romanian territory and I do not know anyone in connection with such a matter. The name of Abu Faraj Al-Libi, Hassan Gul, Janat Gul does not sound familiar to me, given the fact that, as stated before, I did not approve, I did not know and I was not informed of any operation for the transfer or detention of a foreign national by the CIA. Concerning the public debate on the existence of CIA directly or indirectly controlled flights with a special destination on Romanian territory, I would like to say that such flights were operated also in German, English, Italian and other territories, and that they did not represent a Romanian particularity. I have nothing else to state about the facts in this file. ... ” E. Transcripts of statements from other witnesses 303. The Government produced twenty-four transcripts of statements from twenty-three witnesses obtained during the criminal investigation, together with an English translation (see also paragraphs 12 and 17 3 above). These statements were obtained at various dates at the end of July and beginning of August 2013 and, subsequently, in September 2015. 304. Five witnesses said that in 2003-2005 they “ [did] not know anything about the aircraft with American registration ”, “ [were not] informed about special flights ”, “ [had] no knowledge regarding the flights that came or went ” or “ [did] not know any details regarding the private flights ”. 305. The statements of the remaining eighteen witnesses, in so far as relevant, read as follows. 1. Witness A 306. The transcript of witness A ’ s statement of 30 July 2013 read: “ ... I, the undersigned [ A ] [personal data], state that I work for the [ REDACTED ], as a [ REDACTED ]. From 2003 to 2005, I worked for the [ REDACTED ] at Bucharest Băneasa Airport, as [ REDACTED ]. As such, I worked mainly at the [REDACTED] and at other specific departments. In all the departments, my work was governed by the provisions of the [REDACTED] and by the working methodologies. For example, at [REDACTED], I worked in the booths placed on the entry or exit corridor, also I assisted the passengers at the boarding gate and I escorted them to the regular aircraft. Being asked about the ... planes, I don ’ t recall having heard about the mentioned aspects, namely about the disembarkation of clandestine passengers and, implicitly, I did not go to the planes referred to in the questions. There were some cases when private aircraft, according to flight plans, parked in front of the protocol lounge, where we went, together with customs officials, for the checking of documents. There were cases when, together with a RAS employee, we went to the protocol lounge for the checking of the passengers ’ documents – various officials. I declare that I do not recall cases of disembarkation of clandestine passengers. ” 2. Witness B 307. The transcript of witness B ’ s statement of 30 July 2013 read: “ ... I, the undersigned [ B ], state as follows: [ REDACTED ] founded [ REDACTED ] in 1994 with the purpose of providing handling services for the business aviation at Băneasa Airport. Together with the Airport, I promoted this type of traffic at Băneasa taking into consideration that there was hardly any traffic at the airport as the domestic Tarom flights had just moved to Otopeni. We provide handling services specific to business aviation, which means everything that is connected to the embarkation/disembarkation of passenger/cargo/mail aircraft. For the business aviation there were some specific requests different from the regular commercial aviation, meaning that, usually, business flights ’ operators sent in advance a request for services which was confirmed by our operating agents. At the specified time (2003-2005), [ REDACTED ] operating agents met the aircraft upon arrival and accompanied it upon departure together with the border guard and a customs official. For the business aircraft, our operating agents accompanied the crew and undertook the embarkation/disembarkation of the passengers/luggage. As for the transiting aircraft with American registrations, our personnel were joking about them saying that they were spies. The majority of passengers on these aircraft were men. Usually, our personnel servicing these aircraft did not enter the planes. Those responsible for the handling papers and for receiving the payment for the handling services and the airport taxes went to the aircraft and then, together with a member of the crew, came back to our office in the airport where the final handling sheet was drawn up and the payment was made. At the specified time, I was sometimes present at the airport making unannounced checks. As I did not have a uniform, I personally did not go to the aircraft. In the airport I did not notice any illicit movements in relation to the embarkation/disembarkation of passengers unknown to us or of passengers that did not go through the normal process. During the boom in private and commercial aviation, planes were parked according to their weight (the term ‘ the heavy ones ’ was used). To the question whether it was possible for a passenger to be brought in outside the legal arrival process, I do not believe that such a thing is possible. The airport had a fixed and mobile security service. I have not heard rumours about detainees being flown on the transiting aircraft with American registrations. I indicate that I was asked to provide documents about the handling of these aircraft by a parliamentary commission and that I forwarded all kind of documents, but I did not testify. Also, I would make mention of the fact that, unlike in the case of commercial aviation where the cargo is documented (by way of Pax Manifest, General Declaration, Cargo Manifest), for business aviation there are generally no documents drawn up concerning the identity of the cargo. ” 3. Witness C 308. The transcript of Witness C ’ s statement of 30 July 2013 read: “ ... I, the undersigned [ C ] [personal data], state as follows: From 2003 to 2005, I was employed by the Romanian Airport Services as [REDACTED ]. It was a [ REDACTED ] job and I was responsible for the documents necessary for take-off without going to the aircraft because I do not have a driving licence. Access to the aircraft is possible only by way of a vehicle. After the landing of an aircraft, the practice began with the movement of the Border Police, the custom agents and the airport security agents and of the RAS operating agent. With the crew ’ s approval, border police entered the aircraft and took the passports and the custom agents were present for the checking of the documents, if necessary. If the aircraft was inspected, the pilots were accompanied by the operating agent by car to the firm ’ s office. If need be, hotel reservations were made or, if they already had reservations, the agent accompanied them to the hotel without passing through the office. For vehicles from outside the airport, access was permitted only after being checked by the security agents. Also, if such a vehicle had to enter the airport premises, access was allowed only accompanied by an agent of the airport security department. I have no knowledge of any aircraft or transport of detainees undertaken by the American authorities on Romanian territory. ” 4. Witness D 309. The transcript of Witness D ’ s statement of 30 July 2013 read: “ I, the undersigned [ D ] [personal data], state as follows: From 2003 to 2005 I worked at Bucharest Băneasa International Airport in the [ REDACTED ] as [ REDACTED ]. In this position, I was responsible for the access to airport premises of authorised persons and vehicles. During that time, several private aircraft landed, but they did not come within my responsibility as I was working at a fixed point, without patrolling, and as such I had no contact with incoming/outgoing aircraft or passengers. I declare that during that time there was no patrol service in the proximity of the aircraft, the airport being guarded by the gendarmes and afterwards by a security firm. I had no knowledge about the fact that these private flights were used for the transport in/out of Romania of detainees, finding out about these things many years later in the press. ... ” 5. Witness E 310. The Government produced transcripts of two statements given by Witness E; the first of 31 July 2013, the second one of an unspecified date. 311. The transcript of the statement given on 31 July 2013 read: “ ... I, the undersigned [ E ] [personal data], state as follows: From 2003 to 2005, I was [ REDACTED ] in the airport [ REDACTED ] department at International Băneasa Aurel Vlaicu Airport and, at present, I am [ REDACTED ]. During that time, I had personal knowledge of some private flights that landed at night time at Bucharest-Băneasa airport as being flights with a special status. These flights were parked on the airport platform for about 10-15 minutes, after which they took off. I personally have knowledge of 3-4 such flights. The only person approaching these flights was [REDACTED] [ X ], who went to the aircraft in the SRI working van-type vehicle. Other persons on duty were informed early on about the arrival of these flights and did not have access to these planes. I do not know exactly whether [ X ] entered the planes or just stayed by them. I did not see anyone embarking onto or disembarking from these aircraft. The head of the security department at that time was [ REDACTED ], and the head of the control tower and air traffic navigation was [ REDACTED ]. .... ” 312. The transcript of Witness E ’ s statement of an unspecified date read: “ ... I, the undersigned E [personal data], state as follows: From 2003 to 2005, I was [ REDACTED ] in the airport [ REDACTED] department at International Băneasa Aurel Vlaicu Airport and, at present, I am [ REDACTED]. During that time, I had personal knowledge of some private flights that landed at night time on Băneasa airport as being flights with a special status. ” 6. Witness F 313. The transcript of Witness F ’ s statement of 31 July 2013 read : “ ... I, the undersigned [ F ] [personal data], state as follows: From October 2001 to January 2007, I was employed by [REDACTED] (Băneasa Airport) as [ REDACTED ]. In this capacity, according to my job description, I was responsible for the access control of persons, in the airport area, access control of vehicles in the movement area and access control to the [ REDACTED ]. With regard to the access of vehicles on the airport premises, the access of vehicles had to be authorised, all the vehicles and also their drivers were registered, had a special tag and an access permit, so that access was permitted only to the person designated to drive the vehicle, on the basis of a special permit of access to the airport premises, the identification tag where the access areas were indicated, the driving licence and a personal identification document, and for the vehicle on the basis of the vehicle ’ s identification tag and the access permit for the movement area. After the checking of the vehicle, it was necessary to obtain the authorisation of the deputy commander of the airport for access by the vehicle. After the deputy commander had given his approval, the vehicle was noted in a table, mentioning the time of entry, the number of the access permit, the identification number, and the destination within the airport ’ s premises. After the access of the vehicles or of the vehicle a second check was operated by the SRI. It follows that the access of the vehicles, as well as the access of the persons who were accompanied to the access areas of the airport for identification control, etc., was carried out according to the strict rules of the airport security. ” 7. Witness G 314. The transcript of Witness G ’ s statement of 1 August 2013 read: “ ... I, the undersigned [ G ] [personal data], state as follows: From 2003 to 2005 I worked at Bucharest Băneasa Airport in the [ REDACTED ] Department as [ REDACTED ], receiving knowledge relating to the flights with the ‘ N ’ call sign, that were announced as special flights to which we were not requested. Generally, these were night flights that arrived for refuelling, and to this effect the operator handling the refuelling would go to the plane. If there was a request for a handling agent, somebody from RAS would go. ... ” 8. Witness H 315. The transcript of Witness H ’ s statement of 1 August 2013 read: “ ... I, the undersigned [ H ] [personal data], state the following: Starting in 2003 and up to February 2004 I worked for the [ REDACTED ] of Băneasa International Airport as [ REDACTED ]. I handled the security checks of foreign and Romanian citizens entering/exiting Romania and who were in transit across the Romanian border, in compliance with the orders given by the shift chief and the flight plan established for each workday. I processed according to the flight plan all the flights with the ‘ N ’ call sign, without them having a stop in Bucharest. All the passengers from the flights were processed pursuant to the law. I did not see amongst the passengers of the planes individuals with special status, wanted at national or international level. ... ” 9. Witness I 316. The transcript of Witness I ’ s statement of 1 August 2013 read: “ ... I, the undersigned [ I ] [personal data], state the following: From 2003 to 2005 I worked for the Romanian Airport Services as [ REDACTED ]. I handled the servicing of planes that landed at or departed from Bucharest Airport. As part of my job assignment I also handled refuelling, catering, and receiving payments for handling services. It is worth mentioning that a file exists with all the flight details for all the planes that landed or departed. If there is such a file, it means that that flight landed at or departed from Băneasa Airport. Regarding the American flights with the ‘ N ’ call sign, as in the case of planes flying under other flags, my duty was to provide refuelling, crew transport from the airport to the hotel, catering services, weather reports. Usually, when a technical stop was involved, I would go to the plane alone, accompanied only by the driver of the refuelling vehicle. I declare that I never saw a detainee – passenger, especially of Arab origin, being boarded or disembarked onto/from a plane, American or otherwise. ... ” 10. Witness J 317. The transcript of Witness J ’ s statement of 2 August 2013 read : “ ... I, the undersigned [ J ] [personal data], state the following: From 2003 to 2005 I worked as [ REDACTED ] at [ REDACTED ] handling the checking of documents needed to cross the State border, in both directions. Regarding the private flights that landed in or departed from Romania, these were processed at the Protocol Lounge of the airport; the individuals were taken from the plane by an RAS car and were brought to the reception area and processed according to the work procedure. I also declare that there was no need for an operational team to go to the plane, as the passengers were brought to the reception area. Likewise it is not possible for the passengers to be taken into unauthorised vehicles and leave the airport premises without passing through the specially designated checkpoints. Personally, I did not see any individual who was boarded onto or disembarked from the American planes, other than the crew and the passengers that we checked. ... ” 11. Witness K 318. The transcript of Witness K ’ s statement of 2 August 2013 read : “ ... I, the undersigned [ K ] [personal data], state the following: From 2003 to 2005 I was employed at [ REDACTED ] and I handled the services being provided by the airport to planes that were arriving at or departing from Băneasa International Airport. The services included refuelling the planes, cleaning, handling crew transfer to and from the airport. In practice, communication was established with the crew who made the request for services and then we organised the teams, according to the request. Regarding the flights under the American flag, these were flights with a technical stop at Băneasa Airport (refuelling). I did not see any passengers disembarking from or boarding these planes. Also, in order for a car to have access to the parking platform outside the airport, they would require an authorisation issued by the airport administration. ... ” 12. Witness L 319. The transcript of Witness L ’ s statement of 2 August 2013 read: “ ... I, the undersigned [L] [personal data], state the following: – Between 2003 and 2005 I was an employee of Băneasa Airport [ REDACTED ]. – As part of my job description, I handled the access of employees and vehicles that entered the secure area of the airport. – Regarding the private flights under the US flag, I declare that nothing suspicious caught my attention. – I did not see any individuals that might have detainee status who were handcuffed and who were boarded onto or disembarked from the private flights that landed at the airport. ... ” 13. Witness M 320. The transcript of Witness M ’ s statement of 2 August 2013 read: “ ... I, the undersigned [ M ] [personal data], state the following: Between 2003 and 2005 I worked as [ REDACTED ] for Băneasa Airport [REDACTED] and I handled security inside the airport at personnel access and vehicle and personnel checkpoints; it was not part of my job description [illegible] activities with the planes that entered or exited the platform. We were [not] informed about the special flights not even by the shift manager. They were handled by the deputy commander, the border police, transport police, customs and RIS. ... ” 14. Witness N 321. The transcript of Witness N ’ s statement of 5 August 2013 read : “ ... I, the undersigned [ N ] [personal data], state the following: From 2003 to 2005 I worked for the Ministry of [ REDACTED ] at Băneasa Airport, as [ REDACTED]. I declare that in 2006 I worked at REDACTED] and until that date I had processed documents alongside [petty –sic!] officers with more work experience as I had arrived in Bucharest from the [REDACTED]. I have knowledge of private planes landing at Băneasa Airport but I did not note anything out of the ordinary when they landed. When private planes landed, RAS employees would go by bus, pick up the pilots and bring them to the Border for travel documents processing. ” 1 5. Witness O 322. The transcript of Witness O ’ s statement of 5 August 2013 read: “ ... I, the undersigned [ O ] [personal data], state the following: Between 2003 and 2005 I worked for [REDACTED ] as [ REDACTED ]; as part of my job I provided services to planes that landed at Băneasa International Airport, private and charter flights. During that time, several private flights with US-registered aircraft were operated. These flights went according to plan, carrying business people. One evening, after dawn, a plane landed that was treated differently, as officials from the airport and from the Counter-terrorism squad asked us to stay in the office and not go out to the plane that was about to land. We complied with the request. I cannot recall the date of the flight or the call sign. I never saw a similar case in my time working for [ REDACTED ]. At that time I did not know the nature of those flights, and I also did not know whether similar flights were operated at Băneasa Airport. After being asked, I can confirm that on the airport ’ s platform vehicles cannot gain access without prior approval/permission. ... ” 1 6. Witness P 323. The transcript of Witness P ’ s statement of 5 August 2013 read: “ ... I, the undersigned [ P ] [personal data], state the following: Between 2003 and 2005 I worked at [ Government Editor ’ s note : Bucharest - Băneasa International Airport – Aurel Vlaicu] in [ REDACTED ]. I know that special flights were operated at night and in the time frame noted above I saw a plane without a call sign that was positioned in the middle lane of AIBB – AU platform, on the north side. I saw the following activity going on at the side of the plane: - Activities carried out by RAS handling operators; - A passenger disembarking accompanied by a dog, pit bull or Amstaff, and they walked around the plane and after approximately 10 minutes they boarded the plane. I note that the procedure for transporting pets was violated. Pets can be transported in cages that are stored in the plane ’ s hold, in the plane only ... can travel. The plane parked on the AIBB - AV was a GOLF that did not require a mobile stairway, the plane being equipped with an airstair on the plane ’ s door. The individual who disembarked with the dog was dressed in dark overalls with military boots. ... ” 1 7. Witness Q 324. The transcript of Witness Q ’ s statement of 6 August 2013 read: “ ... I, the undersigned [ Q ] [personal data], state the following: Between 2003 - 2005 I worked for [REDACTED] as [ REDACTED ], being subsequently promoted to [ REDACTED ]. In this position, I serviced flights that operated at Băneasa Airport, namely check-in procedures, boarding/disembarking, luggage transport and passenger transport from the plane to the terminal and vice-versa and also providing the services requested by the crew (cesspool emptying, drinking water, catering, etc.). Several flights under the US flag arrived during this time and there were no other special services provided that were different from those provided to any other flight that arrived at Bucharest Băneasa Airport. I do not have any knowledge of any special activity that was provided for these flights. ... ” 1 8. Witness R 325. The transcript of Witness R ’ s statement of 8 September 2015 read: “ ... I am [REDACTED], from the founding of this institution in [REDACTED] 2002 to the present day. The offices of the institution are found in Bucharest, [ REDACTED ]. From the setting up of the institution to the present day we have always had the same location (with an adjacent location, similar to an interior garden, plus 1 meter of ground all around). Since the time this building was assigned to its present purpose, there have been no major modifications, such as the building of annexes, of other buildings, interior redecoration, etc. From the analysis of the annual budgetary execution of the institution, one can observe that there were no major funds allocated that may be suspected of being used for the setting up of spaces that could be used as secret detention centres, as some media outlets absurdly assert. In other words, since the founding of the institution, which was already mentioned, to the present, our headquarters have never been used as a detention centre for persons suspected of terrorist acts by the CIA or by other governmental institutions, national or foreign, and no activities in relation to this subject have taken place. By its nature, the building [where the ORNISS is located] cannot be used for such a purpose. I am aware of the information circulating in the public space, national or international, about the fact that the [ORNISS] building has been used as a location for the detention of persons suspected of terrorism by the CIA and I strongly affirm that these are merely fallacies. I declare that the institution [ REDACTED ], including its location, is regularly subject to checks by the competent institutions within NATO and the European Union. During these checks, no indications regarding the involvement of the [ORNISS] in the detention of persons suspected of terrorism, from the setting up of the institution and afterwards, have been identified. The activity of the institution is governed by the [ REDACTED]. Anyone [REDACTED] will notice that the [ORNISS] is not a part of the national system of preventing and countering terrorism or of the national system of public order and national security even though, due to the specific nature of its activity, it collaborates with institutions involved in the said systems. Neither personally, nor institutionally, do I/we have relevant information about this subject (the prevention and fight against terrorism). I declare that, after the September 11 2001 attacks, we were never asked to participate in the activities meant to establish the type of help that Romania was to offer the United States of America to help with the prevention and fight against terrorism. ... ” XI. OTHER DOCUMENTARY EVIDENCE BEFORE THE COURT A. RCAA letter of 29 July 2009 326. The applicant produced the RCAA letter to the APADOR ‑ CH, dated 29 July 2009 (see also paragraph 11 3 above), which read, in so far as relevant, as follows: “ The Romanian Civil Aeronautical Authority located in ... represented by ... in compliance with the stipulations of the court decision no. 3580 of 15 December 2008 pronounced by Bucharest District Court, we hereby present in the annex to this document the answers to your inquiries included in address no. 261/07.08.2008. Annex to the address no. 19602 of 29.07.2009 General specification: The data provided below do not indicate with certainty that these flights were carried out. According to the regulations in effect and applicable on the respective dates, AACR does not have any document that would identify the actual performance of these flights. The information represents planned intentions that AACR was notified about. ... 01.01.2003 – 31.12.2003 N313P – 2 flights N478GS – 1 flight N379P – 1 flight N85VM – we do not have any records of the requested information N227SV – we do not have any records of the requested information N2189M – 2 flights 01.01.2004 – 31.12.2004 N313P – 2 flights N478GS – we do not have any records of the requested information N379P – we do not have any records of the requested information N85VM – we do not have any records of the requested information N227SV – we do not have any records of the requested information N2189M – we do not have any records of the requested information Answer for point 3: 01.01.2003 – 31.12.2003 N313P – 2 flights 1. Flight itinerary (departure sites, stop sites, destination place): Constanţa - Rabat Airport(s) in Romania where it landed: Băneasa The date of landing and the date on take-off: 23.09.2003; we do not hold any recordings of the date when it took off Flight purpose: private non-commercial Number of people present on board of the aircraft at landing and the number of people present on board of the aircraft at take-off: - in Romania, it is not mandatory to report the number of people (crew and passengers) - Crew – - Passengers: 9 (according to the date provided by the applicant). 2. Flight itinerary (departure sites, stop sites, destination place): Szczytno – Constanţa Airport(s) in Romania where it landed: Băneasa The date of landing and the date of take-off: 22.09.2003; we do not hold any recordings of the date when it took off Flight purpose: private non-commercial Number of people present on board of the aircraft at landing and the number of people present on board of the aircraft at take-off: - in Romania, it is not mandatory to report the number of people (crew and passengers) - Crew – - Passengers: 9 (according to the date provided by the applicant) ... 01.01.2004 – 31.12.2004 N313P – 2 flights Flight itinerary (departure sites, stop sites, destination place): we do not hold any records of the departure site – Timişoara Airport(s) in Romania where it landed: Timişoara The date of landing and the date on take-off: 25.01.2004; we do not hold any recordings of the date when it took off Flight purpose: maintenance refuelling stop Number of people present on board of the aircraft at landing and the number of people present on board of the aircraft at take-off: - Crew – we do not hold any records of the requested information - Passengers – we do not hold any records of ... ” B. List of twenty -one “ suspicious flights ” produced by the Government 327. As part of documents included in the investigation file, the Government produced tables containing details of twenty flights labelled as “ suspicious ”. The tables, which included such data as flight numbers, dates, types and purposes of flights, type of journey, final routes, flights operators, organisers, aircraft, crew, passengers as well as names of the Romanian handling personnel and the Border Police and airport security personnel were available to the Court and the applicant in a full, unredacted version. For the purposes of the non-confidential part of the procedure before the Court, the flight data can be summarised as follows. (a ) Four out of twenty -one flights occurred before 23 September 2003. The three landings en route from or to Baku took place in Bucharest Băneasa Airport on 24 April, 9 May and 16 June 2003, respectively. One landing, en route from Amman occurred in Constanţa Mihail Kogălniceanu Airport on 13 June 2003. (b ) The remaining seventeen flights took place between 23 September 2003 and 5 November 2005. (c) The fifteen flights into in Bucharest Băneasa Airport took place on the following dates: - 23 September 2003, flight N313P - 26 October 2003, flight N379P - 25 January 2004, flight N313P - 27 January 2004, flight N85VM - 12/13 April 2004, flight N85VM - 1 August 2004, flight N288KA - 5 December 2004, flight N478GS - 6 December 2004, flight N478GS - 18 February 2005, flight N787WH - 23 July 2005, flight M308AB - 28 July 2005, flight N308 AB - 21 August 2005, flight N860JB - 6 October 2005, flight N308AB - 20 October 2004, flight N789DK - 5 November 2005, flight N1HC (d) The two flights into Constanţa Mihail Kogălniceanu Airport took place on the following dates: - 1 February 2004, flight N227SV - 25 August 2004, flight N308AB C. Documents concerning the N 313P rendition mission on 16 ‑ 28 January 2004 produced by Senator Marty and Mr J.G.S. in the course of the PowerPoint presentation 328. In the course of their PowerPoint presentation (see also paragraphs 36 7 -37 6 below ), Senator Marty and Mr J.G.S. produced a number of documents, including flight logs for the N 313P rendition circuit on 16 ‑ 28 January 200 4, as well as a ground handling note and air navigation sheet filed by the Romanian authorities in connection with the N313P ’ s landing in Băneasa Bucharest City Airport on 26 January 2004. According to the flight logs records, N313P departed from Washington on 16 January 2004 flying to Shannon, Ireland. On 17 January 2004 it left Shannon for Larnaca, Cyprus where it stayed for four days, until 21 January 2004. On the latter date, at 18:39 it took off for Rabat Morocco, arriving there at 23:48. It departed from Rabat to Kabul, Afghanistan on 22 January 2004 at 02:05, arriving there at 9:58 and then left Kabul for on the same day in the late afternoon for Alger, Algeria. After staying around one and a half hours in Alger, the plane left at 21.36 for Palma de Mallorca, Spain, landing there late in the evening. The next day, i.e. 23 January 2004 the plane left for Skopje, Macedonia, landing there at 19:51. On 24 January 2004 at 01:30 N313P departed from Skopje to Baghdad, Iraq and, after a stopover lasting some one hour, left for Kabul at 07:15. On 25 January 2004 it departed from Kabul at 18:23 and arrived at Băneasa Bucharest Airport on the same day at 23:51. The plane stayed in Bucharest for slightly over one hour and took off from there to Palma de Mallorca on 26 January 2004 at 01:03. It stayed in Palma de Mallorca until 28 January 2004 and left for Washington at 10:08 on that day. The flight was operated by Stevens Express Leasing Inc.. 329. The ground handling charge note (no. 00077/04) was issued for N313P (airline: “ Business Jet Solutions ” ) by the RAS in Băneasa -Bucharest City Airport on 26 January 2004 and included landing, lighting and navigation services fees amounting in total to EUR 2,678 / 3,416 US dollars (USD). It indicated the actual arrival date/time as “ 26.01.04 01:22 ” and an identical date and time as the “ estimated departure date/time ”. 330. The air navigation sheet (no. 174) was issued by the Romanian Air Traffic Services Administration ( “ ROMATSA ” ) on 26 January 2004 for N313P (airline: “ Business Jet Solutions ” ). It included navigation services amounting to USD 631.40. It indicated the landing time as 23:35 on 25 January and the take-off time as 00:40 on 26 January 2004. D. The 2010 Findings of the Lithuanian Seimas Committee on National Security and Defence (extracts) 331. The applicant produced a copy of the Lithuanian Parliament – Seimas – document setting out the Seimas Committee on National Security and Defence ( “ CNSD ” ) findings concerning the possible transportation of persons to and incarceration in the territory of the Republic of Lithuania by the CIA ( “ the CNSD Findings ” ). The document included findings made in the course of a parliamentary investigation conducted by the CNSD in connection with publicly voiced allegations concerning the CIA detention facilities in Lithuania, and those findings were endorsed by the Seimas in its resolution No. XI-4 59 adopted on 19 January 2010 (for further details see Abu Zubaydah v. Lithuania, cited above, § 17 4 ). 332. Sections relating to the CIA rendition aircraft relevant to the present case read as follows: “ In the course of the investigation, the Committee established that three occasions of crossing of Lithuania ’ s airspace were omitted in the mentioned reply to Dick Marty, ..., and in the data provided by the state enterprise Oro navigacija : ... (3) ’ Boeing 737 ’ no N787WH, landed in Vilnius on 6 October 2005; ... When comparing the submitted data with the material of the Temporary Committee of the European Parliament, it was established that: Two CIA-related aircraft landed at Vilnius International Airport: ... (2) ’ Boeing 737 ’, registration no N787WH (6 October 2005, route Antalya-Tallinn-Vilnius-Oslo. A letter of Vilnius International Airport dated 7 December 2009 states that this aircraft arrived from Tirana at 4.54 am and departed at 5.59 am. According to the documents of the SBGS [the State Border Guard Service], this aircraft arrived from Antalya and departed for Oslo). ... During the investigation, three occasions were established on which, according to the testimony of the SSD [the State Security Department] officers, they received the aircraft and escorted what was brought by them with the knowledge of the heads of the SSD : ... ( 2) ’ Boeing 737 ’, registration No. N787WH, which landed in Vilnius on 6 October 2005. According to the data submitted by the SBGS, its officers were prevented from inspecting the aircraft; therefore, it is impossible to establish whether any passengers were on board the aircraft. No customs inspection of the aircraft was carried out; ... ” E. Mr Hammarberg ’ s affidavit of 17 April 2013 333. The applicant produced an affidavit made by Mr Hammarberg on 17 April 2013. That document read as follows: Affidavit of Thomas Hammarberg “ 1. I, Thomas Hammarberg, served as Council of Europe ’ s Commissioner for Human Rights during 2006-2012. I now work on specific human rights projects for the United Nations and the European Union. 2. During my tenure as the Council of Europe ’ s Commissioner for Human Rights, I obtained information on methods used in the efforts to respond to terrorist activities and to prevent further terrorist violence. I had to conclude that some of the governmental measures during these efforts contradicted agreed standards of human rights. I summarised my concerns in two ‘ Human Rights Comments ’, published in September 2011 ... (The two comments are submitted as Attachments A and B to this affidavit). 3. My office assembled a considerable amount of data and other information relating to CIA secret detention and extraordinary rendition in Europe through our contacts with credible confidential sources, investigative journalists, expert non-governmental organisations, and lawyers acting on behalf of prisoners. Information on flights associated with extraordinary rendition was obtained from the relevant flight control agency in Europe and could be compared with similar local airport data. I was assisted in the compiling of all of this data and information by an expert colleague, [Mr J.G.S.]. 4. In the case of Romania, I became convinced that the information that we had obtained showed that the U.S. Central Intelligence Agency had kept suspects detained in a location in Bucharest for the purpose of interrogation. I raised this issue several times with Romanian diplomats asking for a serious investigation into this matter, to no avail. 5. On 30 March 2012, I delivered a dossier to the Romanian diplomatic mission in Strasbourg for the General Prosecutor in Bucharest. The purpose was to encourage the General Prosecutor to initiate such an investigation. 6. I had previously submitted information of a similar kind to the General Prosecutor in Warsaw which became part of its investigation into the CIA detention facility in Poland. 7. In the communication to the General Prosecutor in Bucharest, I had recommended that ‘ this important matter be subjected to judicial scrutiny, by means of opening a prosecutorial investigation, at the earliest possible juncture ’. 8. Neither myself nor my successor as Human Rights Commissioner received any formal response to the dossier. 9. The dossier submitted to the General Prosecutor at a minimum contains sufficient material to justify a serious investigation into serious human rights abuses associated with CIA secret detention and rendition operations in Romania. 10. I am of course aware that confidentiality is protected by governments on aspects of methods used in countering terrorism. This should be respected when relevant but not accepted as a justification for not addressing well substantiated requests for investigations into serious human rights violations, including torture. Such a policy will promote impunity. 11. I hereby officially submit the dossier I provided to the Romanian General Prosecutor, which was kept confidential until recently. (The dossier is submitted as Attachment C to this affidavit). Tbilisi, 17 April 2013 Signed Thomas Hammarberg ” F. Dossier (Memorandum) of 30 March 2012 provided by Mr Hammarberg to the Romanian Prosecutor General ( extracts ) 334. An introductory part of the dossier (attached as Attachment C to the above-mentioned affidavit), read, in so far as relevant, as follows: “ Introduction 1. My Office has prepared the present submission pursuant to some discussions with the Permanent Representative of Romania to the Council of Europe, which followed my publication of two Human Rights Comments in September 2011. I have assumed that it is in our common interest to establish the truth and secure accountability in respect of detention and interrogation activities reported to have been earned out at a secret prison facility ( ‘ Black Site ’ ) operated by the US Central Intelligence Agency ( ‘ CIA ’ ) on the territory of Romania in the context of the ‘ war on terror ’. 2. Within the terms of my mandate, I have attempted to assemble as much credible factual material as possible regarding the operations of the CIA Black Site in Romania Towards this end I have drawn upon original investigation and analysis undertaken by my Office during the six years of my mandate as Commissioner, as well as the work and findings of other Council of Europe bodies in the same period, notably the inquiries led by the Parliamentary Assembly and its former Rapporteur, Senator Dick Marty, as reflected in his reports published in 2006 and 2007. 3. The sources for our submission include official US Government documents describing CIA operations (many of which have been declassified as a result of litigation under the Freedom of Information Act, or emerged from other court proceedings), flight records and aeronautical data amassed from diverse entities across the global aviation sector (and especially in the countries that hosted CIA operations), and excerpts of interviews with former CIA detainees earned out by delegates of the International Committee of the Red Cross (ICRC). Reports produced by investigative journalists, notably as a result of a collaboration between the Associated Press and German public television ARD Panorama, have also enabled specific elements of the CIA operations in Romania to be verified and corroborated. ... 4. It is my view that sufficient evidence has now been amassed to allow us to consider the existence of a CIA Black Site in Romania as a proven fact, and to affirm that serious human rights abuses took place there. Nonetheless, it remains the role and responsibility of the Romanian authorities to establish the full circumstances of what happened, including the extent and nature of any crimes that occurred. In order to fulfil Romania ’ s positive obligations under the European Convention on Human Rights, I believe it is now imperative that the Romanian authorities conduct a prosecutorial investigation capable of leading to the identification and punishment of those responsible, whoever they might be. ... ” 335. The dossier described “ The Anatomy of detention operations at the CIA Black Site in Romania ”. The section relating the opening of the “black site ” read, in so far as relevant as follows: “ 6. The opening of the CIA Base codenamed ‘ Bright Light ’, and the start of detention operations at the CIA Black Site in Romania, was marked by a flight into Bucharest Băneasa Airport (LRBS) on the night of 22 September 2003. Flight records show that the Boeing 737 aircraft, registered with the FAA as N313P, arrived at Băneasa at 21h31m GMT that night in the course of a four-day flight ‘ circuit ’, during which it landed in and departed from a total of six different foreign territories, as well as the US naval installation at Guantánamo Bay, Cuba. ... 9. In particular, though, the highlighted route flown between Szymany, Poland - the airfield closest to the location of the CIA ’ s first European Black Site - and Bucharest, Romania was significant because it was the first time in the history of the CIA Rendition and Detention Program that the CIA engaged in its trademark practice of ‘ dummy ’ flight planning for its routes into and out of Romania. ... ” 336. It further referred to false flight plans made for N313P for the above circuit including Băneasa Airport on 23 September 2003: “ 11. False flight plans in respect of Romania - customarily filed on behalf of the CIA by its well-known aviation services contractor Jeppesen International Trip Planning ( ‘ Jeppesen ’ ) – consistently featured an airport of departure (ADEP) and / or an airport of destination (ADES) that the aircraft never actually intended to visit. The CIA ’ s deliberate trend, which it began on 22 September 2003 and continued for more than two years, was to avoid listing Bucharest (LRBS) as its express destination. If Bucharest was mentioned at all in these flight plans, then it was usually only as an alternate, or back-up airport, on a route involving Constanţa (LRCK) or Timișoara (LRTR), for example. ... 13. It is noteworthy that in the penultimate line of this plan (highlighted yellow), Jeppesen invoked a very important ‘ special status ’, or STS, designation that is supposed to be used only in strictly limited circumstances: ‘ STS/STATE ’. In filing this designation, Jeppesen claimed an official status for N313P as a diplomatic or state aircraft, only one notch below the aircraft that carry Heads of State [STS/HEAD] The flight plan therefore confirms that the mission of N313P, as well as its cover-up, was known about and authorized in the highest echelons of the US Government, as well as in the authorities of the receiving state, Romania. N313P shares this STS designation with the majority of CIA detainee transfer flights into Europe we have analysed. ” 337. The dossier also listed further detainee renditions into the CIA ” black site ” in Romania, with sources of evidence being explained as follows : “ Based on having unpicked the practice of ‘ dummy ’ flight planning and, in respect of several key landings of CIA rendition aircraft, having obtained original documentary records from agencies inside Romania, we have been able to compile a substantial, albeit non-exhaustive list of disguised rendition flights into Bucharest, all of which bore the character of ‘ detainee drop-offs ’. Beginning with the landing of N313P that marked the opening of the CIA Black Site in Romania, the most significant of these flights can be summarised as follows. ... ” The list of rendition flights included: “ i. N313P landing at 21h31m GMT on the night of 22 September 2003, assessed to have been bringing in at least two CIA detainees from Szymany. POLAND, ‘ dummy ’ flight plans filed featuring Constanţa (LRCK); ii. N313P landing at 23h51m GMT on the night of 25 January 2004 (assessed to have been bringing in CIA detainee(s) from Kabul. AFGHANISTAN, ‘ dummy ’ flight plans filed featuring Timisoara (LRTR); iii. N85VM landing at 23h14m GMT on the night of 26 January 2004 (assessed to have been bringing in CIA detainee(s) from Amman. JORDAN, ‘ dummy ’ flight plans filed featuring Constanţa (LRCK); iv. N85VM landing at 21h47m GMT on the night of 12 April 2004 (assessed to have been bringing in CIA detainee(s) from US Naval Base, GUANTÁNAMO BAY, via a technical stopover in Tenerife, ‘ dummy ’ flight plans filed featuring Constanţa (LRCK); v. N288KA landing at 21h24m GMT on the night of 31 July 2004 (assessed to have been bringing in CIA detainee(s) from Kabul, AFGHANISTAN and from Amman, JORDAN, ‘ dummy ’ flight plans filed featuring an unspecified destination; vi. N787WH landing at 09h45m GMT on 18 February 2005 (assessed to have been bringing in CIA detainee(s) from Rabat, MOROCCO, ‘ dummy ’ flight plans filed featuring Constanţa (LRCK); vii. N308AB landing at circa 21h00 GMT on 26 May 2005 (assessed to have been bringing in CIA detainee(s) from Amman, JORDAN, ‘ dummy flight plans filed featuring an unspecified destination ); viii. N860JB landing at 19h34m GMT on 21 August 2005 (assessed to have been bringing in CIA detainee(s) from Kabul. AFGHANISTAN, ‘ dummy ’ flight plans filed featuring Constanţa (LRCK). ” 338. The life-cycle of the CIA ” black site ” in Romania was described as follows: “ 15. Our investigations into the CIA ’ s Black Sites in Europe have enabled us to understand the underlying transience of the CIA ’ s individual detention facilities. Simply put, we have found that each CIA Black Site had a unique individual life-cycle. 16. The timing of operations on each host territory of a CIA Black Site was highly sensitive and sometimes resulted from abrupt changes in conditions. Factors influencing not only the choice of location for a Black Site, but also the length of its life-cycle, included the CIA ’ s relationships with foreign liaison services/operational partners in the respective host territories, and the CIA ’ s determination to evade detection or exposure of any aspect of its RDI Program. 17. Such was the cyclical nature of the CIA ’ s Program, the mantle of most significant venue for detention and interrogation operations shifted from one host territory to another in periods measured by months. Thailand hosted ‘ Black Site No 1 ’ near Bangkok and was the sole ‘ Customized HVD Facility ’ for just under nine months (27 March to 4 December 2002). Poland, host of ‘ Black Site No 2 ’ at Stare Kiejkuty, followed immediately and remained in operation for just under ten months (5 December 2002 until 22 September 2003). 18. Such was the expansion of the CIA ’ s HVD Program in the course of 2003, it is not possible to say thereafter that one single site remained predominant for the entirety of its existence However, for a period of at least one year, beginning with its opening on 22 September 2003, the mantle of most significant site passed to Romania, which hosted ‘ Black Site No. 3 ’ in Bucharest. 19. Information otherwise gathered regarding the life-cycle of the CIA Black Site in Romania includes the following: The CoE Marty Inquiry found that ‘ Romania was developed into a site to which more detainees were transferred only as the HVD Program expanded ’, and that ‘ the Romanian Black Site was incorporated into the Program in 2003, attained its greatest significance in 2004. and operated [at least] until the second half of 2005. ’ The Associated Press has reported that ‘ The Romanian and Lithuanian sites were eventually closed in the first half of 2006 before CIA Director Porter Goss left the job. Some of the detainees were taken to Kabul, where the CIA could legally hold them before they were sent to Guantánamo. Others were sent back to their native countries. All the prisons were closed by May 2006, and the CIA ’ s detention and interrogation program ended m 2009 ’; and ABC News reported on December 5, 2005 that ‘ two CIA secret prisons operat[ed] in Eastern Europe until [November 2005] ’ - presumed to have been in Romania and one other country - and that ‘ the United States scrambled to get all the [detained al-Qaeda ] suspects off European soil before Secretary of State Condoleezza Rice arrived there today. ” 339. The description of the operating conditions for the CIA “ black site ” in Romania and of its physical location, capacity and layout read, in so far as relevant, as follows: “ 20. As a result of the aforementioned AP/ARD collaboration, the exact whereabouts, capacity and layout of the CIA Black Site in Romania have been established for the first time. The prison facility was operated in an underground basement that forms part of the building complex housing the National Registry Office for Classified Information (ORNISS), at No 4 Strada Mures, Sector 1, Bucharest. 21. It is significant that the facility was found to have been located in the northern part of downtown Bucharest, as this accords with the CIA methodology of maintaining only a short drive between the rendition airfield, Băneasa Airport, and the detention site. ” 340. Operating agreements and authorisations on the part of the Romanian authorities were related, in so far as relevant, as follows: “ 23. Recent reporting appears to offer more information than was previously known about the proprietary character of the building(s) in which the CIA Black Site in Romania was housed, and the means by which the premises was appropriated and renovated. There is a precedent in this regard the equivalent CIA Black Site in Poland was a constituent part of an existing state facility that was ‘ loaned ’ to the CIA – situated inside the Polish military intelligence base at Stare Kiejkuty. 24. In the case of Romania, the creation and operation of the National Registry Office for Classified information (ORNISS), as a result of Romanian Government Emergency Ordinance No 153 of 7 November 2002, coincided with an important development in the operations of the CIA Rendition, Detention and Interrogation Program, as follows: • The New York Times has reported that Kyle ‘ Dusty ’ Foggo, the then serving Chief of CIA Logistics in Europe (stationed in Frankfurt), agreed in March 2003 to an assignment to ‘ oversee construction ’ of CIA Black Sites in Romania and two other locations. 25. It is clear that there exists a set of official documents according to which the basis for the CIA ’ s operation of a secret detention facility on Romanian territory was agreed, and its operational permissions and protections were authorised. The Council of Europe ’ s understanding on this issue was contained in the Marty Report of 2007 in the following terms: • ‘ that the most important documents at issue have the character of ‘ bilaterals ’, derived from the application of the wider NATO framework to US-Romanian counterterrorism cooperation m the course of the ‘ war on terror ’. ” 341. Section relating to treatment of detainees held in Romania reads, in so far as relevant: “ 33. Notwithstanding the individual interrogation regimes designed specifically for individual detainees, the CIA reported to the US Department of Justice in 2005 that a set of six Standard Conditions of CIA Detention were being applied routinely to detainees held in the CIA ’ s detention facilities – including at the CIA Black Site in Romania. These conditions included forms of treatment that might in themselves have ramifications for compliance with the ECHR, including the use of blindfolding or hooding, forced shaving of hair, indefinite periods of incommunicado solitary confinement, continuous white noise, continuous illumination using powerful light bulbs, and continuous use of leg shackles (in some instances for 24 hours a day). ” 342. According to the dossier HVDs were brought to Romania either to be interrogated using EITs or after a prior interrogation at other “ black sites ”. The first category of the HVDs included Janat Gul and Mustafah Faraj Al-Azibi (Abu Faraj Al-Libi). The second included Khalid Sheikh Mohammed, Walid Bin Attash (aka “ Khallad ” ), Ramzi Binalshibh and Abd Al Rahim Al-Nashiri. It was added that the list of detainees included in the dossier was not exhaustive and that, according to some reports, there had been between two and four further detainees held in Romania at various junctures between 2003 and 2006. The section concerning the applicant read as follows: “ Abd al-Rahim Al-Nashiri • Arrested: October 2002 Dubai, UAE • Previously held: Dubai, Afghanistan, Thailand, Poland, Morocco, Guantánamo Bay •Subjected in Poland to several ‘ unauthorised techniques ’, including incidents described by the CIA Inspector General as the ‘ most significant abuses ’ in the CIA Program Transferred to CIA Black Site in ROMANIA 12 April 2004 N85VM flight Guantánamo Bay (MUGM) – Bucharest (LRBS) • Debriefing subsided considerably beyond February 2004 and is not known to have been subjected to EITs in Romania. ” G. Mr Hammarberg ’ s replies to questions put to him in writing by the Court and the parties 343. The Court decided to hear evidence from Mr Hammarberg at the fact-finding hearing. However, since Mr Hammarberg was not available on the hearing date, the Court and the parties addressed questions to him in writing. Mr Hammarberg ’ s written replies were received at the Court ’ s Registry on 9 June 2016. 1. The Court ’ s questions 344. The Court ’ s questions started form the following introduction: “ In your ( a) ’ Human Rights Comments - Europeans must account for their complicity in CIA secret detention and torture ’, published on 5 September 2011; ( b) Memorandum, entitled ‘ Advancing accountability in respect of the CIA Black Site in Romania ’ ( ‘ the Memorandum ’ ) of 30 March 2012; and ( c) affidavit ( ‘ the Affidavit ’ ) of 17 April 2013, produced by Mr Al Nashiri, you refer, among other things, to Romania ’ s complicity in CIA secret detention, the operation of the CIA detention facility in Bucharest from 22 September 2003 to an unspecified date in the second half of 2005, presumably November 2005 and Mr Al Nashiri ’ s rendition to Romania on 12 April 2004. ” Question 1: “ On the basis of evidence known to you and, in particular, collected in 2006-2012, i.e. during your term as the Council of Europe ’ s Commissioner for Human Rights, can it be said that at the material time (22 September 2003- unspecified date in the second half of 2005, presumably November 2005) Romania knew, or ought to have known of the operation of the CIA rendition programme on its territory and was aware of the existence of the CIA detention facility in Bucharest, designed for interrogation of terrorist-suspects in CIA custody? ” Answer: “ As I stated in my Memorandum of 30 March 2012, it was my view in 2012 that sufficient evidence had been amassed to allow me to consider the existence of a CIA Black Site in Romania as a proven fact, and to affirm that serious human rights abuses took place there (§ 4 of the Memorandum). These operations were, of course, conducted under extreme secrecy. In the case of Poland and Lithuania, it has been established that only a very few high level decision makers were at all informed and had given their confidential consent to the establishment of the interrogation centres. The operation of the centres was totally in hands of CIA officials. It is likely that the situation in Romania was similar. The point I sought to make, at the time of transmitting the Memorandum to the Romanian Prosecutor, was that there was enough prima facie evidence to make it necessary to start a thorough investigation. My aim was to demonstrate the compelling need for a judicial investigation and to assist such procedure through sharing our information. ” 345. Question 2: “ In the Memorandum you stated that Mr Al Nashiri was transferred to the ‘ black site ’ in Romania on 12 April 2004 on the CIA rendition plane N85VM. On what kind of evidence was that finding based and how was it possible to establish that this particular individual was transferred to Romania on this specific date? ” Answer: “ The assertion that Mr Al Nashiri was transferred to the ‘ Black Site ’ in Romania on 12 April 2004 on the CIA rendition plane N85VM was made as a result of original investigation work and analysis which was carried out by Mr. J.G.S, an adviser in my Office from 2010 – 2012 (see the case of Al-Nashiri v Poland, application no. 28761/11, 24 July, § 324). The assertion was based on a number of different sources which were cross-referenced and not one piece of evidence in isolation. These sources included: official US Government documents describing CIA operations; flight records and aeronautical data amassed from diverse entities across the global aviation sector (current and former employees of national civil aviation authorities, airports, pilots, private charter companies, US government contractors and sub-contractors, and international organisations such as Eurocontrol); and excerpts of interviews with former CIA detainees carried out by delegates of the International Committee of the Red Cross. Media reports produced by investigative journalists, in particular by the Associated Press and German public television, ARD Panorama, have also enabled specific elements of the CIA ’ s operations in Romania to be verified and corroborated. The work and findings of other Council of Europe bodies in the same period, notably the inquiries led by the Parliamentary Assembly and its former Rapporteur, Senator Dick Marty, as reflected in his reports published in 2006 and 2007 also informed my work, as well as original documentary records from agencies inside Romania which assisted enabled me to compile a substantial list of disguised rendition flights into Bucharest. From the combination of these sources, we managed to draw the conclusion that the CIA opened an interrogation centre in Bucharest in September 2003 and that Mr. Al Nashiri was transferred there on 12 April 2004. ” 346. Question 3: “ Why was no date, even approximate, of Mr Al Nashiri ’ s transfer from Romania, indicated in the Memorandum? ” Answer: “ The reason why no date, even approximate of Mr Al Nashiri ’ s transfer from Romania was indicated in the Memorandum was that our research did not manage to establish the precise dates for the closure of the centre in Bucharest nor for Mr. Al Nashiri ’ s departure from there. ” 347. Question 4: “ In the Affidavit (§§ 4-5) you mentioned that – on several occasions but to no avail – you had raised with the Romanian diplomats the issue of the CIA black sites in Romania and you had informed them that materials in your possession had showed that the CIA had kept suspects detained in a location in Bucharest for the purpose of interrogation. Could you specify, at least approximate, dates on which you raised that issue before delivering your dossier to the Romanian diplomatic mission and what was the authorities ’ response? ” Answer: “ I raised the issues reflected in the Memorandum in meetings with the Romanian Ambassador (Permanent Representative) to the Council of Europe on 5 September 2011, 30 January 2012 and 29 March 2012. These were confidential meetings held between myself as Commissioner for Human Rights and the Ambassador, as representative of the Romanian authorities. I do not feel in a position to disclose the precise contents of those discussions, save to underline that during the meeting on 29 March 2012, I handed over my Memorandum, which was addressed to the Prosecutor General in Bucharest. The Memorandum was then published a number of months later on 18 December 2012. ” 348. Question 5: “ In the Affidavit (§§ 7-9) you mentioned that you had received no ‘ formal response ’ to the dossier that you had prepared for the Romanian Prosecutor General. Did you receive any other response, even informal? Did you have an opportunity to discuss the question of instituting an investigation with the Romanian authorities at any further stage? If so, how did the authorities react to the information of the CIA ‘ black sites ’ on their territory which they had received from you? ” Answer: “ I received no response from the Romanian authorities, not even an informal one. ” 2. The Romanian Government ’ s questions 349. Question 1: “ Having regard to the fact that the change of flight plans after being submitted represents a unilateral action of the flight operator and to the fact that the route changes are reflected in the documents issued by the Romanian authorities, which is the evidence that led to the conclusion that a simple change of flight plans (allowed by the relevant domestic and international regulations such as the IFPS Users Manual) represented a cover-up with the complicity of the Romanian authorities? ” Question 2: “ Having regard to the IFPS Users Manual provisions concerning the STS/STATE indicator, which were the domestic or international legislation or the relevant elements of fact that led to the conclusion that the flights with the STS/STATE indicator analysed in the Memorandum that landed on Romanian territory benefited from certain privileges and which were these privileges? ” Answers to questions 1 and 2: “ The changing of flight routes was systematic with the obvious purpose of protecting the secrecy of the operations. In our investigation work we were able to unpick the practice of such ‘ dummy ’ flight planning. In respect of several key landings of the CIA rendition aircraft we did obtain original documentary records from agencies inside Romania. We were also able to compile a substantial, albeit non-exhaustive list of disguised rendition flights into Bucharest, all of which bore the character of ‘ detainee drop-offs ’. Though the operations were conducted under extreme secrecy, it is obvious that the CIA plane could not land with its cargo and depart without agreement from high-level Romanian decision makers. This is further underlined by the fact that the flights had been given the very important ‘ special status ’ - STS/STATE - a designation that is supposed to be used only in strictly limited circumstances: in attributing this designation, the CIA company claimed an official status for the plane, N313P, as a diplomatic or state aircraft, only one notch below the aircraft that carries Heads of State [STS/HEAD]. ” 350. Question 3: “ Having regard to the fact that the Memorandum quotes the 2007 Marty report as a reliable source for many of its conclusions, which were the reasons that determined the author to dismiss Senator ’ s Marty supposition that a secret detention site was located in the area of the Mihail Kogălniceanu Airport (§§ 222-226 of the 2007 Marty Report)? What led the author of the 2012 Memorandum to conclude that the information provided by Senator ’ s Marty sources on this subject is less believable than the information provided on other aspects cited in the Memorandum? ” Question 4: “ Having regard to the fact that certain reports put forward several dates as the possible date of entry of the applicant on Romanian territory, which are the elements that justify the Memorandum ’ s conclusion that the applicant entered Romania on the 12th of April 2004? ” Answers to questions 3 and 4: “ The reports from 2006 and 2007 by Senator Dick Marty to the Parliamentary Assembly of the Council of Europe provided important background information to the Office of Commissioner for Human Rights as well as non-governmental human rights organizations and serious investigative media outfits to put together further information on this issue. However, the Commissioner ’ s Office used multiple sources in its research. I refer back to my answer to Question 2 in response to the Court ’ s questions. ” 3. The applicant ’ s questions 351. Question 1: “ Would Mr. Hammarberg like to supply further information relating to Romania ’ s participation in the CIA ’ s secret detention and extraordinary rendition programme, including its hosting of a secret CIA prison where the applicant was secretly detained? ” Answer: “ One aspect which should be mentioned is that the CIA rendition and interrogation programme was conducted behind a wall of extreme secrecy. Even after the closure of the programme it has been very difficult to establish facts about these activities. It is no secret that US authorities have taken extraordinary steps to prevent basic facts to be known, even in relation to judicial actors in other countries. ” 352. Question 2: “ Given that the European Court of Human Rights has now made findings of fact that multiple European countries participated in a secret CIA rendition programme, does that have an impact on his assessment of the evidence and his conclusion that Romania was also a participant in that programme? ” Answer: “ 2. It is true that it is now established that multiple European countries participated in the secret CIA rendition program. Knowledge about the political relationship at the time between Washington and Bucharest may make it seem more likely that Romania was one of these countries. However, that in itself does not prove that that was the case. It does, however, underline the importance of an effective, independent investigation of evidence about such Romanian participation. ” 353. Question 3: “ Would Mr. Hammarberg like to supply further information relating to Romania ’ s failure to conduct an effective investigation into its role in the CIA ’ s secret detention and extraordinary rendition programme? ” Answer: “ The human rights violations committed during the CIA rendition and interrogation activities at the time included illegal, secret detention and torture. Data presented by various sources, some of them mentioned in my Memorandum, indicate that an interrogation centre was indeed established in Bucharest. An official policy of total denial and non-response to the quest for a serious investigation appears contrary to the very spirit of internationally agreed human rights. The implied message might be understood as basic human rights – including the avoidance of impunity – is less important that than good cooperation between security agencies. ” H. Senator Marty ’ s affidavit of 24 April 2013 354. The applicant produced an affidavit made by Senator Marty and dated 24 April 2013. That document read as follows: “ Affidavit of Dr. Dick F. MARTY 1. I, Dick MARTY, served as a Senator in the Council of States of Switzerland for 16 years, from 1995 until 2011. For 14 of those years, I represented Switzerland as a delegate to the Parliamentary Assembly of the Council of Europe ( ‘ PACE ’ ). I held several leadership positions during my political career, including in Switzerland as Chairman of the Senate Foreign Affairs Committee, and in Strasbourg as Chairman of the PACE Committee on Legal Affairs & Human Rights and of the PACE Monitoring Committee. 2. Between 2005 and 2007 1 was the PACE Rapporteur on ‘ Secret detentions and illegal transfers of detainees involving Council of Europe member states ’. In this capacity, prepared two reports, both of which were adopted with resounding majorities in PACE Plenary Sessions: ‘ Alleged secret detentions and unlawful interstate transfers of detainees involving Council of Europe member states ’, dated 12 June 2006 (the ‘ 2006 PACE Report ’ ); and ‘ Secret detentions and illegal transfers of detainees involving Council of Europe member states: second report ’, dated 7 June 2007 (the ‘ 2007 PACE Report ’ ). These two reports focused on the secret detention and rendition operations carried out by the United States Central Intelligence Agency ( ‘ CIA ’ ) in its ‘ war on terror ’ and the extent to which European states were complicit in the resultant abuses of human rights. 3. In compiling my 2006 and 2007 PACE Reports, 1 spent considerable time investigating the existence of a CIA secret prison, or ‘ Black Site ’, on the territory of Romania. My findings in each Report were carefully considered and contained the factual elements that were supported by the information available to mc at the relevant time. 4. In my 2006 PACE Report, I included Romania (represented, notably, by a landing point at Băneasa Airport in Bucharest) as a key component of the ‘ global spider ’ s web ’ of secret detentions and renditions, having found it to be ‘ thus far the only Council of Europe member State to be located on one of the rendition circuits... and which bears all the characteristics of a detainee transferor drop-off point ’. 5. In my 2007 PACE Report, after several further months of inquiry including fieldwork in the countries concerned, I was able to present much more detailed and categorical findings regarding the operations of the CIA ’ s High-Value Detainee ( ‘ HVD ’ ) Programme in Europe. I concluded that there was, by that stage, ‘ enough evidence to state that secret detention facilities run by the CIA did exist in Europe from 2003 to 2005, in particular in Poland and Romania ’. 6. In a section of my 2007 PACE Report entitled ‘ Secret detention operations in Romania ’, I described at some length the means by which Romanian and American officials at various levels had colluded on the operations of the CIA ‘ Black Site ’. I also identified and named five senior office-holders in successive Romanian Governments who ‘ knew about, authorised and stand accountable for Romania ’ s role ’ and in doing so had ‘ short-circuited the classic mechanisms of democratic accountability ’. 7. By the end of my mandate as PACE Rapporteur on the subject, in 2007, my convictions regarding Romania ’ s participation in the CIA ’ s HVD Programme were unambiguous and unwavering. My key findings were stated in the strongest terms possible, supported by the most comprehensive information available to me at the time. Based on my 2007 Report, the PACE Committee on Legal Affairs & Human Rights considered it ‘ factually established ’ that Romania was one of the European countries that had hosted a CIA secret prison. The caveat I had previously inserted in my 2006 PACE Report, when I had surmised that there was ‘ [a]t this stage [in June 2006] ... no formal evidence, was rendered redundant by June 2007 ’. There is no such caveat in my 2007 PACE Report. 8. Up to the present day, I stand by every one of the factual findings I delivered in my 2006 and 2007 PACE Reports. Indeed my certitude that a CIA ‘ Black Site ’ existed in Romania has only increased since that time. Subsequent international investigations – notably by investigative journalists – into various aspects of the CIA ’ s HVD Programme have independently vindicated the conclusions of my PACE Reports, and / or have developed certain lines of inquiry regarding Romania even further than 1 was able to. My belief in the ‘ dynamics of truth ’ has remained firm. 9. I am duly informed about the Application in the case of Al-Nashiri v. Romania, filed on 12 August 2012 and currently pending before this Court. I am familiar with the applicant ’ s claims and with much of the evidentiary material on which he relies. 10. In addition I have read carefully the Romanian Government ’ s Written Observations ( ‘ Romanian Government Response ’, or ‘ RGR ’ ) in response to the Application, filed on 11 December 2012 and made available to me by the Applicant ’ s legal representatives. 11. I note that the Romanian Government has chosen to attack the veracity, credibility and consistency of my PACE Reports at numerous points in its Written Observations. This strategy is disappointing, albeit unsurprising to me. In fact, it is entirely typical of the ‘ responsive and defensive posturing... stop[ping] short of genuine inquisitiveness ’, which I highlighted in my 2007 PACE Report as one of my ‘ three principal concerns ’ with the approach of the Romanian authorities towards the repeated allegations of secret detentions in Romania, and towards my inquiry in particular. 12. I regret that the Romanian authorities continue to prefer attacking me than addressing their own wilful failure to carry out a full and thorough judicial investigation. In any case, the Romanian authorities ’ attacks on my PACE Reports are misguided, as I shall demonstrate point–by–point in the paragraphs that follow. 13. First, the Romanian Government repeatedly asserts, wrongly, that I based my PACE Reports on ‘ newspaper articles ’ or on ‘ feeble indications ’. On the contrary, my 2006 and 2007 PACE Reports were the products of one of the most intensive and far-reaching inquiries I have ever led - including in my 20-year career as a state prosecutor. 14. My inquiry team gathered and analysed information in a manner more analogous to law enforcement investigation or, as I wrote in my 2007 PACE Report, ‘ real “ intelligence ” work ’ – notwithstanding our modest means. The information we compiled was, with hindsight, more voluminous and more compelling in character than even that which serious Prosecutors, at national level, had been able to assemble. It bears mentioning that several such Prosecutors, in different countries, have gone on to regard our information as evidence, and to tender it as such in judicial proceedings. 15. A key strand of our information came from testimonial sources whom we identified, screened, located, approached and built relationships with during our in-country missions across Europe and in the United States. We made field visits to capital cities, to the vicinities of suspected detention sites and to repositories of official information; we met representatives of both political and intelligence structures and developed them as our sources, often working patiently over a period of months to hold multiple conversations of incrementally increasing value. We ultimately spoke with, and in many cases interviewed, ‘ over 30 one-time members (serving, retired or having carried out contract work) of intelligence services ’, the majority of whom were from the US, Poland or Romania. 16. With regard to the basis for my findings on Romania, I ensured in my 2007 PACE Report that I was as specific and explicit as possible about the nature of my sources: ‘ During several months of investigations, our team has held discussions with numerous Romanian sources, including civilian and military intelligence operatives, representatives of state and municipal authorities, and high-ranking officials who hold first-hand knowledge of CIA operations on the territory of Romania. 17. I hereby affirm that our sources in Romania included persons who knew about the means by which the CIA HVD Programme was authorised and executed in their country precisely because they had a ‘ need-to-know ’, in accordance with the CIA ’ s strict secrecy and compartmentalisation policies. What the Romanian Government seeks to dismiss as a ‘ contradiction ’ is actually an inconvenient truth: 1 received confirmation of Romania ’ s role from the same persons who belonged to the ‘ very small circle of trust ’ inside the responsible Romanian authorities. 18. I further note that the Romanian Government has attempted to impugn my integrity by characterising my methodology as subjective and even ‘ pretended ’, and by attacking my conclusions, variously, as ‘ erroneous ’’, ‘ unsubstantiated ’ and containing ‘ a lot of contradictions ’. In my defence, I need only restate my professional credentials and reiterate that the methodology 1 employed was as rigorous as any I am aware of under an inquiry mechanism of this nature. In the introduction to my 2007 PACE Report, I explained in detail my policies on corroboration, as well as the strictly limited basis on which I was able to guarantee confidentiality to certain sources. I might only reflect, again with regret, that these parameters were ‘ imposed upon us because of the lack of collaboration from the states concerned ’. 19. Finally the Romanian Government seeks to attribute to my PACE Reports certain assertions on disputed points of fact that I never made. The first such instance regards the physical location of the CIA ‘ Black Site ’ in Romania, for which the Romanian Government states that ‘ the alleged sources changed their assumptions each time it was established that no secret detention facility ever existed in the indicated place. For my part, I explained in 2007 that I was not prepared to pronounce categorically on the precise location of the CIA ‘ Black Site ’ in Romania because I believed that ‘ to name a location explicitly would go beyond what it is possible to confirm from the Romanian side ’. 20. The second instance is where the Romanian Government states that ‘ according to the 2007 Marty ’ s Report, the applicant was delivered to detention in Romania on 22 September 2003, on board the aircraft N313P. This is plainly a misattribution; in my 2007 PACE Report, I stated that I was unable to place any particular detainee onto a given CIA rendition flight into Romania, on the basis that ‘ [t]here presently exists no truthful account of detainee transfer flights into Romania, and the reason for this situation is that the Romanian authorities probably do not want the truth to come out. 21. Thus, notwithstanding the strength of the information on which I relied, I maintain that in several areas of my Reports I understated my findings and – notably with regard to which detainees were held in Romania between which dates, and on which rendition flights they were transported – I stopped short of conclusions that could have been even more grave for Romania in the context of the present proceedings. 22. The reason for my restraint was my overriding concern for objectivity, which meant that every item of information in my PACE Reports had to be verified, validated and corroborated, not least in light of the potential legal ramifications. In short I was guided, as I am today, by a deep-rooted personal commitment to the values the Council of Europe has always worked to uphold. I declare that the information I provide herein is true to the best of my knowledge and belief. Signature: Dr Dick F. Marty Date: 24 April 2013 ” I. The 2015 LIBE Briefing 355. The 2015 LIBE Briefing of 15 September 2015, prepared by Mr Crofton Black was produced by the Bureau of Investigative Journalism and the Rendition Project ( “ the TBIJ/TRP ” ) for the EU Parliament LIBE Committee Delegation to Romania (see paragraph 288 above), in connection with their continuing inquiry into the alleged transportation and illegal detention of prisoners in Europe committed by the CIA (see also paragraphs 2 68 -2 90 above). The document described correlations between the 2014 US Senate Committee Report and other public data sources and consisted of two parts: a summary of flights with links to the rendition programme through Romania and a summary of data in that report which could be related to Romania. It stated that the 2014 US Senate Committee Report confirmed previous accounts of the CIA secret detention in Romania and the existing public source data on transfer dates of prisoners into and out of Romania, named some HVDs held in Romania and described torture inflicted on some prisoners held in Romania. In its appendices it contained recorded flight plan data for each trip of rendition flights concerned and main contracting documents relating to rendition missions executed by air companies for the CIA. 356. The 2015 LIBE Briefing stated that it was established beyond reasonable doubt that: ( a) a facility in Romania had been used by the CIA to hold prisoners; ( b) prisoners had been first transferred to this facility in September 2003; ( c) prisoners had last been transferred out of this facility in November 2005; ( d) other transfers of CIA prisoners between Romania and other countries had occurred between these dates; ( e) the 2014 US Senate Committee Report named five prisoners held in Romania. Several others had been named in other reporting. ( f) some transfers were carried out by planes operated by Aero Contractors/Stevens Express, two shell companies with strong links to the rendition programme (see also paragraphs 69-70 above); ( g) other transfers were carried out by a network of aviation companies working alongside prime contractor Computer Sciences Corporation, operating through a linked group of contracts; ( h) while in Romania, some prisoners had been tortured. 357. As regards the flights operated by Aero Contractors/Stevens Express, according to the 2015 LIBE Briefing two aircraft registered as N379P and N313P were active in the rendition programme between 2001 and 2004. Investigations by journalists, lawyers, NGOs and international bodies linked them to at least fifteen rendition missions. Three missions by these two aircraft related to prisoner transfers through Romania. The flights took place, respectively, on 22-23 September 2003, 25-26 October 2003 and 25 January 2004. The relevant passages from the 2015 LIBE Briefing read: “ On 22-23 September 2003, N313P flew from Afghanistan to Poland, Romania, Morocco and Guantánamo Bay. Authoritative sources summarized in the European Court of Human Rights ’ judgement in Husayn (Abu Zubaydah) v. Poland show that this was a rendition mission. Media reporting has suggested that, at various points, this mission transported Mustafa al-Hawsawi, Walid bin Attash, Abu Zubaydah, Abd al- Rahim al-Nashiri, Ramzi bin al-Shibh and Khaled Sheikh Mohamed. Research by TBIJ/TRP indicates that it also carried Samr al-Barq and possibly others. Of these, research indicates that Walid bin Attash, Khaled Sheikh Mohamed and Samr al-Barq were moved from Poland to Romania on this date. On 25-26 October 2003, N379P flew from Romania to Jordan, Afghanistan and Iraq. As part of this mission, Mohamed Bashmilah was transferred from Jordan to Afghanistan. Research by TBIJ/TRP indicates that this flight also coincides with the transfer from Romania to Jordan of Samr al-Barq, and that after Bashmilah was brought into Afghanistan the plane took Hiwa Abdul Rahman Rashul and Aso Hawleri to Iraq. On 25 January 2004, N313P flew from Afghanistan to Romania in the course of a long mission that also took it to Morocco, Algeria, Macedonia and Iraq. Research by TBIJ/TRP indicates that Hassan Ghul was transferred from Afghanistan to Romania on this flight. NGO reports and legal filings show that as part of the same mission Binyam Mohamed was transferred from Morocco to Kabul (22 January), Khaled el-Masri from Skopje to Kabul (24 January) and Khaled al -Maqtari from Baghdad to Kabul (24 January). Research by TBIJ/TRP also shows that this mission coincided with the rendition of Jamal Eldin Boudraa from Afghanistan to Algeria (22 January). ” 358. As regards flights operated by Computer Sciences Corporation, according to the 2015 LIBE Briefing between 2002 and 2006 they carried out rendition flights via an interlinked series of contracts. That network was revealed in the Richmor Aviation v. Sportsflight Air case, during which both parties discussed, in written pleadings and sworn testimony, the use of flights operated under this group of contracts to transport prisoners (see also paragraphs 67-70 above). Research by TBIJ/TRP identified twelve key missions carried out in 2004 and 2005 by planes connected to this contracting network, linking Romania to other CIA prison host countries and/or known or suspected prisoner transfers. In the light of that research, contractual documentation showed decisively that most of these twelve missions took place under Computer Sciences Corporation ’ s renditions contract. The list of the trips, in so far as relevant, read as follows: “ [D] Between 25 and 28 January 2004, N85VM flew from Saudi Arabia to Jordan and on to Romania. Research by TBIJ/TRP shows that this mission coincides closely to the entry into the detention programme of Muhammad Qurban Sayyid Ibrahim, and more approximately to that of Saud Memon. [E] On 12-13 April 2004, N85VM flew from Guantánamo Bay to Romania and Morocco. [F] On 29 July-1 August 2004, N288KA flew from Afghanistan to Jordan and Romania. Research by TBIJ/TRP indicates that Janat Gul was transferred on this flight. [G] On 24 August 2004, N308AB flew from Romania to Morocco. After pausing in Dubai it then went from Afghanistan to Algeria on 26 August. In the second stage of the mission it transferred prisoner Laid Saidi to Algeria. No clear evidence exists as to who might have been transferred from Romania to Morocco at this time, although research by TBIJ/TRP indicates that this flight might coincide with the removal of Sayed Habib from CIA detention. [H] On 1 October 2004, N227SV flew from Morocco to Jordan and Romania. [I] On 18-20 October 2004, N789DK flew from Romania to Jordan and Afghanistan. [J] On 18 February 2005, N787WH flew from Morocco to Romania and Lithuania. This coincided with another mission from Morocco to Jordan and Lithuania by N724CL. Lawyers for Abu Zubaydah have stated in his application to the European Court of Human Rights that he was transported on one of these two planes from Morocco to Lithuania. [K] On 26 May 2005 two planes, N450DR and N308AB, carried out a joint mission between a) Afghanistan and Jordan and b) Tunisia, Jordan and Romania. Research by TBIJ/TRP indicates that these planes were used to transport Abu Faraj al-Libi and Abu Munthiral-Maghrebi from Afghanistan and Tunisia, respectively, to Romania. [L] On 27 July 2005, N308AB flew from Romania to Egypt. [M] On 21 August 2005, N860JB flew from Afghanistan to Romania. [N] On 5-6 October 2005 two planes, N 308AB and N787VWH, flew from a) Romania to Albania and b) Albania to Lithuania. Research by TBIJ/TRP indicates that Khaled Sheikh Mohamed was transferred from Romania to Lithuania on these planes. [ O ] On 5-6 November 2005, two planes, NIHC and N248AB, flew from a) Romania to Jordan and b) Jordan to Afghanistan. ” XII. EXTRACTS FROM TESTIMONY OF EXPERTS HEARD BY THE COURT 359. On 28 June 2016 the Court took evidence from Mr Fava, Senator Marty, Mr J.G.S and Mr Black (see also paragraphs 12 and 1 8 above). The extracts from their testimony as reproduced below have been taken from the verbatim record of the fact-finding hearing. They are presented in the order in which evidence was taken. A. Mr Fava 360. In 2006 and 2007 Mr Fava was the Rapporteur of the TDIP in the framework of the inquiry initiated by the European Parliament into the allegations concerning the existence of CIA secret detention facilities in Europe. In this connection, he prepared the Report of the TDIP, the so ‑ called “ Fava Report ”, on whose basis the European Parliament adopted the Resolution on the alleged use of European countries by the CIA for the transportation and illegal detention of prisoners (2006/22009INI) ( “ the 2007 EP Resolution ” ) on 14 February 2007 (see paragraphs 2 7 6-27 8 below). On 2 December 2013 Mr Fava testified before the Court at the fact ‑ finding hearing held in Al Nashiri v. Poland (cited above, §§ 305-310). Mr Fava responded to a number of questions from the Court and the parties. 361. He first replied to the judges ’ questions concerning records of the informal transatlantic meeting of the European Union and the North Atlantic Treaty Organisation foreign ministers, including Condoleezza Rice, of 7 December 2005, referred to in paragraph “ L ” of the 2007 EP Resolution (see paragraph 27 8 above) and “ confirming that Member States had knowledge of the programme of extraordinary rendition ”. This document was also described in Al Nashiri v. Poland as a “ debriefing ” and so referred to in the judgment ( ibid., § 306). In his reply he stated, among other things, as follows. “ I do not remember the debriefing in detail, but I remember the subject matter of the [transatlantic] meeting, namely, the need for the US Secretary of State, Condoleezza Rice, to discuss with the ministers of all the EU Member States the issue of renditions, and to somehow share with each government the choices made by the US Government, which they had entrusted to their services, and in particular to the CIA, for operational reasons. I do not remember the statements in detail, but two things emerged from the debriefing: firstly, at that stage, all the governments knew that this operational means had been chosen by the CIA and that the extraordinary renditions were a tool in the war against terrorism. The second point that emerged was a difference in views of the various governments: those that felt that they should support the policy of the US Government and the choice of extraordinary renditions, and then others that felt that the matter of protecting human rights and providing all necessary legal guarantees to terrorist suspects should continue to prevail, namely in accordance with the international treaties. We never had doubts, both for the precision of the notes, and because, in our opinion, this affair had further confirmation in the course of our work. When, in the framework of our activity, we went on mission to Washington, we met Ms Rice ’ s legal advisor, Mr Bellinger, and Mr Bellinger said ‘ we never violated the sovereignty of any EU Member States or indeed any other associated States or any States in the process of accession to the EU ’, – because everything that was done, which President Bush had somehow claimed in those months, in September 2006, and Bush ’ s confirmation of the extraordinary renditions –, ‘ everything that we did was done by always informing and asking for the cooperation, and never trying to prevail over the will of the governments of the Member States ’. So, the circumstance that there was a broad knowledge about it, was confirmed by the way in which the US Government told us ‘ we had always acted in broad daylight, so to speak, not in relation to public opinion, but in relation to the EU Member States ’. ” 362. The next question from the judges concerned paragraph 162 of the Fava Report and the 2007 EP Resolution where “ a serious concern ” had been expressed about 21 stopovers made by the CIA operated aircraft shown to have been used by the CIA on other occasions for extraordinary renditions of several specific persons ” and, also, Working documents nos. 8 and 9 attached to the Fava Report (see paragraphs 2 71 -2 77 and 27 9 above ), listing flights from or to suspicious locations such as for example Kabul, Guantánamo and Amman that stopped over in Romania in 2003-2005. In that context, they asked Mr Fava “ whether, having regard to the Fava Report ’ s and the 2007 EP Resolution ’ s conclusions as to the member States ’ knowledge of the rendition programme and evidence known to [him] through the Fava Inquiry, [could] it be said that Romania knew, or ought to have known, of the CIA rendition programme and its nature when it allegedly operated on its territory, that is to say already in 2003-2003 ” and “ if so, was this knowledge such as to enable Romania to be aware of the purposes of the 21 CIA aircraft stopovers on its territory? Mr Fava responded as follows: “ In the course of our investigations, we did not reach certainty, but we felt, within reasonable doubt, that the Romanian authorities were aware of the fact that there were unauthorised detention centres and that five Romanian airports were used for the transit of planes which were also transporting detainees. In particular, there was a statement by Pascu, the former Minister of Defence, who said shortly before our mission to Romania, that the Romanian authorities, as far as he knew in his position of Minister of Defence, did not have access to certain sites, which were under the control of the Army or the United States intelligence security forces in Romania. Subsequently, when we asked him to account for and if it was possible to go into more depth relating to that statement, the former Minister decided to partly deny it and said he had been misunderstood. The impression we had was that he had actually told the truth, also because Romania chose to undertake a rather superficial investigation of the accusations received. These were very detailed accusations because, before the European Parliament Inquiry Committee had started its work, The Washington Post and ABC News had produced quite detailed reports where they talked about the existence of detention sites in certain European countries; in certain cases Poland and Romania were actually named. Brian Ross, the ABC journalist, during an audition in Washington, confirmed having received enormous pressure directly from the White House to remove the names of the countries from their programme and that the TV programme should only say ‘ there are unauthorised detention sites ’. But for national security reasons it was requested not to cite explicitly Poland and Romania, and that was the choice made by the TV network. In Romania, we realised that, when confronted with these facts, the attitude of the Committee of Inquiry, set up by the Senate, was acting opaquely, not least because only one chapter of all the conclusions, chapter 7, was actually made public, where every question, every doubt received a negative answer. We thought it was unusual, given the serious nature of the concerns, that the NGOs which had raised those complaints and the journalists who had written about it, had not been not heard. The feeling we had, within a courtesy of institutional relation, was that the matter was closed far too quickly, particularly given the evidence, as you recalled, of these 21 aircraft stopovers relating to all the CIA flights operated by front companies and out of these 21 stopovers, out of these 21 flights, 18 are considered suspicious because of either the destination or the country of origin. In three cases, these planes were used for a number of extraordinary renditions. Eight victims of extraordinary renditions, among those we ascertained, were transported on planes which had landed in Romania in the course of their transport. Some of these stopovers had no technical justification. The N313P, for example, a Boeing 737, which was used to transport Binyam Mohamed, a British citizen, and El ‑ Masri, a German citizen, was collected in Skopje, and those flights could well have flown the whole distance without needing to make a stopover in Bucharest. From Kabul to Palma de Mallorca, the flight had full autonomy to reach its destination, the stopover was not technically necessary. Likewise, the plane from Rabat to Poland did not require a stopover in Bucharest. We did not get an answer to that, in that the data we provided the authorities with, in order for them to give us a clarification whether an evaluation on these flights had been made, received very vague replies.” In that context, Mr Fava referred in particular to the plane N478GS ( see paragraphs 16 8 and 275 above) : “ There was one specific case where the Romanian authorities had had to intervene. It was a plane which had a technical problem on landing, N478GS, which landed on the 6th of December [200 4 ], coming from Bagram in Afghanistan, a city where it was known that the Americans were detaining terrorist suspects. Initially they said they knew nothing about that flight, only that there was just this incident, there was no trace of a crew or of passengers. Only at a later stage, after we had insisted, they gave us a list of passengers, seven US citizens, all with a service passport. One had a Beretta gun and ammunitions. None of them was questioned about the purpose of the trip from Bagram, they returned home on an Air France flight the following day, and it seems that the plane was later transported by a Hercules to another European airport to be repaired. And also on that point – on which many newspapers were raising questions about a plane landing, carrying passengers, with a very special profile, without there being any request for explanations from the Romanian authorities – that point also remained unanswered in our opinion. ” 363. In response to the judges ’ question – referring, in particular, to paragraph 164 of the 2007 EP Resolution stating that “ [it] cannot exclude, based on the statements of the Romanian authorities to the Temporary Committee delegation to Romania, the possibility that US secret services operated in Romania on a clandestine basis and that no definite evidence has been provided to contradict any of the allegations concerning the running of a secret detention facility on Romanian soil ” (see also paragraph 2 80 above ) – whether the TDIP considered that in 2003-2005 a CIA detention facility had or had not existed in Romania, Mr Fava stated: “ The conclusion we reached was a very strong suspicion that it existed, not the certainty – there was no smoking gun – but a very strong suspicion concerning the points I reported, because of what we were told by Pascu, the former Ministry of Defence, because of the attitude, the rather superficial attitude of the Committee of Inquiry. And also because of a number of considerations that we heard during the interviews : we heard many journalists, many non-governmental organisations. At that time, it was impossible to have any certainty, except if there was an admission by the Romanian Government. In that case however, the Romanian Government could not prove the opposite, either because of the approximate work of its Committee of Inquiry, or because of the acknowledgments that emerged between the lines by those who basically said – also people that we interviewed at the airport - ‘ we were not in a position to know what was happening ’. An example I found in my notes is the testimony of the chief investigator for the incidents on behalf of the Ministry of Transport, Vulcan, who explained that, for example, in the case of the plane that had landed and had been damaged on landing, when it reached the airport there was no sign of the passengers who had been on that plane. All this was, let us say, outside the procedures and rules. This was a civilian air flight, it was not a State flight, it was not a police flight. Under the Chicago Convention, it was normal that the passengers be identified. The identification was eventually transmitted to us, but only after a considerable insistence on our side. What we were told was: ‘ we did not meet anyone, we don ’ t know anything ’. So, everything, all the information we received, gave us the impression that this matter was handled in a very opaque way and the conclusion we reached is that we could certainly not exclude the fact that a secret detention centre had existed in Romania. ” 364. In his replies to the Government ’ s questions as to how, in his view, the Government could “ prove that there had been no buildings on its soil ever used as ‘ black sites ’ ”, Mr Fava stated, among other things : “ [By means of] an inquiry which was deep enough to match the seriousness of the charges, well, such an inquiry, according to practice and, let us say experience, which we had, and the work we were doing, could not limit itself to coming to a conclusion without hearing all those who could have produced further elements. The circumstance that this inquiry chose not to disclose its conclusion and its work, with the exception of a chapter, and not to hear, during the work, NGOs or airport staff or journalists, appeared to us to be a rather ambiguous attitude. An Inquiry Committee has the duty to ascertain the truth and use all possible means to get to that truth. It appeared to us, and that was confirmed by the President of the Committee, that it was chosen not to check all [emphasis while speaking] the facts and hear all the people who could have provided further elements. This obviously doesn ’ t give any certainty about the fact that there has been a secret detention centre, but it did not help excluding any suspicions about that. ” He further added: “ When we went to Bucharest to meet the Inquiry Committee, we were told that neither journalists nor NGOs nor airport officials had been heard. They didn ’ t mention the fact-finding missions on airport sites to us, but they did confirm the fact that a large part of those who could have provided a different point of view were not heard. Also the time during which the Committee worked, if I remember correctly well, we are talking about facts of ten years ago, was quite quick. Our Inquiry Committee worked for two full years to come to this final report, but it appears that the Senate Committee worked for far less time and that the conclusion was rather quickly reached, once the working session was set up. ” 365. In response to the Government ’ s question regarding the twenty one “ stopover flights ” (see also paragraphs 2 71 and 280 above), Mr Fava stated: “ The evidence we have, through the information provided by the US Control Center and from Eurocontrol, concerns the stopover of 21 flights. But we do know also that in two cases the route of the flight registering the stopover in Bucharest coincided with the extraordinary rendition of two victims. This is the case of the N313P which, in September 2003, from the 21 st to the 23rd of September, flew from Washington to Prague, Tashkent, Kabul, Szymany, Bucharest, Rabat, Guantánamo. And during that route, one of the passengers in that plane was Benjamin Mohamed, who was then detained in Guantánamo. Another flight with the same aircraft, in January 2004 from Skopje, in Macedonia, to Baghdad, Kabul, Bucharest and then Palma de Mallorca, tallies with the period in which, on that plane, El Masri, German citizen, was transported, so in at least two cases we are not dealing with stopovers only but rather with an operational cycle of these planes within which, no doubt, these planes were carrying two rendition victims, and these are totally ascertained cases, not only during the judicial phase but also in the conclusions to which our Committee came to, namely that during those days, those persons were being illegally transported in that airplane. ” 366. In relation to the 2014 US Senate Committee Report and a question from the applicant ’ s lawyers, Mr Fava responded: “ I testified before the American Senate ’ s Inquiry Committee, although in previous years, and I do recall that there was a strong determination to get to the truth as to what had happened and also a great determination to condemn a practice which, if ascertained, would have been considered to be totally illegal and, furthermore, totally inappropriate for combating terrorism. About this point, we realised in the years immediately following our mission of inquiry under the new administration of the White House that there was a global revision, a very different evaluation on the way they had operated until those years. Extraordinary renditions were very negatively assessed, and this evaluation has also been confirmed by certain CIA officials. We met Vincent Cannistraro, who was a former agent, the Head of Counter-Terrorism in the CIA, who told us that when they had chosen to proceed to extraordinary renditions within the agency, many people realised that this was a mistake because, as actually happened, not only would it create a climate of even greater hostility but it would also have led to the risk of terrible judicial errors, as actually happened subsequently, because often they were led to decide to abduct a suspected terrorist on the basis of information that the local services in Pakistan, Afghanistan, Syria, Morocco and Egypt were prepared to give to CIA colleagues. In certain cases, those were forms of mere manipulation. We heard four victims of extraordinary rendition – we are the only international organisation that had the possibility to speak with them – and one of them told us about his 11 months spent in a secret prison in Syria, being tortured every day until they had to release him, because it was understood that a great judicial error had been committed. And we also know that we dealt with several cases, however only the cases of the more fortunate people, namely of those who were European citizens or people abducted in Europe, therefore with public evidence that could not be hushed up. But aside the many cases we dealt with, we fear that there are many other cases of citizens less protected, let ’ s say, by their nationality and we have no figures here. So, this was very much in the awareness of the American Senate ’ s Inquiry Committee, as a very heated discussion that developed within the CIA itself during those years, and of which we heard recollected traces, thanks to the availability of some former CIA officers to speak with our Committee. ” B. Presentation by Senator Marty and Mr J.G.S. “ Distillation of available documentary evidence, including flight data, in respect of Romania and the case of Al Nashiri ” 367. On 2 December 2013 Senator Marty and Mr J.G.S. gave a similar presentation before the Court in Al Nashiri v. Poland (cited above, §§ 311 ‑ 318) and Husayn (Abu Zubaydah) v. Poland (cited above, §§ 305 ‑ 312). 368. Their oral presentation in the present case was recorded in its entirety and included in the verbatim record of the fact-finding hearing. The passages cited below are taken from the verbatim record. 369. The aim of the presentation was explained by the experts as follows: “ The firm intention of our presentation today is not to reveal anything new or revolutionary, but rather to offer a cogent distillation of the available data and documentation in a manner which might allow the construction of a more coherent chronology of the CIA ’ s rendition, detention and interrogation programme. In particular, it is a chronology in which the applicant in today ’ s proceedings features prominently, and indeed one in which the territory of Romania, the High Contracting Party to today ’ s proceedings, also holds a prominent status. The Court will recall, Madam President, the testimony provided by Senator Marty and myself in the cases before Section IV of the Court in December of 2013, in which today ’ s applicant, Abd al Rahim Al Nashiri, was joined by Abu Zubaydah in alleging violations of the Convention by the Republic of Poland. The ‘ black site ’ situated on the territory of the Republic of Poland will also be mentioned in today ’ s presentation, but I should like to request that the Court take note of the material presented on that earlier occasion, and indeed the judgments of the Court in those two applications, as a foundation to the material which I will present today. ” 370. This was followed by the presentation of the map showing a network of interconnected various locations, which was referred to as a “ global spider ’ s web ” in the 2006 and 2007 Marty Reports (see paragraph 25 0 above; see also and Al Nashiri v. Poland, cited above, §§ 321 et seq.): “ It is important to understand the system in which this chronology resides, and it is for that reason that we commence our presentation by explaining the so-called ‘ global spider ’ s web ’ which was presented as part of the reports of the Marty Inquiry of the Council of Europe in 2006 and 2007. These are movements not only of military aircraft or conventional aircraft used in the pursuit of counter-terrorism or military operations, but also importantly charter aircraft, private aircraft, operated under the cover of business or private citizens ’ operations through a complex shell game, in which prime contractors, aviation subcontractors, flight planners and indeed the national authorities of Council of Europe Member States are complicit, ensuring that flight movements are impossible to track or record in real time and indeed extremely difficult to account for in retrospect. I shall use a graphic map to illustrate this system. ” He further explained: “ On this map, there are four categories of airports in which aircraft in this system landed. The first is described as ‘ stopover points ’. These are places at which aircraft would conventionally stop for a short period, usually several hours, in order to refuel en route to another location. The second category, ‘ staging points ’, describes locations at which two or more aircraft often converged, crews convened and indeed rendition operations were planned. The third category, ‘ pickup points ’ represent the outcomes of our investigation into specific rendition operations. In each of these places, a detainee was picked up by a rendition crew and rendered to a secret detention facility, usually in the Middle East or North Africa, by the CIA. Several of these, as situated in Europe, have already been accounted for by this Court in cases such as El Masri v ‘ the Former Yugoslav Republic of Macedonia ’, which is depicted here by Skopje, and most recently the case of Abu Omar, the cleric who was rendered after having been picked up on the street in Milan, Italy. The final category on this list, however, is the most important. These are described as ‘ detainee transfer or drop-off points ’. They were, in short, the destinations of CIA rendition aircraft, places to which detainees were brought for the purpose of being detained secretly, interrogated and, in the majority of cases, ill-treated at the hands of CIA interrogation teams in a manner which, prima facie, would violate the European Convention on Human Rights. The material interest of our inquiry was to establish in particular which sites in this category were situated on the territory of Council of Europe Member States, and as you can see from the graphic, there are ... two countries initially, implicated in Senator Marty ’ s inquiries. The first of those, Poland, was the subject of the earlier case of Al Nashiri and Abu Zubaydah v. Poland. The second country, which is depicted here by two airports, Timişoara and Bucharest, is the respondent in today ’ s proceedings, Romania. The motif of a global spider ’ s web derived from our efforts to track the movements of aircraft across this system, and I will demonstrate two specific rendition circuits in order to show how that picture is built up. ” 371. The presentation then focused on two rendition circuits, described in the order chosen by the experts, which were carried out by plane N313P on 16-28 January 2004 and 20-24 September 2003 (see also paragraphs 272, 276, 327-330 and 33 6 -33 7 above; and Husayn (Abu Zubaydah), cited above, §§ 108-116 and 285 ). The 16-28 January 2004 circuit was related as follows: “ The first of these [circuits] occurred in January 2004 and has become notorious because of the sheer number of detainees who were rendered, in the course of a 12 ‑ day period, between multiple different detention sites across the Middle East, North Africa and, indeed, Europe. The aircraft in question, N313P, was operated by the CIA ’ s own aviation services provider, Aero Contractors. Having departed from Washington, it stopped over in Shannon, before flying to a staging point in Larnaca, Cyprus. From there, its first detainee pickup occurred at the detention site in Rabat where, on 22 January 2004, the British resident Binyam Mohamed, was rendered from secret detention in Morocco to secret detention in Kabul. From Kabul the plane flew back in the direction of North Africa to Algiers, carrying with it a recently-released Algerian national from a US military detention site in Kabul. From Algiers it travelled to a second staging point in Europe, in Palma de Mallorca, whereupon the crew embarked on the rendition of Khaled El-Masri. He was picked up on the night of 23 to 24 January in Skopje in ‘ the Former Yugoslav Republic of Macedonia ’ and transported via Baghdad to four months of secret detention in Kabul. The same crew, the same aircraft, departed Kabul on the night of 24 January and flew in the direction of Europe to a landing in Romania. I shall explore this particular leg of this flight in extensive detail, later in my presentation. From Romania, the crew and the plane returned to a staging point in Palma de Mallorca, for further rest before returning to Washington. All of the flights depicted on this graphic, Madam President, occurred within the space of 12 days, in January 2004. ” The 20-24 September 2003 circuit was related as follows: “ A second rendition circuit, which occurred in September 2003, also implicates the territories of two Council of Europe ’ s Member States. Having departed from Washington, this aircraft, again N313P, flew to Prague in the Czech Republic for a stopover before heading eastward to Tashkent, Uzbekistan, where dissident detainees, handed over to the CIA by local intelligence services, were rendered to secret detention in Kabul. From Kabul, on 21 September 2003, the aircraft transported several detainees out of detention in Afghanistan towards detention in Europe. The first stop in Europe was the detention site at Szymany, in northern Poland, which was explicitly described in the [ Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland ] proceedings, and this circuit is unprecedented and indeed unique because it is the only occasion on which a rendition flight carrying CIA detainees left one European site and flew directly to another European detention site, in this case in Bucharest, Romania. Again, that particular leg will be the subject of further explanation later in the presentation. From Bucharest, the rendition plane carried further detainees out to Rabat. These were persons who had boarded on earlier legs, not persons leaving Romania, and from Rabat to Guantánamo Bay, where for four months, in late 2003 and early 2004, the CIA operated a secret detention facility apart from the larger military facility at Guantánamo Bay. ” The following explanation was added: “ In illustrating those two rendition circuits, I am displaying a small fraction of the rendition flights and circuits that Senator Marty ’ s Inquiry uncovered in 2006 and 2007. The totality of these operations was to create this motif: that of the global spider ’ s web, a system in which rendition aircraft, criss-crossing across the globe, created an almost untraceable and unaccountable system of unlawful detainee transfers. ” 372. Using the above two rendition circuits as examples, the expert-witnesses further explained the practice of the so-called “ dummy flight planning ”, a process of intentional disguise of flight plans for rendition planes (see also paragraph 26 4 above; and Al Nashiri v. Poland, cited above, §§ 316 and 318): “ One of the key discoveries of our inquiry in 2007 was that rendition aircraft had been very difficult to trace because of deliberate acts of disguise and deceit employed by the CIA and its partners in planning and executing their detainee transfer operations. In 2007, through months of rigorous analysis of aeronautical data, we were able to present evidence of the practice of dummy flight planning by the CIA in conjunction with partners in Polish air navigation services. Since the report of 2007 came out, and this work has been extended and indeed deepened, we are now in a position to demonstrate how the similar practice of dummy flight planning was used in respect of Bucharest Băneasa airport in Romania. ” 373. As regards the 16-28 January 2004 circuit: “ This is the flight circuit of January 2004, which I demonstrated earlier in the presentation. In particular, we focus on the leg from Kabul, Afghanistan, towards Bucharest, Romania, and in this process I am using specific elements of a data strings analysis which was conducted using four data sources, including those of Eurocontrol and indeed Romanian authorities. At step 1, the first flight plan is filed. A company by the name of Jeppesen, which was the subject of a prominent case before the United States Supreme Court, brought by the American Civil Liberties Union, habitually filed false flight plans in order to disguise the routes of rendition aircraft. In this case, the first flight plan for 24 January 2004 was filed to Timişoara, Romania. But N313P, the aircraft in question, did not fly that route. Jeppesen filed a second dummy flight plan out of the same airport, Timişoara, to Palma de Mallorca in Spain. Again, this was a route which N313P had no honest intention to fly. Furthermore, a third and contradictory dummy flight plan was filed, this time in respect of Timişoara to Prague, and Romanian authorities, in their own efforts to understand the stated intentions of this aircraft, also made references to both legs 2 and 3 in their own filings on the aeronautical fixed telecommunications network. The aircraft did then embark on the evening of 24 January 2004. On board was a CIA detainee by the name of Hassan Ghul who had been handed to the CIA by United States military authorities. He was rendered out of a ‘ black site ’ in Kabul to the Romanian ‘ black site ’ situated in Bucharest. This landing in Bucharest was an undeclared landing, at no point had a valid flight plan for this route been filed in the international AFTN system. At this point, Romanian authorities, specifically the NOTAM office at Bucharest Băneasa Airport, began to file plans in respect of this aircraft. A plan was filed for the first time citing Bucharest airport, by the Romanian authorities, from Bucharest to Palma de Mallorca and indeed, that evening, having dropped off the detainee, the CIA aircraft flew the route filed by their Romania counterparts. Finally, Jeppesen, the CIA ’ s flight planner, resumed its duties of flight planning and carried the aircraft and its crew back in the direction of the United States. What this graphic represents, honourable judges, is not a one-off occasion. It is rather a systematic practice deployed by the CIA and its aviation service providers to disguise CIA flights into and out of its most sensitive operational locations. In our reporting in 2006 and 2007 we were often confounded by the apparently contradictory and inconsistent information provided to us by multiple sources of data, including those inside of Romania in the Senate Inquiry Committee and indeed among the various aviation authorities whose filings did not appear to add up. We now know that the reason for these inconsistencies and contradictions was the deliberate practice of dummy flight planning employed by the CIA. But they cannot execute this tactic alone. They depend upon, however discrete, a role played by the national counterpart authority, and just as in the case of Poland, demonstrated in the earlier proceedings, here the Romanian air navigation services filed plans in respect of an aircraft which was on its territory for the sole purpose of transporting detainees into secret detention. Romanian documentary records demonstrate the landing of this aircraft at Băneasa Airport on 25 January, despite the absence of a valid flight plan. This document refers to the ‘ flown ’ flight path, the actual flight path, from Kabul to Bucharest, to Palma de Mallorca, but that was a route for which no flight plan existed in the international system of control. Further similar documents illustrate the ground handling and other services provided to this aircraft whilst it was on the ground for a short period on that night at Băneasa Airport, and through our investigations we have established that this disguised flight forms part of a recognised CIA rendition circuit. These are the individual routes which I have already demonstrated with the graphic, I shall provide the full detail to the Court in written form after the presentation. But as I stated, this was not a one-off, this was part of a systematic practice, and through our investigations we have generated numerous, up to twelve, individual instances on which CIA rendition aircraft have transferred detainees into, and out of, Bucharest, Romania ” 374. As regards the 20-24 September 2003 circuit: “ This set of flight logs pertains to the unprecedented transfer I described earlier, in which detainees from Poland, including the presumed architect of the 9/11 attacks, Khalid Sheikh Mohammed, were transferred directly to Romania on the night of 22 September 2003, the opening of the Romanian site. This particular set of logs depicts an instance in which a detainee was transferred out of Bucharest and taken to further secret detention here in Amman, Jordan, and that practice again was prevalent because detainees did not tend to stay in one secret detention site for lengthy periods, counted in years; they were rather rotated and recycled through multiple different CIA secret detention sites, on periods averaging between six and twelve months. Here, a detainee brought to Romania in September was taken out in October and transferred to further secret detention in Jordan. I will provide all the flight logs and the evidence that supports them to the Court upon request. ” 375. The time-frame for the alleged operation of the CIA “ black site ” in Romania and its colour code-name assigned in the 2014 US Senate Committee Report were identified as follows: “ The [2014] Senate Committee Report also provides extensive insight into the timeframe, the life span for which the ‘ black site ’ in Romania was operated. It is important at this point to state that the word ‘ Romania ’, the country name, does not appear openly in the declassified version of the report. Rather, as with all the sites in question, it is referred to by a colour code name. The code name Detention Site Black corresponds in such precise and extensive detail with every one of the operations I have described in today ’ s presentation, from the first flight into Romania in September 2003 through the transfers of individual detainees, including Hassan Ghul, Khalid Sheikh Mohammed, Abu Faraj al-Libi, into Romania on specific dates in accordance with their interrogation schedules that Romania, its territory, its airspace, its detention facility, is inseparable from ‘ Detention Site Black ’. It is my premise, categorically, that it is the case that Romania is the site referred to as ‘ Detention Site Black ’. From that point of departure, we are able to find several specific references. Here is one, in a section which describes Detention Site Black and another CIA site, which states that ‘ CIA detainees were transferred to Detention Site Black in this country in the fall of 2003 ’. It goes on to state that this coincided with the closure of the predecessor ‘ Quartz ’ base, which is referred to in the report as Detention Site Blue. In terms of its closure, it is stated in the report that after the publication of the Washington Post article, that is the piece of reporting, the Pulitzer Prize-winning article by Dana Priest, to which Senator Marty referred, dated 2 November 2005, the authorities of this country demanded the closure of Detention Site Black within a number of hours fewer than 100. We can see that from the redaction, it does not state exactly how many hours, but it is no more than four days. And in fact, as I described, 5 November 2005, using its practices of dummy flight planning and a further disguise which I will demonstrate shortly, the CIA transferred all of its remaining CIA detainees out of the facility within this time period. ” 376. In conclusion, referring to the Romanian authorities ’ knowledge of the operation of Detention Site Black, the experts added: “ Again, as stated, flights into and out of Romania correspond exactly with the narrative described in the [2014 US Senate Committee Report]. It might be pointed out, in relation to this specific package, that in order for the authorities of the host country to demand the closure of a detention facility, they must have known of its existence. Furthermore, in light of the report in the Washington Post, which went into intimate detail of the CIA ’ s operations including the forms of ill-treatment and interrogation to which detainees therein were subjected, it follows that the authorities of the host country of Detention Site Black – and let me be clear – that is the authorities of Romania, must have known of the nature of operations occurring on their territory. ” C. Senator Marty 377. Senator Marty was a member of PACE from 1998 until the beginning of 2012. He chaired the Legal Affairs and Human Rights Committee and, subsequently, the Monitoring Committee. At the end of 2005 he was appointed Rapporteur in the investigation into the allegations of secret detentions and illegal transfers of detainees involving Council of Europe member States launched by the PACE (see also paragraphs 24 9 -26 7 above ) On 2 December 2013 Senator Marty testified before the Court at the fact ‑ finding hearing held in Al Nashiri v. Poland ( cited above, §§ 319-323) and Husayn (Abu Zubaydah) v. Poland (cited above, §§ 305-317). 378. In the present case, in response to the questions from the Court and the parties, Senator Marty testified as follows. 379. In respect of sources of information that was collected during the Marty Inquiry and evidence on which findings of the 2006 and 2007 Marty Reports were based, Senator Marty stated: “ We were fortunate enough to find sources, and this must be stated clearly, firstly in the United States, of a very high level. It is important to know that within the American administration and the intelligence services, especially those of the CIA, there were a lot of people who were not at all in agreement with what Rumsfeld and Dick Cheney had imposed upon the CIA. And I, who had already had many contacts as a prosecutor with American services, was thus able to obtain this information. What is important to say is that we devised a working methodology, we never relied on one source alone, but when you get important information from once source, it is much easier to activate and to receive further information given in confidence from other sources. In the end we had about thirty sources, if I recall, that are in different countries and notably in Romania, and there too at a rather surprising level. And in 2006 ... we were above all able to concentrate on the movements of rendition flights and we were able to trace this famous spider web, this spider ’ s web. This triggered off all sorts of other information that hailed from people who agreed to talk, of course, under the most rigorous confidentiality. Let me point out that many of these people risked a lot, several decades of imprisonment; they could have been accused of high treason in their countries. ... The seriousness of the sources that provided us with information was strikingly confirmed by the Feinstein report, the report of the American Senate which was published some 10 years after my first report. In the Feinstein report there are absolutely extraordinary confirmations of what we had already described, in part at least, or in the essential parts. The Feinstein report sought to cover up the countries by giving them a colour. If we know a little about the events that are described, it is child ’ s play to see which countries lie behind these colours. ... We focused our initial research on the United States because it seemed obvious to us that the leaks had occurred in the United States and knowing how serious the Washington Post is, in particular the journalist Dana Priest, who is one of the major US journalists, who we knew had contacts with certain highly placed people in the US administration and the secret services, we thought we ought to start digging in that direction. And the fact that Human Rights Watch, which is also a very serious NGO, had published the names of Poland and Romania, meant that they too had important sources of information. Our research ... enabled us to encounter not second-level agents but very important people in the US services. ... When we were able to obtain that information, not just from one American source but from several, we tried to make contacts in other countries in Europe and when the people we had contacted understood that we already knew a lot and that we had got this information from the US secret services, those people were far more prepared to speak out. I think you need to understand the dynamic in this way: it was possible to obtain very high-level intelligence. I will not name the countries, but in some countries we were even up to the level of ministers who spoke to us. Of course, one of the fundamental aspects for my part was that I gave all possible guarantees of protecting our sources. So we took every possible precaution to protect our sources, to make it impossible for people to trace back to our sources. ... ” 380. As regards the Romanian high-office holders mentioned in paragraphs 211-218 of the 2007 Marty Report ( see paragraph 26 2 above ) as “ holding first-hand knowledge of CIA operations on the territory of Romania ”, including the former President of Romania, Mr Iliescu, and the Presidential Advisor on National Security, Mr Talpeş, and the question whether the Romanian authorities “ knew or ought to have known ” of the CIA rendition operations and purposes of the CIA aircraft landings on Romanian territory in 2003-2005, Senator Marty testified : “ ... I would also like to point out that in the framework of the NATO system, for all these operations, NATO had applied the very highest degree of secrecy under the NATO code. This highest secrecy code can be summed up as the ‘ need to know ’ principle; it is only people who strictly need to know who should be aware of what is going on and they must only be aware in as far as it is necessary. So I do not think that the Romanian authorities knew that there was waterboarding, that there was torture, and so on. But the people [the high-office holders] I referred to, and this is based on extremely precise testimony, must have known that the CIA had used their territory for transfers of prisoners in the context of the war on terror. We never said that the Poles or the Romanians had run those prisons, we always said those prisons were exclusively managed by the CIA. And the CIA would not accept any intrusions, not even by any other American services. What we do say is that those people – probably the majority of the government – knew nothing about it but those people must of necessity have been aware that something very unusual was going on: planes were landing, people were being disembarked, and the like. Or in any event they did everything to see nothing, hear nothing and say nothing, and that is a classic approach which we have in all countries where there have been renditions or secret prisons. ” 381. In response to the question whether in the Marty Inquiry an exact physical location of the alleged CIA “ black site ” had been established, Senator Marty said: “ No, because we did not have a specific indication. The site was, however, the most protected element secrecy-wise, even people who knew that this anti-terrorist operation was going on did not perforce know where the site was precisely located. For Poland, it was easier. We were even able to go in situ and were able to obtain information in situ. So, for [Romania], it was far more complicated. ” In response to the Government ’ s questions concerning indications of such a location, he added: “ I say it is true that at the time we were not in a position to indicate the place of detention, but that Romania participated in these CIA programmes, there is no shadow of a doubt in my mind about that. ” D. Mr J.G.S. 382. Mr J.G.S. is a lawyer and investigator. He worked on multiple investigations under the mandate of the Council of Europe, including as advisor to the PACE ’ s Rapporteur Senator Marty (2006-2007) and as advisor to the former Commissioner for Human Rights, Mr Thomas Hammarberg (2010-2012). In 2008-2010 he served on the United Nations ’ international expert panel on protecting human rights while countering terrorism. He is presently engaged in official investigations into war crimes and organised crime cases. On 28 March 2011, in El- Masri, Mr J.G.S. submitted an expert report detailing the factual findings of his investigations into the applicant ’ s case (see El-Masri, cited above, § 75). On 2 December 2013 Mr J.G.S. testified before the Court at the fact-finding hearing held in Al Nashiri v. Poland (cited above, §§ 324-331 ) and Husayn (Abu Zubaydah) v. Poland (cited above, §§ 305-312 and 318-325 ). 383. In his testimony before the Court, he stated, among other things, as follows. 384. In response to the judges ’ question whether on the basis of the evidence known to him, Romania “ knew or ought to have known ” of the nature of the CIA extraordinary rendition programme and that the programme operated on its territory, Mr J.G.S. stated: “ It is quite clear to me that the Romanian authorities not only should have known, but in fact did know of the nature and purpose of the CIA ’ s secret operations on its territory. In our report of 2007, for the Marty Inquiry, we inferred this conclusion already then, 9 years ago, based upon excellent source information that we had procured from both sides of the Atlantic, multiply corroborated, validated and verified by documentary records, and rooted in our understanding of a conceptual framework, and a practical implementation of bilateral agreements struck between the CIA and its counterpart agency in Romania. But I can say to the Court today that this is no longer an inference, it is no longer simply a collation of disparate sources, because the [US] Senate Committee of Inquiry, and I refer the Court to page 97 of that 499-page executive summary, has explicitly stated that the host authorities of the country in which Detention Site Black was located, provided co-operation and support for those activities, and indeed that the CIA, through its station in Romania, was able to provide a substantial sum of money, in the region of ten million United States dollars, as a ‘ subsidy ’ to its Romanian counterparts in recognition of their active participation. In the report in 2007, we talked about the extraordinary permissions and protections that Romania provided. We talked notably about secure zones, of which there were several on Romanian territory, and of which we knew of the existence of at least one. We characterised this as being a level of cooperation that depended on authorisation from the highest levels of the Romanian state authorities. That aspect too, Your Honour, is confirmed by the US Senate Committee Inquiry. It talks about, explicitly in that same paragraph, on that same page, the highest levels of the country ’ s government. So what we heard from our sources who, incidentally, have remained credible upon our assessment, has now been formalised in the form of the reporting by the Senate Committee which, incidentally, had access to a vast array of classified information, which we did not have access to. And so we wish to state, quite clearly, categorically, that the Romanian authorities, at the highest level, did know about the existence of secret detention on their territory and furthermore that they were aware of the precise purpose of the rendition flights entering and exiting the country, and the conditions, or roughly the conditions, under which detainees were held in between their arrivals and their departures. ” 385. In response to the judges ’ question as to how a specific detainee could be linked with a specific flight and how it was possible to identify which specific person or persons had been transported on a specific rendition plane, the expert-witness stated: “ I can confirm that I participated closely in the inquiry under Commissioner Hammarberg which led to the production of the memorandum in March 2012 and I can also confirm that, at that point, almost five years after the conclusion of our second Marty Report, we were in possession of substantially more information, notably through the declassification of reports from the United States, but also through an evolving process of developing sources, developing new relationships, filing requests for information with different authorities, and indeed benefiting from a wide range of partnerships and alliances in some of the countries in question and indeed in the United States. The process of linking a specific detainee to a specific flight was, indeed, for a long time elusive. In order to make this connection, one requires both authoritative information about the planning and execution of the flight and furthermore, from the CIA itself, authoritative information as to the interrogation schedule, the process of debriefing or interrogating the detainee, and specific junctures in that detainee ’ s detention which constitute a move or a change or a development or a transition in that detainee ’ s treatment. As I demonstrated in my presentation with reference to the CIA Inspector General ’ s Report, there are occasions in the declassified documents on which moves are referred to explicitly, and indeed are given dates. When that move links a particular named individual, such as Al Nashiri, with a point of provenance, such as Thailand, and a point of destination, such as Poland, it is then possible, within a very small margin of error, to go looking for a flight that corresponds with those dates. This example was indeed the breakthrough in that regard, this methodology, because for the first time in the Inspector General ’ s Report [in the present judgment referred to as ‘ the 2004 CIA Report ’ ], we were told that an interrogation schedule concluded on 4 December [2002]. The reason for its conclusion was a move, and furthermore that Al Nashiri, together with Abu Zubaydah, was taken to another ‘ black site ’. The only means of transportation that the CIA used to move detainees was rendition aircraft, and through our assessment and investigation of rendition aircraft over multiple years, we have been able to crack that system and to trace those movements using contractor documentation, international aeronautical services information, and all the other logs that I have used in the presentation. So the linking depends on a specific correlation of information from both the aviation side and the operational side in the CIA ’ s ‘ black sites ’ themselves. I would direct you, Your Honours, to the [US] Senate Committee Inquiry for multiple further specific date references and specific references to individuals being moved between different sites. ” 386. Replying to the judges ’ question as to how could Mr Al Nashiri could be differentiated as being rendered to Romania on 12 April 2004 from other detainees known to have been held in Guantánamo and rendered by the CIA from there at approximately the same time, Mr J.G.S. stated: “ I can give you two specific examples. Ramzi bin al-Shibh, who had been in Morocco with Al Nashiri initially, in 2003, was taken back to Morocco, as was Ibn al-Shaykh al-Libi, who was the source of the now notorious intelligence on Iraq, which led Secretary of State Powell to make a case for war. He was held in Guantánamo Bay at the same time as Al Nashiri, but he was taken to Morocco. How do we know? Because he features in the further descriptive narrative regarding Morocco in the [US] Senate Committee Report, as does Bin al-Shibh. These two individuals are cited as having gone back to Morocco and having found the conditions of their detention there to be impossible to sustain because of abuse or cries of abuse they could hear taking place in adjacent cells, part of the Moroccan system. This again was a source of some acrimony, some misunderstanding, some difficult relations between the CIA and the Moroccan counterparts and as such features prominently in the Senate Committee ’ s Inquiry. There is no mention whatsoever of Al Nashiri there, and I maintain that is because he was in Romania. ” 387. Replying to the Government ’ s question as to which evidence had led him to the conclusion that a simple change in flight plans or in the use of ultimate destination represented a cover-up with the complicity of the national authorities, Mr J.G.S. stated: “ Thank you for your question, Madam. This allows me to introduce to the Court some very important insights gleaned from the flight planning process at its point of origin in the United States and the documents of which are included in the materials before the Court by virtue of the docket in the New York State Court litigation between Sportsflight Air Inc. and Richmor Aviation. In particular, there are documents within this docket which refer specifically and in advance to deliberate attempts to file false destinations for rendition aircraft. There is, for example, a differentiation between points of departure, points of destination, as Madam Agent rightly said, ‘ alternates ’, and then, what the CIA describes as ‘ hard arrival points ’. ‘ Hard arrival ’ were the real destinations, the real timings that the CIA demanded its contractors to fulfil. Everything else in the flight planning process, as was delegated to Jeppesen, Air Rutter International and other contractors, was allowed to have a veneer of compliance with international civil aviation rules, but was in fact nothing more than a cover, a shell, behind which these unlawful operations actually took place. I shall address directly, Madam, your question: how can I differentiate between a simple in-flight change of plan? I could countenance such an alternative explanation if it were to have happened but once, perhaps twice or occasionally in a sequence of rendition flights. But in respect of Romania alone, this systematic practice was deployed up to twelve times, using every time the same methodology. Specifically the points of departure would be fixed because they were physically where the plane took off from, but points of destination, ADES, as they are called in the AFTN system, were never stated as the actual airport to which the rendition aircraft was destined. If at all Bucharest Băneasa appeared, it appeared only as an alternate, and on several occasions it did not appear at all in any flight plan, either as destination-in-chief or as alternate, despite the fact that trip sheets, government contracts, even pre-emptive billing invoices had been prepared in the United States by the CIA ’ s contractors, stating explicitly what the hard arrival airport and time was, and on each occasion Bucharest – Baneaşa was that hard arrival point. It cannot be put down to mere innocent coincidence, in-flight change of plan, when it is conceived of in advance, when there is only one purpose for which these rendition flights are being deployed, and when the only site that corresponds with the cables, the contracts, the flight plans, the instructions, the billing invoices and, indeed, the multiplicity of source testimony, is the ‘ black site ’ hosted on Romanian territory in Bucharest. So an alternative explanation does not fit in these circumstances; there is one clear and categorical truth, and that is, this was a deliberate act of deceit to disguise unlawful detainee transfer activity. ” He further added: “ ... [I]n the process of executing these renditions, the CIA did file flight plans for every aircraft in which dummy destinations were inserted into the planning text in order to provide the aircraft with a premise upon which to enter the airspace of the country in question. So, for example, as the Court heard in the proceedings against Poland, on multiple occasions, aircraft filed for destinations such as Prague in order to have a premise to enter Polish airspace, after which the Polish air navigation services would navigate them to a landing at Szymany. When the Polish authorities produced records of landings at Szymany, they stated explicitly in their own documentation that several of these landings had occurred ‘ brak FPL ’ ( ‘ without a flight plan ’ ), precisely the point that you have just suggested would be impossible. It happened. In Romania, as I demonstrated in my presentation today, flight plans were filed for alternative destinations which included other Romanian airports, Timişoara, Constanţa, but only in order to give that aircraft a premise upon which to enter Romanian airspace. From entering airspace, Romatsa and the counterparts in the Romanian authorities, navigated those aircraft to undeclared landings at Bucharest, Băneasa. I have this upon the first-hand authority of persons involved in the execution of those rendition flights. I also have Romanian documentation demonstrating these landings at Bucharest, Baneaşa, indisputably because a plane is physically on the ground in Bucharest and yet, for the same flights, having trawled all the multiple sources of aviation data in my possession, I have not found any flight plan valid for a landing at Băneasa. Hence, the same systematic practice, deliberate disguise and deceit, used by the CIA but dependent upon the complicity and cooperation of Romanian counterparts. ” Lastly, in relation to the Government ’ s question relating to the “ STS ” special status designation accorded to some CIA rendition aircraft, Mr J.G.S. stated: “ ... [T]hose aircraft used by the CIA in conjunction with its in-house aviation services provider, Aero Contractors, more often than not cited this special designation in their flight plans. There were two aircraft in particular, both of which travelled to Romania, N313P and N379P, which fall under this designation. It is explicitly stated and cited in the flight plans filed by Jeppesen Dataplan, the aviation services provider used for these aircraft, that STS or state indicator is averred as a special privilege vis-à-vis all authorities whose territories the aircraft will traverse or land in, in the course of its circuit. What that status affords the flight is a different characterisation in the flight plans, but that is not to suggest that upon landing in Romania there would be any diplomatic reception or any form of special treatment, in fact. On the contrary, most of these aircraft landed without being subjected to basic border guard controls, basic customs inspections. They were not granted special treatment in the sense of a state designation, they were in fact granted special treatment of an entirely different sort, of a sort which indicates permission to perform unlawful detainee transfers. So you ask me, why did they invoke the STS indicator, or on what basis does it change the status? What it does, is that it creates a further layer of deceit as to the real purpose of these aircraft, it creates the impression that these aircraft are somehow untouchable and it creates the impression that they ought not to be scrutinised by their receptor authorities. But does it change how they are received on the ground? In itself, no, it does not. ” E. Mr Black 388. Mr Black is an investigator with the Bureau of Investigative Journalism and with Reprieve, having extensive experience in the field of the CIA extraordinary rendition programme. On two occasions, in 2012 and 2015, he was heard as an expert in the LIBE inquiry into the alleged transportation and illegal detention of prisoners in European countries by the CIA. He was involved in the preparation of the 2015 LIBE Briefing (see also paragraphs 282, 289 and 355-358 above ). Since 2010 he has continuously carried out research on the CIA Eastern European “ black sites ”. 389. In his testimony before the Court he stated, among other things, as follows. 390. In response to the judges ’ question whether, on evidence that he had accumulated in the course of his research and had been known to him, it could be established beyond reasonable doubt that a CIA detention facility had indeed existed in Romania in 2003-2005, Mr Black stated: “ I believe it is clear, beyond reasonable doubt, that there was a CIA detention facility in Romania. I am convinced on a wide array of different types of evidence that it operated from September 2003 until November 2005. I believe it is clear beyond reasonable doubt that, among others, Khalid Sheikh Mohammed was held in it, Hassan Ghul was held in it, Janat Gul was held in it, Abu Faraj Al-Libi was held in it, Al Nashiri was held in it, Walid Bin Attash was held in it, on two occasions in fact, Samr al-Barq was held in it, Abu Munthir al Maghrebi was held in it. I believe there are indications that others, including Hambali, Lilie, Mohammed Qurban Ibrahim, were held in it. All of these statements are backed by, if you will, an array of evidence which includes aviation data that can be categorically related to the US Government ’ s rendition programme. It includes statements made by the [US] Senate Committee Report that was declassified in 2014, it includes new material that has just recently been declassified by the government, by the US Government earlier this month. My findings in which I discuss the evidential basis for these statements were most recently formulated in a briefing that I wrote for the LIBE Committee in September last year. I am not sure if the Court has seen that document, I understood that the LIBE Committee was going to publish it last year, but in fact I found that perhaps they did not. If the Court has not seen that document, then of course I would be happy to provide it. Since I wrote that, as I say, there have been some new developments in the last few months where further research on the basis of the [US] Senate Committee Report and newly declassified documents from the CIA that came out a few weeks ago, have further confirmed the findings that I made in the original briefing and have also added some new names and some new information to the list. But I mean, you know, I can give you, if you wish, I could give you the dates of when each of those specific individuals were held in Romania to the best of my knowledge and findings, but I mean the fact that those individuals were held in Romania at various points between 2003 and 2005 is absolutely beyond reasonable doubt, there cannot be any alternative narrative to that that makes any sense. In terms of your question as to where precisely the facility was where they were held, this is not something that really I have exhaustively researched because it is not really something that the methodologies I use are particularly able to build up a picture of. I mean I would go so far as to say that it is likely, on the basis of all the evidence I have seen, that the facility was in Bucharest. We are all aware of the publication by Associated Press and others a few years ago that it was in the basement of the ORNISS building. I mean I cannot say that my researches would confirm that or deny that, certainly I have not seen anything that would tend to deny it. ” 391. Replying to the judges ’ question whether Romania “ knew or ought to have known ” of the nature of the CIA rendition programme, that it had operated on its territory and whether their knowledge had been such as to enable the Romanian authorities to be aware of the purposes of the CIA aircraft landings in Romania in 2003-2005, Mr Black stated: “ I think it is clear that the authorities were aware of it because, among other things, they received money for it. They received more than eight million dollars, we can determine from a reading of the [US] Senate Committee Report, how much more than eight million dollars I do not know. And I think it is also clear from a reading of that report that they demanded its closure at a certain point in November 2005. And I believe it is normally common practice, as far as we can tell from the Senate Report which I take in this instance to be authoritative, that the host country ’ s officials were in the know about these facilities and the purposes of them. I think that it is clear, in the case of Romania, that there were officials who were aware that they had been paid money by the CIA to house prisoners and that the prisoners were being transported in by covert means. ” 392. Mr Black further identified the alleged CIA detention facility in Romania as the one referred to as “ Detention Site Black ” in the 2014 US Senate Committee Report: “ I have gone into it in more detail in the briefing that I prepared for the LIBE Committee, but to kind of give a brief summary, Detention Site Black is the site that fulfils, in terms of its operating times, the flight paths that we know to have been connected to prisoner movements and to the CIA ’ s rendition programme. Detention Site Black is the one that correlates precisely with those flight paths that our research has discovered, has reconstructed, if you will. There are, there are other indicators which include cables that are sent from Detention Site Black that correspond to prisoners who were flown into Romania on flights that are connected via their contracts and invoice numbers to the CIA rendition programme, cables that specifically reference the behaviour of certain prisoners. For example, the Senate Report makes reference to a number of prisoners who were held at site ‘ Black ’ whose movements have been correlated with flights moving into Romania or out of Romania within the timeframe that makes sense. ” 393. Answering the Government ’ s question as to what differentiated – assuming that the flights in question were indeed rendition flights – ” stopover ” landing points from prisoners ’ transfers, Mr Black responded: “ ... [T]here are a series of characteristics which, I mean, which prisoner transfers, as in the point of pick-up and the point of drop-off, they occur on specific days, on specific times that can be cross-correlated with documents relating to the movements of prisoners. They occur in specific destinations, which consistently match other accounts of the movements of prisoners. It is when you look at the totality of the evidence, it is clear, for example, that some destinations are commonly used as rest and recuperation. There are places where crews go before they carry out a transfer or after they have carried out a transfer, so those are destinations like Mallorca, Dubai, there are others, and there are destinations that are commonly technical refuelling destinations which tend to be in the Atlantic because they occur when the planes are moving from Washington D. C. to North Africa, the Middle East or Europe to carry out rendition flights, so those are typically places like the Azores or Ireland, Scotland. Now, in a sense, to answer that question fully we would have to go through each of these flights in sequence and say why it does not make sense that in any one of them Romania is the refuelling destination rather than the prisoner movement destination, but I mean rather than do that, I would say in summary that, when you take the totality of the evidence, the consistency with which the points of transit through Romania match the points of transit that we know apply to the movement of prisoners, is such that it does not really allow any alternative narrative. ” THE LAW I. THE GOVERNMENT ’ S PRELIMINARY OBJECTIONS TO THE ADMISSIBILITY OF THE APPLICATION A. Romania ’ s lack of jurisdiction and responsibility under the Convention in respect of the applicant ’ s alleged rendition to Romania, detention and ill-treatment in a CIA detention facility in Romania and transfer out of Romania 394. Article 1 of the Convention states: “ The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention. ” 1. The Government 395. The Government, in their written and oral pleadings, asserted that the applicant had not demonstrated that at any time during his detention under the HVD programme he had fallen under Romania ’ s jurisdiction within the meaning of Article 1 of the Convention. In that regard, they referred to the general standards for State responsibility set by international law, stressing that for an act to be characterised as an internationally wrongful act engaging State responsibility, it must be attributable to the State. In the light of the International Law Commission ’ s Draft Articles (see paragraph 210 above), there must be either direct knowledge and involvement in an internationally wrongful act on the part of the State, or indirect knowledge, inferred from the assumption that a State exercising its jurisdiction over its territory should not ignore the commission of an internationally wrongful act within its territorial jurisdiction. In their view, for a better understanding of the responsibility that would have been engaged had there been a secret detention facility in Romania, it was still necessary to distinguish between different scenarios of the State ’ s attitude and conduct: its potential agreement to put a facility at the disposal of another State, its knowledge of the exact purpose of the operation of a secret detention facility, the exercise of the State ’ s authority over that facility, and whether it knowingly permitted the use of its territory for activities entailing human rights violations. 396. Accordingly, Convention responsibility could be attributed to Romania only if it had knowingly permitted its territory to be used by another State for activities entailing human rights violations. In that scenario, the question to be resolved was whether, in view of the public awareness regarding the secret detention programme, the authorities should have become aware of the fact that the flights operating on the territory of Romania had been CIA-operated flights and whether, on this basis, they should have inferred that there had been a secret detention facility in Romania and have acted in accordance with their obligation of due diligence. However, on the evidence before the Court, including the reports of the international inquiries or non-governmental sources, there was no indication that the Romanian authorities – autonomously or in cooperation with a third State – had put in place or run a secret detention facility. No evidence showed that the Romanian authorities had knowingly and expressly agreed, after being informed of the purpose or nature of activities to be performed in that facility, to put such a location at the disposal of third parties. In support of their arguments, the Government relied on the Court ’ s case-law, in particular Ilascu and Others v. Moldova and Russia (no. 48787/99, 8 July 2004), Loizidou v. Turkey (no. 15318/89, 18 December 1996), and Soering v. the United Kingdom (no. 14038/88, 7 July 1989). They also cited the International Court of Justice ’ s ruling in the case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide ( Bosnia and Herzegovina v. Serbia and Montenegro, judgment of 27 February 2007). 397. The Government also considered that the International Court of Justice ’ s judgment in the Corfu Channel case ( United Kingdom v. Albania, judgment of 9 April 1949, ICJ Reports 1949, p. 17) was particularly relevant to State responsibility since it had established the threshold required for circumstantial evidence. In particular, the International Court of Justice had held that a “ charge of such exceptional gravity against a State ” – and the charge laid by the applicant in the present case was one of such gravity – would require a “ degree of certainty ” that had not been reached in that case. Moreover, it had stated that (ibid., p. 18) “ it [could not] be concluded from the mere fact of the control exercised by a State over its territory and waters, that that State necessarily knew, or ought to have known, of any unlawful act perpetrated therein, nor yet that it necessarily knew, or should have known, the authors. This fact by itself and apart from other circumstances, neither involve[d] prima facie responsibility nor shift[ed] the burden of proof ”. 398. It was the Government ’ s firm position that the applicant had not produced any prima facie evidence capable of establishing a direct or indirect link between his rendition and detention under the CIA HVD Programme and any act or omission on the part of the Romanian authorities. They asserted that the applicant had not entered Romanian territory, had not been held in a “ secret ” detention facility there and had never been transferred to or removed from Romania. No action concerning his transfer or detention had ever been taken jointly by the Romanian authorities and other foreign authorities. This assertion, the Government added, was not meant to prevent the Romanian investigating authorities from reaching a different conclusion on the closure of the criminal investigation instituted in connection with the applicant ’ s allegations if any new convincing evidence had subsequently emerged. However, in the light of the evidence as it currently stood and the domestic authorities ’ findings so far, the applicant had never been on Romania ’ s territory or under the jurisdiction of the Romanian authorities. 399. In the Government ’ s submission, the applicant ’ s account of the facts amounted to mere suppositions because evidence presented by him mostly consisted of various excerpts from media news, international reports and non-governmental organisations ’ allegations. In fact, the so-called “ sources ” on which the applicant relied simply reiterated in different terms the same information as the article published in The Washington Post in November 2005. Such materials could not make up for the absence of official documents confirming his claims. In this connection, the Government also contested the credibility of the 2006 and 2007 Marty Reports, Mr Hammarberg ’ s findings and memorandum, materials collected by Reprieve in the context of its rendition research activities, and the CIA sources (see also paragraphs 4 30 -43 5 below). 400. The Government did not dispute the existence of the HVD Programme and the fact that the applicant had been subjected to secret detention and ill-treatment under that programme. These were objectively established factual elements proven by several international inquiries and acknowledged by US officials. Nevertheless, in the present case there was no evidence and not even a mere presumption of fact indicating that the Romanian State had been an accessory to violations of human rights occurring during the CIA ’ s rendition operations. Nor was there any direct or indirect connection between the Romanian authorities and the HVD Programme. 401. At the oral hearing, following the taking of evidence from experts at the fact-finding hearing, the Government maintained their position. They considered that the experts had found arguments supporting their theories with surprising ease, without analysing contradictions and choosing from previous reports or inquiries only the convenient elements. In the Government ’ s view, no proof had yet emerged to confirm that the facts complained of had occurred under Romania ’ s jurisdiction. In that context, they underlined that the negative conclusion as to the existence of suspicious flights or secret detention facilities in Romania had been reached by the national authorities after an inquiry conducted in a spirit of cooperation – cooperation that had not always been recognised by the bodies conducting international investigations. 402. In sum, the so-called “ evidence ” in the case was ambiguous and dubious and in reality constituted mere assumptions drawn from the fragmentation and interposition of various publicly accessible pieces of information disseminated by the media. Accordingly, the Government invited the Court to declare the application inadmissible pursuant to Article 35 § 3(a) in conjunction with Article 1 of the Convention. 2. The applicant 403. The applicant replied that the Government ’ s arguments were without merit. In his written submissions, he stated that Romania ’ s knowing and intentional participation in the CIA ’ s operations and its failure to act on its positive obligations had resulted in the applicant ’ s secret detention and ill-treatment on Romanian territory. Citing the Ilascu and Others v. Moldova and Russia judgment, the applicant stressed that “ the acquiescence or connivance of the authorities of a Contracting State in the acts of private individuals which violate[d] the Convention rights of other individuals within its jurisdiction ” engaged the State ’ s responsibility under the Convention. Also, under Article 1 of the Convention, in addition to its duty to refrain from interfering with the enjoyment of the Convention rights and freedoms, the Romanian State had positive obligations to take appropriate steps to ensure respect for those rights and freedoms within its territory. 404. In the applicant ’ s view, he had established more than a prima facie case that he had been detained and tortured in Romania under the CIA secret detention and extraordinary rendition programme. The burden now shifted to the Government to provide a “ satisfactory and convincing explanation ” as to whether he had been detained and ill-treated. 405. Notwithstanding the wealth of evidence confirming that Romania had hosted a secret CIA prison where he had been detained, the Romanian Government had not only categorically denied that they had hosted a CIA prison but also attempted to discredit findings issued by reputable officials such as the Council of Europe ’ s Commissioner for Human Rights and Senator Dick Marty, as well as evidence produced before the Court in general. 406. In that regard, the applicant emphasised that, as confirmed in the El - Masri judgment (cited above), while the Court generally applied the “ beyond reasonable doubt ” standard of proof in assessing evidence, there were no procedural barriers to the admissibility of evidence or pre ‑ determined formulae for its evaluation. The Court could rely on evidence of any kind and make its free assessment. For instance, in El-Masri, a case where the applicant had likewise been subjected to rendition, secret detention and torture under the CIA HVD Programme, the Court had considered a variety of evidential sources, including the 2006 and 2007 Marty Reports, the 2007 Fava Report, a report by the Council of Europe ’ s Commissioner for Human Rights, Wikileaks cables, reports of the ICRC and non-governmental organisations such as Amnesty International and Human Rights Watch, and declassified CIA documents. The Court had specifically referred to a “ large amount of indirect evidence ” obtained during international inquiries, including aviation and flight logs, among many other materials that had corroborated Mr El ‑ Masri ’ s claims. The Court had been satisfied that there had been prima facie evidence in favour of the applicant ’ s version of events, that the burden of proof should shift to the respondent Government, and that the Government had failed to demonstrate conclusively why the evidence could not corroborate the applicant ’ s allegations. It had ultimately found “ the applicant ’ s allegations sufficiently convincing and established beyond reasonable doubt ”. The Court had adopted the same approach in Al Nashiri v. Poland. 407. The applicant considered that the Court ’ s findings of fact in Al Nashiri v. Poland were valid in the present case. He referred to the publicly available verbatim record of the fact-finding hearing in that case and the testimony of Senator Marty and Mr J.G.S. who had stated that there had been a secret CIA detention site in Bucharest. He further relied on the documents that had become public after the delivery of the Al Nashiri v. Poland judgment, in particular the 2014 US Senate Committee Report and materials collected by the European Parliament in connection with its LIBE Committee ’ s inquiry into allegations about the CIA secret detention facility in Romania. 408. At the oral hearing, in response to the Government ’ s submissions (see paragraphs 39 5 -40 2 above ), the applicant stated that, in the light of evidence gathered in the case, it was established beyond reasonable doubt that Romania had hosted a secret CIA prison from September 2003 to November 2005 and that he had been secretly detained in that prison. The 2014 US Senate Committee Report and other documentary exhibits before this Court, as well as cogent and credible expert testimony, confirmed these facts. The applicant ’ s torture and secret detention, together with his transfer from Romania in the face of real risks of further torture and undisclosed detention could be attributed to the Romanian State because these acts had occurred on Romanian territory with the acquiescence and connivance of the Romanian authorities and because Romania had failed to fulfil its positive obligations to prevent these acts, despite being on notice that they would occur. 409. In conclusion, the applicant asked the Court to reject the Government ’ s preliminary objection. 3. The Court ’ s assessment 410. The Court observes that in contrast to cases where objections that a State had no jurisdiction were based on the alleged lack of the respondent State ’ s effective control over the “ seceded ” territory on which the events complained of had taken place (see Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, §§ 300-30 4, ECHR 2004 ‑ VII ) or an alleged lack of attributability on the grounds that the events complained of had occurred outside the respondent State ’ s territory and were attributable to another entity (see Loizidou v. Turkey (preliminary objections), 23 March 1995, §§ 47 and 56 Series A no. 310; and Cyprus v. Turkey [GC], no. 25781/94, § § 69-70 ECHR 2001 ‑ IV), in the present case the Government ’ s objection in effect amounts to denying that the facts adduced by the applicant in respect of Romania had actually ever taken place and to challenging the credibility of the evidence produced and relied on by the applicant before the Court (see paragraphs 39 5 -40 2 above). The issue of the Romanian ’ s State responsibility under the Convention is therefore inherently connected with the establishment of the facts of the case and assessment of evidence. Consequently, in order to determine whether the facts alleged by the applicant are capable of falling within the jurisdiction of Romania under Article 1 of the Convention, the Court is required first to establish, in the light of the evidence in its possession, whether the events complained of indeed occurred on Romanian territory and, if so, whether they are attributable to the Romanian State. The Court will therefore rule on the Government ’ s objection in the light of its findings regarding the facts of the case (see paragraphs 600 -60 2 below). B. Non- compliance with the rule of exhaustion of domestic remedies and the six-month rule 411. Article 35 § 1 of the Convention states: “ The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken. ” 1. The Government (a) Non-exhaustion of domestic remedies 412. In the Government ’ s submission, the applicant had made only a formal and superficial attempt to exhaust domestic remedies. In their written pleadings they maintained that, pursuant to Article 222 of the CCP, the applicant should first have applied to the domestic authorities to obtain redress for a violation of his rights on account of the commission of any alleged offences. In that connection, they drew the Court ’ s attention to the fact that the applicant had lodged a criminal complaint on 29 May 2012 and merely two days later – on 1 June 2012 – had brought his application to the Court. In the Government ’ s view, the applicant ’ s personal opinion that any attempt to exhaust domestic remedies would have been futile because the Romanian authorities had constantly denied the existence of “ secret detention facilities ” had not entitled him to address his grievances directly to the Court, thereby depriving Romania of the opportunity to pursue a criminal investigation into his allegations. As demonstrated by a number of examples from the Court ’ s judgments in Romanian cases, a criminal complaint was an effective remedy for the purposes of Article 35 § 1 and the Government saw no reason why it should not be effective in the applicant ’ s case. Given the complexity of the case, he could not realistically expect that his criminal complaint would immediately bring results. 413. At the oral hearing, the Government added that while in some cases the passage of time from the date of lodging the application could make a non-exhaustion objection obsolete, this was not so in the applicant ’ s case. The criminal investigation in Romania was still pending and a number of important actions had in the meantime been taken by the prosecution. However, the applicant ’ s representatives had so far displayed no more than a limited interest in the investigation. For two and a half years they had taken no step to participate in the proceedings and when they had finally had done so, they had asked only for information about the case-file number. In the circumstances, the application had been and remained premature. (b) Non-compliance with the six-month term 414. The Government next argued that the applicant had also failed to comply with the six-month rule in Article 35 § 1 of the Convention. If, as he claimed, a criminal complaint that he had filed on 29 May 2012 had not been an effective remedy for the purposes of this provision, according to the Court ’ s case-law he should have lodged his application within six months from the time when he had become aware of the fact that he had been detained in Romania. In their view, that time-limit had begun to run on 6 May 2011, the date on which he had lodged his application with the Court against Poland. In that application, based on the same documents as his application against Romania, he had stated that after his detention in Poland “ he [had been] moved from Guantánamo Bay to Rabat and then to another CIA prison in Bucharest, Romania, sometime after 27 March 2004 ”. Accordingly, his present application, being submitted on 1 June 2012, i.e. more than a year later, had been lodged out of time and should be rejected. 2. The applicant 415. The applicant asked the Court to dismiss the Government ’ s objections. (a) Non-exhaustion of domestic remedies 416. As regards the exhaustion of domestic remedies, the applicant stressed that the national authorities had been on notice of a CIA secret prison on their territory at least since November 2005, when public records of such a prison had first resurfaced. The prosecution had shown a complete lack of interest in the matter. In addition, as set out in Mr Hammarberg ’ s affidavit, they had ignored his repeated requests for an investigation to be opened and had not responded to the dossier of evidence relating to the secret CIA prison that he had submitted to the Romanian Prosecutor General. Viewed in the context of the Romanian authorities ’ pattern and practice of obfuscation and denial, it was apparent that the criminal investigation was plainly ineffective. As such, there was no merit to the Romanian Government ’ s claim that the application should be deemed inadmissible for non-exhaustion of domestic remedies. (b) Non-compliance with the six-month rule 417. The applicant acknowledged that it was true that in his application against Poland he had summarily mentioned that he had been held in a secret detention facility in Bucharest. But at that time the facts relating to the precise location of the secret CIA prison in Romania and the treatment of detainees held there was still unknown and, consequently, there had not yet been sufficient information to file an application with the Court. Given the complexity of the case and the nature of the alleged human rights violations at stake, he was entitled to build an arguable case, which included obtaining critical information as to the location of the detention facility. It was not until 8 December 2011 that this location had become publicly known and named via news report in The Independent that cited former US intelligence officials familiar with the location. It had been the first time that the location of the prison, i.e. the building used by the National Registry Office for Classified Information, known as “ ORNISS ”, together with a description of its interior and details of ill-treatment of prisoners held there – including the applicant – had been publicly disclosed. 3. The Court ’ s assessment 418. The Court observes that the Government ’ s objections raise issues concerning the effectiveness of the applicant ’ s criminal complaint and the subsequent investigation into his allegations of torture and secret detention on Romanian territory and are thus closely linked to his complaint under the procedural limb of Article 3 of the Convention (see paragraph 3 above and paragraphs 602-604 below). That being so, the Court is of the view that the objections should be joined to the merits of that complaint and examined at a later stage (see, mutatis mutandis, Al Nashiri v. Poland, cited above, § 343 and Husayn (Abu Zubaydah) v. Poland, cited above, § 337, both with further references to the Court ’ s case-law). II. THE COURT ’ S ESTABLISHMENT OF THE FACTS AND ASSESSMENT OF EVIDENCE A. The parties ’ positions on the facts and evidence 1. The Government 419. As noted above in respect of the Government ’ s arguments as to Romania ’ s lack of jurisdiction and responsibility under the Convention, they denied on all accounts the applicant ’ s allegations as being unsupported by any evidence and, consequently, having no factual basis. They also challenged the credibility of most part of the evidence gathered in the case and denied Romania ’ s knowledge of, and complicity in, the operation of the CIA HVD Programme on its territory at the material time (see paragraphs 39 5-402 above). The Government ’ s conclusions on the facts and evidence were as follows. (a) Lack of evidence demonstrating that a CIA ” black site ” operated in Romania 420. First of all, the Government maintained that there had been no evidence demonstrating that a CIA secret detention facility had ever existed in Romania. They maintained that all the applicant ’ s allegations to that effect were based on inconsistent and contradictory speculations. (i) Contradictory statements as to the “ life cycle ” of the alleged CIA ” black site ” in Romania 421. The sources relied on by the applicant had given contradictory indications regarding the period during which a “ secret ” detention facility had allegedly operated in Romania. The 2007 Marty Report affirmed that that facility had been opened in 2003 and had become highly important in 2004. It mentioned that it had been closed in November or December 2005 following the Washington Post ’ s revelations. This contradicted the media sources indicating that the “ secret prison ” had been closed in the first part of 2006. According to the article published in The Independent on 8 December 2011, secret detention centres in Romania had been closed by May 2006. Reprieve had taken an approach differing from that of ABC News, stating that the detainees had been moved out of identified European “ secret ” locations prior to Secretary of State Condoleezza Rice ’ s visit to Romania on 5 December 2005. On the other hand, the Council of Europe ’ s Commissioner for Human Rights, in his dossier, had described the “ life ‑ cycle ” of the site as a “ period of at least one year, beginning with its opening on 22 September 2003 ”. Accordingly, the reliability and veracity of information concerning the period during which the alleged “ secret ” detention site had operated was extremely doubtful. (ii) Contradictory statements as to the location of the alleged CIA ” black site ” in Romania 422. As regards the location of the alleged CIA detention facility in Romania, at first there had been suppositions that it might have been located near Timișoara Airport, Mihail Kogălniceanu Airport or Băneasa Airport. These locations had been mentioned in succession, each for several years. The sources cited by the applicant had changed their assumptions each time it had been established that no “ secret ” detention facility had ever existed in the indicated place. Thus, a new location had subsequently been discovered. 423. In 2007 the Romanian Senate, following on-site inspections of the locations and after hearing witnesses, had established in its report that there had been no “ secret ” detention site near Mihail Kogălniceanu Airport in Constanţa, including the military airbase. Despite that fact, in 2011 some journalists had come up with another hypothesis, indicating the basement of the building used by the ORNISS, a public institution, as a secret prison. To justify their speculations, they had not, however, supplied any solid evidence, or even any credible indications. 424. In 2007 Senator Marty had seemed convinced, quoting “ reliable sources ” within the CIA, that a secure area for the CIA transfers and detentions had been created near Mihail Kogălniceanu Airport. In 2009, the New York Times had quoted “ officials ” as saying that “ one jail was a renovated building on a busy street in Bucharest ”. In 2011, other “ reliable sources ” indicated the ORNISS building – which, the Government added, was located in a residential area and not on a busy street – as the location of the secret CIA detention site in Bucharest. 425. Lastly, in the pending criminal investigation there had so far emerged no evidence that any location in Romania or, especially, in Bucharest as suggested by the applicant ’ s sources, could have been used by the CIA as a secret prison. In contrast, the prosecution had obtained a statement from an official working for the ORNISS – which had been produced before the Court – confirming that their building could never be, and had never been, used as a detention facility. ( b ) Inconsistencies in the applicant ’ s account regarding the dates of his alleged rendition to and from Romania, and his secret detention in Romania 426. The Government next argued that the applicant ’ s account regarding the dates, circumstances and period of his alleged detention in Romania was inconsistent and therefore unreliable. In his application, the applicant had stated that he had been arrested in 2002 in Dubai. Then he had been held in Afghanistan and Thailand and moved to Poland on 5 December 2002. On 6 June 2003 he had been moved from Poland to Rabat, Morocco and, subsequently, on 22 September 2003 to Guantánamo Bay where he had been detained until 2004. On 27 March 2004 he had been transferred to Morocco and afterwards, to Romania. In 2006, the applicant had again been moved to Guantánamo Bay. Finally, he alleged that he had been “ secretly ” detained on Romanian territory from 6 June 2003 until 6 September 2006. 427. Other sources advanced the idea that the applicant had been transferred to Romania in September 2003 but then Reprieve had indicated 12 April 2004 as the date of his transfer to Romania. According to the 2007 Marty Report, the applicant had been brought to the CIA ” black site ” in Bucharest on the flight N313P on 23 September 2003. Mr Hammarberg, for his part, had maintained that the opening of the CIA prison code-named “ Bright Light ” and the start of the CIA operations at the Romanian “ black site ” had been marked by the N313P flight on the night of 22 September 2003. However, in his opinion, the applicant had been transferred to Romania on the N85VM flight directly from Guantánamo to Bucharest on 12 April 2004. 428. The Government emphasised that the applicant had indicated no precise date of the flight on which he had allegedly been transferred out of Romania. He only mentioned that he had remained in Romania until around 6 September 2006, when he had been moved to Guantánamo. Nor had the experts heard at the fact-finding hearing been able to give a precise date for his transfer out of Romania. 429. It was therefore clear that there was no conclusive evidence in support of any of the above versions of the possible dates, circumstances or period of the applicant ’ s alleged detention in Romania. (c) Lack of credibility of evidence adduced by the applicant, in particular the Marty 2006 and 2007 Reports, findings made by the Council of Europe ’ s Commissioner for Human Rights in 2009-2012, Reprieve research and CIA declassified documents 430. In the Government ’ s opinion, there was a particular circuit of information concerning the alleged existence on Romanian territory of “ secret ” detention facilities. To begin with, mass media had launched accusations against certain States. Later on, this information had been reiterated as genuine by non-governmental organisations protecting human rights. These organisations had presented as evidence data extracted from records, invoices, and flight plans of planes allegedly used for transferring detainees. At the same time, these organisations had deliberately ignored the verifications performed by some European countries regarding the flights allegedly connected to the rendition programme. As a consequence, the information contained in official documents was not based on strong evidence, but on the sum of the data given by the mass media based on non ‑ verifiable sources. 431. The Government contested the credibility of sources relied on by Senator Marty in his reports of 2006 and 2007. They said that the Marty Reports included many inconsistencies and contradictions. For instance, even though the reports had stated that the materials analysed, i.e. satellite photographs, aircraft movements and witness accounts, had not constituted evidence in the formal sense of the term, the authors had nevertheless found that these elements had been sufficiently serious to assume that a CIA secret detention facility existed in Romania. In the Government ’ s opinion, Senator Marty had displayed reluctance to reveal his alleged sources of evidence and protected them under the plea of a strict policy of confidentiality. Statements given by anonymous witnesses were not challengeable and this impeded the Government in properly contesting their reliability and defending themselves against the accusations made in the Marty Reports. 432. Referring to the 2007 Marty Report, the Government saw inconsistencies in many respects. For instance, it was mentioned that the evidence had been obtained through alleged discussions with “ well-placed persons from the Government and the intelligence services ”. It was also stated that information had been classified by the Americans into “ tiny pieces of information ” in order to prevent any single foreign official from seeing a “ big picture ”. But it was further said that only the highly placed officials had been aware of the HVD Programme. In these circumstances, those “ well - placed persons ” had been in no position to offer any information. The 2007 Marty Report spoke of the alleged “ operating agreements ” between the CIA and Romania to hold detainees. However, in the next paragraph Senator Marty had admitted that he had not seen the text of any such agreement. Furthermore, statements of Romanian politicians had been taken out of context to support the report ’ s erroneous conclusions. Even a declaration of the Romanian President had been distorted into a “ formal approval ” of the agreement for the cooperation in the HVD Programme. In sum, the 2007 Marty Report ’ s categorical conclusion that it “ [had been] finally established that secret detention centres [had] existed for some years in Romania ” seemed to have gone beyond the scant indications on which it had been based. 433. As regards Mr Hammarberg ’ s findings of 2009-2012, in particular those referred to in his affidavit and included in the dossier prepared for the Romanian Prosecutor General, the Government pointed out that they were – like Senator Marty ’ s conclusions – based on newspaper articles and sources that could not be verified. They were accordingly no more than unsubstantiated allegations. Also, in the same fashion as other experts before the Court, Mr Hammarberg had based his theories on selective materials, without analysing the existing contradictions. For instance, he had found support for his assertions as to the alleged use of the ORNISS building by the CIA in the fact that in Poland a State facility had hosted a secret detention site. This was concluded without having regard to obvious differences between a remote location and a building used on a daily basis by Government officials in a European capital. 434. Referring to Reprieve ’ s research and findings, the Government said that this non-governmental organisation represented the interests of some of the detainees held in Guantánamo and carried out a humanitarian project concerning persons who had been subjected to extraordinary rendition in the HVD Programme. Reprieve ’ s current case work involved representing fifteen prisoners from Guantánamo, assisting over seventy prisoners facing the death penalty around the world and conducting ongoing investigations into the rendition and the secret detention of “ ghost prisoners ” in the so-called “ war on terror ”. In these circumstances, Reprieve could not objectively state the facts in their documents and respective articles. 435. Lastly, the Government pointed out that the reliability of the CIA sources cited by the experts and various inquiries or media reports was open to doubt because even the 2014 US Senate Committee Report concluded that the CIA had leaked inaccurate information regarding the operation of the HVD Programme. (d) Lack of evidence demonstrating that certain planes landing in Romania between 22 September 2003 and 5 November 2005 carried out the CIA extraordinary rendition missions 436. The Government did not deny that several – allegedly “ suspicious ” – planes had landed at and taken off from Romanian airports; these flights had at least partly been documented by the 200 7 Romanian Senate Report. Also, publicly available evidence confirmed their stopovers on Romanian soil. However, the impugned flights had been of a private and non-commercial nature and had been treated accordingly. In all cases invoices, air navigation service sheets or ground handling charge notes had been issued for all the services provided. The flights had been included in the control lists of the navigation records. The declassified annexes to the 2007 Romanian Senate Report supported the conclusion that the purpose of the “ N ” flights ’ stops at Băneasa Airport had been mainly technical in nature. For instance, as regards the alleged “ rendition flight ” N85VM of 12 April 2004, the available documents attested that the flight had been recorded in the table containing handling fees and in the control list of navigation records, that an invoice had been issued and that the payment had been made by card; a copy of the air routing card having been attached to the relevant documents. 437. Moreover, several witnesses who had worked in Băneasa Airport at the material time and who had made statements in the investigation had identified these flights as having had a technical stop for refuelling at the airport. The vast majority of the witnesses had stated that the “ N ” flights had been serviced by a civil handling agent as any normal flight. Even the witnesses who had noted aspects that would suggest that the US flights had gone through a different procedure had completed their declarations by stating that they had not seen any persons disembarking from these aircraft. It should be stressed that not all the witnesses had serviced the same flights and that, therefore, their declarations should not be seen as contradictory. 438. In contrast to the circumstances surrounding the CIA planes ’ landings as established by the Court in Al Nashiri v. Poland, in Romania there had been no special procedure for receiving the impugned flights. As the documents in the investigation file showed, all the “ N ” flights had gone through the standard procedure. The procedure, as described in the witnesses ’ statements, had been entirely different from what had happened in Szymany in Poland. No foreign vehicles had been seen entering the premises of Băneasa Airport, there had been no military intervention in order to secure the airport perimeter and, most certainly, US officials had not assumed control of the airport on the dates in question. Nor had any HVDs been seen entering the country, as witnesses quoted in the 2007 Marty Report had stated with regard to the aircraft landings in Szymany. 439. As regards the importance attached by the international inquiries, media and experts heard by the Court to changes of flight plans, in the Government ’ s view this by itself could not suggest any involvement of the State in the applicant ’ s detention and ill-treatment. The Government did not deny that the initial flight plans for the N313P flight on 22 September 2003 and the N85VM flight on 12 April 2004 indicating Constanţa as their destination had been changed and the planes had eventually landed at Băneasa Airport in Bucharest. Yet this could not be a proof of any consistent practice of the so-called “ dummy ” flight planning referred to in the Marty 2006 and 2007 Reports and the findings of the Council of Europe ’ s Commissioner for Human Rights. In accordance with the relevant domestic and international regulations, every flight must have a flight plan, except for emergency issues. Each flight plan must indicate, in addition to the plane ’ s destination, an alternative destination. The flight plans had been established by the aircraft ’ s operators. The only potential involvement of the authorities had been limited to their assistance in transmitting the flight plan to the entity managing the integrated initial flight plan processing system. The decision to use the alternative destination or a change in flight plan had been a unilateral action by the flight operator. The acceptance of these changes in the flight plans was not indicative of any complicity of the Romanian authorities since such acceptance had in fact been automatic. 440. Similarly, the alleged STS/STATE indicators for the impugned flights could not be considered meaningful, even though various reports had emphasised their exceptional relevance. According to the applicable rules, that indicator should not automatically qualify for an exemption from any relevant flow regulations. Even Mr J.G.S. they added, although repeatedly asked, could not indicate any special privileges that the STS/STATE designation would entail. (e) Lack of evidence demonstrating that the Romanian authorities entered into “ secret cooperation agreements ” with the CIA and cooperated in the execution of the HVD Programme 441. In the Government ’ s submission, the allegations regarding Romanian ’ s complicity in the HVD Programme, in particular by means of “ secret cooperation agreements ” were completely baseless. No such agreements existed. In that context, the Government referred to the Romanian high-office holders ’ statements, in particular those made by former President of Romania, Ion Iliescu and his former security adviser, Ioan Talpeş in Der Spiegel in 2014 and 2015. Both of them had said that specific agreements had been concluded with the American authorities after 11 September 2001, including the Romanian support at the level of intelligence services – which had actually been very fruitful. This did not mean cooperation in running a secret prison. Furthermore, in the course of the criminal investigation their initially ambiguous statements had later been clarified to the effect that there had been no cooperation and no complicity in the CIA rendition and secret detention operations on the part of Romania. (f) Lack of evidence demonstrating that the Romanian high-office holders agreed to the running of a secret detention facility by the CIA on Romanian territory, provided premises and knew of the purposes of the impugned flights 442. Nor could it be said that the Romanian authorities had otherwise agreed – explicitly or implicitly – to the running of a secret detention facility by the CIA in Romania and that they had made available to them premises for that purpose. These were simply groundless assumptions unsupported by any evidence. Referring again to the statements of Mr Iliescu and Mr Talpeş statements in Der Spiegel, the Government stressed that they had both clearly confirmed that they had had no knowledge of any CIA-run detention facility on Romanian territory. (g) Lack of evidence of Romania ’ s knowledge of the CIA HVD Programme at the material time 443. No evidence had been produced to show the slightest degree of knowledge on the part of the Romanian authorities as to the alleged hidden purpose of the flights landing at and taking off from Romanian airports. As attested by Mr J.G.S. at the fact-finding hearing, only at the beginning of November 2005 had there emerged the first information about the alleged existence in some “ Eastern European countries ” of secret detention facilities designated for suspected terrorists and run by the CIA. Before that time the only information available had concerned the detention facilities in Guantánamo Bay, Afghanistan, Egypt or Jordan and a specific case concerning the surrender of six Algerian men by Bosnian Federal Police into US custody. While information on the setting-up of military commissions for trying persons accused of terrorist acts had been in the public domain, the identities of those persons had been unknown. Nor had it been known what the US authorities ’ decision would be as to which of them would actually be tried before military commissions rather than before federal courts. In sum, at the relevant time, from 2003 to 2005, there had been no information that would have allowed the European States to suspect that some of the US flights that had landed in Europe had been used for the transfer of prisoners. 2. The applicant 444. The applicant maintained that the international inquiries, the CIA declassified documents, the 2014 US Senate Committee Report, other abundant materials compiling most recent research on the operation of the HVD Programme and expert testimony obtained by the Court provided a wealth of compelling evidence supporting his allegations and rejecting the Government ’ s arguments as utterly untenable. In his view, it was established beyond reasonable doubt that Romania had hosted a secret CIA prison in 2003-2005 and that he had been detained in that prison. (a) As regards the existence of a CIA secret detention facility in Romania and the applicant ’ s secret detention in Romania 445. The 2014 US Senate Committee Report and other documentary exhibits before the Court, as well as cogent and credible expert testimony confirmed that the CIA detention site code-named “ Bright Light ” or “ Detention Site Black ” had been located in Romania. The fact that a CIA secret prison had been located in Romania had already been confirmed in the 2007 Marty Report. In the Al Nashiri v. Poland judgment the Court had quoted verbatim from the expert testimony of Senator Marty and Mr J.G.S. stating that there had been a secret CIA detention site in Bucharest. 446. As regards evidence that had emerged after the above judgment, the applicant attached particular importance to the 2014 US Senate Committee Report, adding that it fully confirmed the Court ’ s factual findings in Al Nashiri v. Poland, including those based on expert testimony and documentary evidence. Although the report did not refer to Romania by name, it was established that publicly available information, when cross-referenced with references to Detention Site Black confirmed that this site was “ Bright Light ”, a secret CIA prison that had operated in Bucharest in 2003-2005. For example, the 2014 US Senate Committee Report stated that detainees had begun arriving at Detention Site Black “ in the fall of 2003 ”. It also stated that after publication on 2 November 2005 of the Washington Post article by Dana Priest disclosing that Eastern European countries had hosted CIA “ black sites ”, the country concerned had demanded the closure of Detention Site Black within hours and that the CIA had transferred the remaining CIA detainees out of the facility shortly thereafter. 447. Furthermore, the 2015 LIBE Briefing stated that it had been established beyond reasonable doubt that the CIA had used a facility in Romania to hold prisoners, that the first of them had been transferred to this facility on 22 September 2003 and that the last ones had been transferred out of the facility in November 200 5. 448. Lastly, the applicant relied on expert testimony at the fact-finding hearing. Senator Marty had stated that there had been no shadow of doubt that Romania had participated in the CIA programme. Mr J.G.S. had testified that with the exception of the “ black site ” in Afghanistan, the Romanian “ black site ” had operated for the longest period and held more detainees than any other CIA “ black site ”. Mr J.G.S. and Mr Black had confirmed that the applicant had been secretly detained in Romania. They had also confirmed that the wealth of details about “ Detention Site Black ” in the 2014 US Senate Committee Report all corresponded to details about the Bucharest prison that the CIA code-named “ Bright Light ”, where the applicant had been detained. As such, the report by itself, offered by no less than the United States ’ own Senate Intelligence Committee, based on exhaustive review of US Government documents, rendered untenable the Romanian Government ’ s claim that there was no evidence of a CIA prison on Romanian territory. (b) As regards the alleged inconsistencies in the applicant ’ s account regarding the dates of his rendition to and from Romania and his secret detention in Romania 449. In response to the Government ’ s arguments (see paragraphs 42 6 ‑ 429 above), the applicant said that contrary to their assertions the application had not stated that he had been detained in Romania for the entire period between 6 June 2003 and 6 September 2006. Rather, it stated that he had been detained in Romania for some time during that period. Moreover, after the subsequent disclosure of the dossier submitted by Thomas Hammarberg, the precise date on which the applicant was transferred to a CIA “ black site ” in Romania had become clear – it had been 12 April 2004, on flight N85VM from Guantánamo Bay to Bucharest. 450. The applicant further emphasised that, as regards the location of the secret prison, it had become known only on 8 December 2011 when a news report had identified for the first time the precise location of the CIA prison in Romania, while at the same time confirming the applicant ’ s detention there, and providing details of the ill-treatment of detainees. The report had cited US intelligence officials familiar with the location and inner working of the prison. (c) As regards the planes landing in Romania between 22 September 2003 and 5 November 2005 451. The applicant maintained that it had been established beyond reasonable doubt that planes associated with the CIA rendition operations had landed and taken off from Romania at the material time. The annex to the 2007 Romanian Senate Report listed forty-three flights that had been considered suspicious by the Romanian authorities. 452. The Fava Report had “ [e]xpresse[ d] serious concern about the 21 stopovers made by CIA-operated aircraft at Romanian airports ” which on many occasions had come from or had been bound for countries linked with extraordinary rendition circuits and the transfer of detainees. The list of rendition planes included flight N85VM of 12 April 2004 on which the applicant had been transferred to and from Romania. The Fava Report further noted that a flight with registration number N478GS had suffered an accident on 6 December 2004 when landing in Bucharest. The aircraft had reportedly taken off from Bagram Air Base in Afghanistan, and its seven passengers had disappeared following the accident. The report expressed deep concern “ that Romanian authorities [had] not initiate[d] an official investigation process ... into the case of a passenger on the aircraft Gulfstream N478G5, who [had been] found carrying a Beretta 9 mm Parabellum pistol with ammunition ”. 453. Furthermore, the applicant pointed out that the international inquiries and the experts heard by the Court had identified the rendition flights on which he had been transferred to and from Romania. The finding in Mr Hammarberg ’ s dossier for the Romanian Prosecutor General that the applicant had been transferred to Romania on 12 April 2004 on board N 85VM, a flight clearly and consistently associated with the rendition operations, had been confirmed by multiple reliable sources, including the 2014 US Senate Committee Report and the reconstruction by those experts of the applicant ’ s transfers in CIA custody. 454. As regards his possible transfer from Romania, the experts had given two dates, agreeing on the most probable date, which constituted sufficient evidence. (d) As regards the Government ’ s allegation of a lack of credibility of sources of information and evidence 455. The applicant submitted that the Government ’ s arguments contesting the evidential value of the material before the Court should be rejected in their entirety. In his view, the Government ’ s submissions simply constituted an attempt to discredit the findings of reputable officials like the Council of Europe ’ s Commissioner for Human Rights and Senator Dick Marty, by arguing that these findings were based solely on newspaper articles. In doing so, they failed to take into account the fact that Mr Hammarberg and Senator Marty had engaged in independent investigations and analysis of their own. Indeed, Commissioner Hammarberg ’ s dossier for the Romanian Prosecutor General had expressly drawn on the “ original investigation and the analysis undertaken by [his] Office during the six of years of [his] mandate as Commissioner, among other sources of information ”. Similarly, the 2007 Marty Report had engaged in “ analysis of thousands of international flight records – and a network of sources established in numerous countries ”. Further, as regards the statement in the 2007 Marty Report that Romania had entered into a bilateral agreement with the US authorities, the applicant pointed out that, contrary to the Government ’ s assertion, the fact that Senator Marty had not seen the actual document did not undermine the credibility of his claim that such an agreement had in fact existed, because its existence had been verified by credible sources, some of whom had been directly involved in negotiations that had led to this agreement. The fact that such an agreement had been brokered had recently been corroborated by the 2014 US Senate Committee Report. ( e ) As regards Romania ’ s ’ cooperation with the CIA and its complicity in the HVD Programme 456. For the applicant, there was no doubt that the Romanian authorities had cooperated with the CIA in the HVD Programme. They had granted licences and overflight permissions to facilitate the CIA rendition flights. The AACR ’ s officials had collaborated with Jeppesen (and, by extension, with Jeppesen ’ s client, the CIA) by accepting the task of navigating disguised flights into Romanian airports. 457. As set forth in the 2007 Marty Report, Romania had entered into a bilateral agreement with the United States. The report had named individual office-holders who had known about, authorised and stood accountable for Romania ’ s role in the CIA ’ s operation of secret detention facilities on Romanian territory from 2003 to 2005 as follows: the former President of Romania (up to 20 December 2004), Ion Iliescu; the then President of Romania (20 December 2004 onwards), Traian Băsescu; the Presidential Advisor on National Security (until 20 December 2004). Ioan Talpeş; the Minister of National Defence (ministerial oversight up to 20 December 2004), Ioan Mircea Pascu; and the Head of the Directorate for Military Intelligence, Sergiu Tudor Medar. 458. Romania had therefore participated in the applicant ’ s ill-treatment and incommunicado detention by entering into that agreement and giving the US the “ full extent of permissions and protections it sought ” for conducting secret detention and rendition operations on Romanian territory; issuing an order to Romanian military intelligence services on behalf of the President to provide the CIA with all the facilities they had required and to protect their operations in whichever way they had requested; providing the use of a Romanian Government building for hosting the secret prison where Al Nashiri had been detained; actively assisting the landing, departures and stopovers of secret CIA rendition flights including flights which had transported Al Nashiri in and out of Romania; and failing to disclose the truth and effectively investigate the existence of a secret CIA prison and rendition flights in Romania. 459. Consequently, the applicant ’ s torture and secret detention, as well as his transfer from Romania in the face of real risks of further torture, secret detention and the death penalty could be attributed to the Romanian State because these acts had occurred on Romanian territory with the acquiescence and connivance of the Romanian authorities and because Romania had failed to fulfil its positive obligations to prevent these acts, despite being on notice that they would occur. 460. Lastly, citing Al Nashiri v. Poland the applicant emphasised that in that case the Court had found that CIA rendition operations had “ largely depended on cooperation, assistance and active involvement of the countries which put at the USA ’ s disposal their airspace, airports for the landing of aircraft transporting CIA prisoners and, last but not least, premises on which the prisoners could be securely detained and interrogated ” and that “ the cooperation and various forms of assistance of those authorities, such as for instance customising the premises for the CIA ’ s needs, ensuring security and providing the logistics [had been] the necessary condition for the effective operation of the CIA secret detention facilities ”. This was true with respect to Romania. Just as the Court had found it inconceivable that Poland had not known about the secret detention of prisoners on its territory, it was simply inconceivable that Romania had not known that it had been hosting a secret prison. ( f ) As regards Romania ’ s knowledge of the HVD Programme at the material time 461. The applicant contended that Romania had knowingly, intentionally, and actively collaborated and colluded with the CIA ’ s extraordinary rendition programme, thereby enabling the CIA to subject him to secret detention and ill-treatment in Romania. 462. The Romanian authorities should have known that high-value detainees would be tortured and ill-treated. Their close degree of cooperation with the CIA ’ s secret detention operations in Romania must have put Romanian authorities on notice of the prisoners being at risk of secret detention and ill-treatment. In addition, Romania had had notice of the secret detention, torture and mistreatment of prisoners because of international and Romanian news reports, reports of the UN and human rights organisations and European legal cases that had documented US mistreatment of detainees suspected of terrorism at the material time. The Romanian Government were also presumed to have known of the CIA ’ s secret detention, torture, and ill-treatment of terrorism suspects through its diplomatic missions. 463. As the 2007 Marty Report had concluded, Romania had been “ knowingly complicit in the CIA ’ s secret detention programme ” and senior Romanian officials had “ [ known] about, authorised, and [stood] accountable for Romania ’ s role ” in the CIA ’ s secret detention and rendition operations on Romanian territory ”. 464. Furthermore, the 2014 US Senate Committee Report had confirmed that the Romanian authorities had known that they had been hosting a secret prison and had attempted to cover up this fact. Indeed, the report observed that the Romanian authorities had “ entered into an agreement ” in 2002 with the US to host the prison, and that the US had paid the Romanian authorities “ millions of dollars to host the prison ”. It also confirmed that within hours of The Washington Post reporting in November 2005 that Eastern European countries had hosted secret CIA prisons, the Romanian authorities had insisted on closing the CIA prison on their territory. 465. In the applicant ’ s submission, the evidence before the Court demonstrated that it was the Romanian authorities which had given the CIA permission to run a secret prison in Bucharest, it was the Romanian authorities who had given the CIA permission to use dummy flight plans to secretly land rendition planes carrying prisoners in and out of the country, and it was Romanian authorities who had given the CIA extraordinary security cover for their operations in Romania. As expert J.G.S had said at the fact-finding hearing: “ it [was] quite clear that the Romanian authorities not only should have known but did know of the nature and purpose of the CIA ’ s secret operations on their territory ”. He had also testified that this level of cooperation had depended on authorisation by the highest levels in the Romanian Government. The 2014 US Senate Committee Report had confirmed this. Mr J.G.S and Mr Black had testified that the Romanian authorities had known the nature and purpose of the CIA activities on Romanian territory because the CIA had paid Romania millions of dollars as a subsidy to host the prisoners. Moreover, the 2014 US Senate Committee Report had also established that it had been at the insistence of the Romanian Government that Detention Site Black had been ultimately closed. The Romanian Government had demanded closure of the CIA prison within hours from the publication of the November 2005 Washington Post article disclosing that CIA “ black sites ” had existed in Eastern Europe. This clearly confirmed that for as long as the CIA prison had existed on Romanian territory, it had been there with the Romanian Government ’ s consent. 466. The applicant referred to the Court ’ s finding in Al Nashiri v. Poland (cited above) that by June 2003 it was widely known that the US rendition programme had involved secret detention in overseas locations. It stood to reason that Romania, which had hosted a secret CIA prison after Poland and had enabled the applicant ’ s transfers from its territory well after June 2003, indeed in 2005, had known by then that there had been substantial grounds for believing that the applicant had faced all of these risks. 467. As regards the statements of Mr Iliescu ’ s and Mr Talpeş, the applicant maintained that the Government ’ s submission was yet another example of their consistent refusal to acknowledge the truth about their hosting of a secret CIA prison on Romanian territory. In particular, the Government had quoted selectively from the statement of witness Z, denying that Romania had hosted a secret CIA prison. But a closer look at that statement revealed that Z had actually admitted that the Romanian authorities had supplied a “ location ” to the CIA. 468. In this connection, the applicant further referred to testimony given by witnesses X, Y and Z, saying that their statements expressly conceded that CIA flights had landed in Bucharest. In particular, X had said that Romania had partnership relations with similar institutions from other States, including equivalent structures in the United States of America. He also stated that in the framework of these bilateral relations, civil aircraft hired by the partner services on which their representatives travelled had landed at Bucharest Băneasa Airport. Witness Z had confirmed that US government officials had asked the Romanian authorities to provide some locations on Romania ’ s territory for the deployment of actions meant to fight the dangers of international terrorism and which were to be used by the CIA and that the authorities had “ offer[ed ] a location for CIA activities ” ‘. In his September 2013 statement Z had acknowledged that there had been “ concrete agreements ” that had made possible the operation of the special US flights in Romania and that those flights had not been “ under any obligation to obey usual rules imposed on civil flights ”. Moreover, Y testified that, in the context of Romania ’ s strategic objective of “ NATO and European Union integration ”, it had been possible that CIA offices had been run on Romanian territory. 469. Lastly, the applicant reiterated that all the experts heard by the Court at the fact-finding hearing had stated, in unambiguous terms, that Romania not only ought to have known but must have known and had known of the nature and the purpose of the CIA ’ s secret operations occurring on its territory. B. Joint submissions by Amnesty International ( AI ) and the International Commission of Jurists ( ICJ ) on public knowledge of the US practices in respect of captured terrorist suspects 470. Referring to any knowledge of the US authorities ’ practices in respect of suspected terrorist attributable to any Contracting State to the Convention at the relevant time, AI / ICJ pointed to, among other things, to the following facts that had been a matter of public knowledge. 471. The interveners first emphasised that they had shown in their submissions in El-Masri and Al Nashiri v. Poland (both cited above) that, at least by June 2003, there had been substantial credible evidence in the public domain that in the context of what the USA called the global “ war on terror ”, US forces had been engaging in enforced disappearances, secret detentions, arbitrary detentions, secret detainee transfers, and torture or other ill-treatment. Further, the submissions showed that, by presidential military order, the USA had established military commissions – executive tribunals with the power to hand down death sentences – for the prosecution of selected non-US nationals accused of involvement in terrorism in proceedings that would not comply with international fair trial standards. 472. A February 2004 confidential report of the ICRC on Coalition abuses in Iraq, leaked in 2004 and published in the media at that time, found that detainees labelled by the USA as “ high-value ” were at particular risk of torture and other ill-treatment and “ high value detainees ” had been held for months in a facility at Baghdad International Airport in conditions that violated international law. 473. In its annual reports covering the years 2004 and 2005, distributed widely to governments and the media, AI had reported on the growing body of evidence of human rights violations committed by US forces in the counter- terrorism context and stated that these violations, including secret detention and rendition, were continuing. In addition to individual country entries, the global overview pages of both reports addressed US abuses in the “ war on terror ”. For example, in the report covering 2005 this overview showed how during the year, it had become “ increasingly clear how many countries had colluded or participated in supporting US abusive policies and practices in the ‘ war on terror ’, including torture, ill-treatment secret and unlimited detentions, and unlawful cross-border transfers ”. 474. In June 2004 The Washington Post published a leaked 1 August 2002 memorandum written in the US Department of Justice ’ s Office of Legal Counsel at the request of the CIA. The memo advised, inter alia, that “ under the circumstances of the current war against al Qaeda and its allies ”, presidential authority could override the US anti-torture law, that even if an interrogation method did violate that law “ necessity or self-defense could provide justifications that would eliminate any criminal liability ”, and that there was a “ significant range of acts ” that, while constituting cruel, inhuman or degrading treatment or punishment, “ fail to rise to the level of torture ” and need not be criminalised. 475. In October 2004 AI published a 200 - page long analysis of US violations in the “ war on terror ” and of the US Government documents that had come into the public domain, and including case details of secret transfers of detainees, the alleged existence of secret detention facilities and torture and other ill treatment. 476. In May 2005, AI published a 150-page long report on US abuses in the “ war on terror ”, which included cases of alleged torture or other ill ‑ treatment, deaths in custody, military commission proceedings, rendition flights, and the cases of “ high-value detainees ” allegedly held in CIA custody in secret locations in Afghanistan and elsewhere and being subjected to enforced disappearance. The cases described included those of Tanzanian national Ahmed Khalfan Ghailani and German national Khaled El-Masri. 477. In sum, as the Court held in Al Nashiri v. Poland (cited above), already by June 2003 it had been clear that States had known or should have known about the USA ’ s rendition and secret detention programme and about the grave human rights violations it entailed as well as allegations of torture and other ill-treatment by US personnel, the indefinite detention regime at Guantánamo and the prospect of unfair trials by the military commission. As detailed above, the body of evidence regarding the USA ’ s rendition and secret detention programme had only grown between June 2003 and September 2006. The USA ’ s use of the death penalty remained well-known during this period and the US administration pursued the death penalty from 2002 to 2006 in the high-profile federal prosecution of Zacarias Moussaoui for terrorism offences, as well as moving ahead with a military commission system with the power to hand down death sentences. C. The parties ’ positions on the standard and burden of proof 478. The parties expressed opposing views on the issues concerning the standard and burden of proof to be applied in the present case. 1. The Government 479. The Government once again reiterated that there was no conclusive evidence that the Romanian authorities had in any way participated in the CIA rendition programme by hosting a secret prison for high-value detainees or by any other means. They agreed with the applicant (see paragraph 48 8 below) that the Court had accepted that in its establishment of facts and assessment of evidence the co-existence of sufficiently strong, clear and coherent inferences might be considered a proof. Yet in the applicant ’ s case no such inferences existed. 480. In the Government ’ s view, the applicant had adopted a strategy of persuading the Court that the Romanian authorities, including the intelligence services and army, had shared the responsibility for gross violations of human rights during the so-called “ rendition programme ” based on the idea of, in his view, striking similarities between the present case and El-Masri ( cited above ). However, in order for the Court to shift the burden of proof, the applicant was required to establish a prima facie case in favour of his version of events. In the El-Masri case, that applicant ’ s presence on Macedonian territory at the material time had not been disputed. His detention and interrogation in “ the former Yugoslav Republic of Macedonia ”, together with his surrender to the US authorities, had not been refuted either. In contrast, in the instant case no detention facility had been established with certainty, there was no certainty as to the flights on which the applicant had allegedly been transferred to and from Romania, and the exact period of the applicant ’ s alleged detention in Romania had remained unclear. 481. Furthermore, Mr El-Masri ’ s description of the circumstances of his detention and torture had been, as the Court held, “ very detailed, specific and consistent ”. Conversely, in the present case the Court was confronted with the applicant ’ s incoherent allegations. As opposed to El-Masri, where a significant amount of evidence had corroborated the applicant ’ s allegations and had given rise to concordant inferences, in the present case no evidence had been put forward, save for the reports which relied on one another. It was true that the Court had held in the El-Masri judgment that it might examine a case by “ drawing inferences from the available material and the authorities ’ conduct ” and had concluded that the applicant had prevailed in his claims. Yet in the instant case there was no such material and the authorities ’ conduct had been, if not beyond any criticism, proactive and had demonstrated good faith. Without any intention to attack and discredit the reports of reputable officials or non-governmental organisations, the Government insisted that the truth emerged at the end of a process of gathering evidence, failing which all the allegations remained simple claims. 482. The Government further said that they were fully aware of the Court ’ s standards of proof in cases involving injuries, death or disappearances that occurred in detention in an area within the exclusive control of the authorities of the respondent State, if there was prima facie evidence that the State might be involved. Nevertheless, they contended that a serious explanation, even if not a final one, had already been provided by the Romanian authorities since a serious and independent investigation was still pending before the national authorities. 483. In view of the foregoing, the Government invited the Court to hold that there was no prima facie evidence in favour of the applicant ’ s version of events and that, therefore, the burden of proof could not be shifted. They added, however, that they could not give a final version of the facts since the domestic investigation had not yet been completed. 2. The applicant 484. The applicant maintained that he had adduced strong, clear and concordant facts in support of his claims. In contrast, the Romanian Government had continued to cover up the truth. The Government had an unprecedented advantage over the applicant. They had all the relevant facts in their possession because they had entered into an agreement to host the secret CIA prison, because they had operationalised that agreement, and because they had covered it all up. In contrast, the applicant, still detained at the remote location of Guantánamo Bay, was gagged from speaking of his treatment in Romania. 485. The applicant reiterated that he had established more than a prima facie case that he had been detained and tortured in Romania under the HVD Programme (see paragraphs 40 4 -40 5 above). According to the Court ’ s case-law, the burden of proof now shifted to Romania, particularly because Romania had “ exclusive access to information ” and witnesses who could corroborate or refute the applicant ’ s case. However, the Government had failed to provide any such explanation; instead, they engaged in a pattern and practice of obfuscation and denial with respect to the events complained of. They had done so in the context of unprecedented secrecy maintained by the United States and its partner governments with respect to secret detention and extraordinary rendition operations. 486. Where, as in the present case, the events at issue lay wholly or in large part within the exclusive knowledge of the authorities, the burden of proof could be regarded as resting on the authorities to provide a satisfactory and convincing explanation. Where, as in this case, the authorities had failed to provide a convincing explanation and failed to conduct an effective investigation, despite being on notice, at least since November 2005, of the fact that Romania had hosted a secret CIA prison, the Court was entitled to draw inferences adverse to the authorities. 487. The applicant emphasised that the Court had consistently applied these principles in cases involving injuries, death or disappearances that occurred in detention, including cases where, as here, the Government denied that the individual had been in Government custody at the time of the events at issue. It had also applied these principles where persons had been found dead or injured, or had disappeared, in an area within the exclusive control of the authorities of the State and there had been prima facie evidence that the State might be involved. As the Grand Chamber reiterated in El-Masri, prima facie evidence could itself be provided by proof in the form of concordant inferences, based on which the burden of proof was shifted to the respondent Government. 488. Furthermore, in Al Nashiri v. Poland ( cited above ) the Court had established that it was appropriate to adopt a flexible approach towards the evaluation of evidence. The Court had observed that although it had adopted the “ beyond reasonable doubt ” standard of proof, it also “ adopt[ed] the conclusions that [were], in its view, supported by the free evaluation of all evidence, including such inferences as [might] flow from the facts and the parties submissions ”. Proof could thus “ follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact ”. In addition, in assessing the evidence, the Court had also taken note of the unique set of constraints on the applicant which had precluded him from testifying about his detention before the Court and of “ the very nature and extreme secrecy of the CIA operations in the course of the ‘ war on terror ’ ”. 489. The applicant argued that the same constraints applied in his case against Romania. Indeed, he had been virtually isolated in Guantánamo and unable to talk publicly about his torture and ill-treatment or even submit a statement to the Court because the US authorities had taken the position that his thoughts and memories about his experiences under torture were classified information. Accordingly, they had prohibited him from sharing these experiences with anyone other than his US lawyers, who were prevented from revealing what they had been told by their client on pain of criminal sanction. Despite the extreme secrecy associated with CIA operations and his inability to address the Court directly, the applicant considered that he had submitted ample evidence in support of his factual claims. Indeed, the documentary and expert evidence offered by him and heard by the Court in the present case was, in his view, akin to the evidence that had been given credence by the Court in Al Nashiri v. Poland. D. The Court ’ s assessment of the facts and evidence 1. Applicable principles deriving from the Court ’ s case-law 490. The Court is sensitive to the subsidiary nature of its role and has consistently recognised that it must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case (see Imakayeva v. Russia, no. 7615/02, § 113, ECHR 2006 ‑ XIII (extracts); Aslakhanova and Others v. Russia, nos. 2944/06, 8300/07, 50184/07, 332/08 and 42509/10, § 96, 18 December 2012; El-Masri, cited above, § 154; Al Nashiri v. Poland, cited above, § 393; and Husayn (Abu Zubaydah) v. Poland, cited above, § 393). Nonetheless, in cases where there are conflicting accounts of events, the Court ’ s examination necessarily involves the task of establishing facts on which the parties disagree. In such situations the Court is inevitably confronted when establishing the facts with the same difficulties as those faced by any first-instance court (see El-Masri, cited above, § 151; and Imakayeva, cited above, §§ 111-112). 491. In assessing evidence, the Court has adopted the standard of proof “ beyond reasonable doubt ”. However, it has never been its purpose to borrow the approach of the national legal systems which use that standard. Its role is not to rule on criminal guilt or civil liability but on Contracting States ’ responsibility under the Convention. The specificity of its task under Article 19 of the Convention – to ensure the observance by the Contracting States of their engagement to secure the fundamental rights enshrined in the Convention – conditions its approach to the issues of evidence and proof. In the proceedings before the Court, there are no procedural barriers to the admissibility of evidence or pre-determined formulae for its assessment. It adopts the conclusions that are, in its view, supported by the free evaluation of all evidence, including such inferences as may flow from the facts and the parties ’ submissions. According to the Court ’ s established case-law, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Moreover, the level of persuasion necessary for reaching a particular conclusion and, in this connection, the distribution of the burden of proof, are intrinsically linked to the specificity of the facts, the nature of the allegation made and the Convention right at stake. The Court is also attentive to the seriousness that attaches to a ruling that a Contracting State has violated fundamental rights (see, among other examples, Ireland v. the United Kingdom, 18 January 1978, § 161, Series A no. 25; Nachova and Others v. Bulgaria [GC], nos. 4357 7/98 and 43579/98, § 147, ECHR 2005 ‑ VII; Creangă v. Romania [GC], no. 29226/03, § 88, 23 February 2012; El-Masri, cited above, § 151; Georgia v. Russia (I) [GC], no. 13255/07, §§ 93-94, ECHR 2014 (extracts); Al Nashiri v. Poland, cited above, § 394; Husayn (Abu Zubaydah) v. Poland, cited above, § 394; and Nasr and Ghali, cited above, § 119 ). 492. While it is for the applicant to make a prima facie case and adduce appropriate evidence, if the respondent Government in their response to his allegations fail to disclose crucial documents to enable the Court to establish the facts or otherwise provide a satisfactory and convincing explanation of how the events in question occurred, strong inferences can be drawn (see Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § 184, ECHR 2009, with further references; Kadirova and Others v. Russia, no. 5432/07, § 94, 27 March 2012; Aslakhanova and Others, cited above, § 97; Al Nashiri v. Poland, cited above, § 395; and Husayn (Abu Zubaydah) v. Poland, cited above, § 395 ). 493. Furthermore, the Convention proceedings do not in all cases lend themselves to a strict application of the principle affirmanti incumbit probatio. According to the Court ’ s case-law under Articles 2 and 3 of the Convention, where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, for instance as in the case of persons under their control in custody, strong presumptions of fact will arise in respect of injuries and death occurring during that detention. The burden of proof in such a case may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Çakıcı v. Turkey [GC], no. 23657/94, § 85, ECHR 1999-IV; Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII; and Imakayeva, cited above, §§ 114-115; El-Masri, cited above, § 152; Al Nashiri v. Poland, cited above, § 396; Husayn (Abu Zubaydah) v. Poland, cited above, § 396; and Nasr and Ghali, cited above, § 220). In the absence of such explanation the Court can draw inferences which may be unfavourable for the respondent Government (see El-Masri, cited above, § 152). 2. Preliminary considerations concerning the establishment of the facts and assessment of evidence in the present case 494. The Court has already noted that it is not in a position to receive a direct account of the events complained of from the applicant (see paragraph 1 6 above; also, compare and contrast with other previous cases involving complaints about torture, ill-treatment in custody or unlawful detention, for example, El-Masri, cited above, §§ 16-36 and 156-167; Selmouni v. France [GC], no. 25803/94, § § 13-24, ECHR 1999 ‑ V; Jalloh v. Germany [GC], no. 54810/00, §§ 16-18, ECHR 2006 ‑ IX; and Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, §§ 188-211, ECHR 2004 ‑ VII). 495. The regime applied to high -value detainees such as the applicant is described in detail in the CIA declassified documents, the 2014 US Senate Committee Report and also, on the basis, inter alia, of the applicant ’ s own account, in the 2007 ICRC Report. That regime included transfers of detainees to multiple locations and involved holding them incommunicado in continuous solitary confinement throughout the entire period of their undisclosed detention. The transfers to unknown locations and unpredictable conditions of detention were specifically designed to deepen their sense of disorientation and isolation. The detainees were usually unaware of their exact location (see Al Nashiri v. Poland, cited above, §§ 397-398; Husayn (Abu Zubaydah) v. Poland, cited above, §§ 397-398; and paragraphs 48-58, 85 and 29 3 above ). 496. As held in Al Nashiri v. Poland (cited above, § 399) and as can be seen from the material cited above (see paragraphs 9 8 -140 above), since an unknown date in mid- October 2002 the applicant has not had contact with the outside world, save the ICRC team in October and December 2006, the military commission ’ s members and his US counsel. It has also been submitted that the applicant ’ s communications with the outside world are virtually non-existent and that his communications with his US counsel and his account of experiences in CIA custody are presumptively classified (see paragraph 482 above). 497. The above difficulties involved in gathering and producing evidence in the present case caused by the restrictions on the applicant ’ s contact with the outside world and the extreme secrecy surrounding the US rendition operations have inevitably had an impact on his ability to plead his case before this Court. Indeed, in his application and further written pleadings the events complained of were to a considerable extent reconstructed from threads of information gleaned from numerous public sources. Consequently, the Court ’ s establishment of the facts of the case is to a great extent based on circumstantial evidence, including a large amount of evidence obtained through the international inquiries, considerably redacted documents released by the CIA, the declassified 2014 US Senate Committee Report, other public sources and the testimony of the experts heard by the Court (see also Al Nashiri v. Poland, cited above, § 400, and Husayn (Abu Zubaydah) v. Poland, cited above, § 400 ). 498. It is also to be noted that while the Government have firmly denied the applicant ’ s allegations in so far as they concerned Romania and contested the credibility of various parts of the evidence before the Court, they have not disputed the fact that he was subjected to secret detention and ill-treatment under the HVD Programme. Nor have they disputed his version of the circumstances preceding his alleged rendition to Romania on 12 April 2004 (see paragraphs 395 -402 and 41 9 -44 3 above). However, the facts complained of in the present case are part of a chain of events lasting from mid-October 2002 to 5 September 2006 and concerning various countries. The examination of the case necessarily involves the establishment of links between the dates and periods relevant to the applicant ’ s detention and a sequence of alleged rendition flights to the countries concerned. As a result, the Court ’ s establishment of the facts and assessment of evidence cannot be limited to the events that according to the applicant allegedly took place in Romania but must, in so far as it is necessary and relevant for the findings in the present case, take into account the circumstances occurring before and after his alleged detention in Romania (see Al Nashiri v. Poland, cited above, §§ 401-417, and Husayn (Abu Zubaydah) v. Poland, cited above, §§ 401-419 ). 3. As regards the establishment of the facts and assessment of evidence relevant to the applicant ’ s allegations concerning his transfers and secret detention by the CIA before his rendition to Romania ( mid ‑ October 2002-April 2004) (a) Period from mid-October 2002 to 6 June 2003 499. The Court has already established beyond reasonable doubt the facts concerning the applicant ’ s capture, rendition and secret detention until 6 June 2003, the date of his rendition on plane N379P from Poland to another CIA secret detention facility (see Al Nashiri v. Poland, cited above, §§ 401-417). The relevant passages from Al Nashiri v. Poland containing the Court ’ s findings of fact are cited above (see paragraph 9 8 above). Some additional elements, which are all fully consistent with the Court ’ s establishment of the facts in that case, can also be found in the 2014 US Senate Committee Report (see paragraphs 9 9 - 101 above). (b) Whether the applicant ’ s allegations concerning his secret detention and transfers in CIA custody from 6 June 2003 (transfer out of Poland) to an unspecified two-digit date in April 2004 (transfer out of Guantánamo ) were proved before the Court 500. It is alleged that before being rendered by the CIA on 12 April 2004 from Guantánamo to Romania on board N85VM the applicant had been detained in other CIA secret detention facilities abroad (see paragraphs 11 5 -11 6 above). 501. In Al Nashiri v. Poland ( cited above, § § 408 and 417 ) the Court held as follows: “ 408. In the light of that accumulated evidence, there can be no doubt that: ... 2) the N379P, also known as “ Guantánamo Express ”, a Gulfstream V with capacity for eighteen passengers but usually configured for eight, arrived in Szymany on 5 June 2003 at 01:00 from Kabul, Afghanistan. It stayed on the runway for over two hours and then departed for Rabat, Morocco. ... 417. Assessing all the above facts and evidence as a whole, the Court finds it established beyond reasonable doubt that: ... 4) on 6 June 2003 the applicant was transferred by the CIA from Poland on the CIA rendition aircraft N379P. ” 502. Referring to this point in time, the 2014 US Senate Committee Report states that from June 2003 onwards “ the CIA transferred Al Nashiri to five different CIA detention facilities before he was transferred to US military custody on 5 September 2006 ” (see paragraph 102 above). It further states that in 2003 the CIA arranged for a “ temporary patch ”, which meant placing the applicant and another detainee – Ramzi bin al-Shibh – in a country whose name was redacted and that by an unspecified – redacted – date in 2003 both of them were transferred out of that country to Guantánamo (see paragraph 10 9 above). There can therefore be no doubt that between his transfer from Poland on 6 June 2003 and his transfer to Guantánamo on an unspecified later date in 2003 the applicant was for some time held by the CIA in another country – the first one out of five in which he would be secretly detained between 6 June 2003 and 5 September 2006. 503. Mr J.G.S. testified that the country in question was identifiable as Morocco and that on 6 June 2003 the plane N379P had taken the applicant and Ramzi bin al-Shibh from Poland to Rabat, Morocco to a facility that at that time had been let to the CIA by their Moroccan counterparts. He stated that the applicant had remained there until 23 September 2003, the date on which he had been transported on plane N313P from Rabat to Guantánamo (see paragraphs 10 7 - 10 8 and 1 10 above ). 504. The N313P rendition circuit of 20-24 September 2003 was analysed in detail in Husayn (Abu Zubaydah) v. Poland, where the Court held that on 22 September 2003 Mr Abu Zubaydah had been transferred by the CIA from Poland on board that plane to another CIA secret detention facility elsewhere. It also held that this flight had marked the end of CIA ‑ associated aircraft landings in Poland and the closure of the CIA “ black site ” codenamed “ Quartz ” in that country (see Husayn (Abu Zubaydah) v. Poland, cited above, § § 414 and 419 ). The collation of data from multiple sources shows that the plane left Washington D. C. on 20 September 2003 and undertook a four-day flight circuit during which it landed in six countries. It flew from Rabat to Guantánamo on the night of 23 September 2003, landing there in the morning of 24 September 2003 (see paragraphs 11 1 -11 2, 27 4, 32 6, 33 7, 35 6 and 37 4 above). According to the RCAA letter of 29 July 2009, N379P ’ s itinerary was Szczytno airport in Szymany, Poland - Constanţa - Rabat but the airport at which it landed in Romania was Băneasa Airport in Bucharest (see paragraphs 113 and 326 above). This information is consistent with evidence heard from Mr J.G.S., who in Husayn (Abu Zubaydah) v. Poland testified that “ this particular flight circuit was again disguised by dummy flight planning although significantly not in respect of Poland ” and that “ since this visit to Szymany was comprised solely of a pick-up of the remaining detainees, the CIA declared Szymany as a destination openly and instead disguised its onward destinations of Bucharest and Rabat, hence demonstrating that the methodology of disguised flight planning continued for the second European site in Bucharest, Romania ” (see Husayn (Abu Zubaydah) v. Poland, cited above, § 312; and paragraph 11 2 above). 505. The 2014 US Senate Committee Report confirms that “ beginning in September 2003 ” the CIA held its detainees at CIA facilities in Guantánamo and that by a – redacted but clearly two -digit – date in April 2004 “ all five CIA detainees were transferred from Guantánamo to other CIA detention facilities ” pending the US Supreme Court ’ s ruling in Rasul v. Bush which, as the US authorities expected, “ might grant habeas corpus rights to the five CIA detainees ”. The transfer was preceded by consultations among the US authorities in February 2004. It was recommended by the US Department of Justice (see paragraphs 6 2 and 11 4 above). 506. In the light of the material in its possession, the Court finds no counter evidence capable of casting doubt on the accuracy of the expert ’ s conclusions regarding the above sequence of events, the places of the applicant ’ s secret detention and the dates of his transfers during the relevant period. 507. Accordingly, the Court finds it established beyond reasonable doubt that: (1) on 6 June 2003 on board the rendition plane N379P the applicant was transferred by the CIA from Szymany, Poland to Rabat, Morocco; (2) from 6 June to 23 September 2003 the applicant was detained in Morocco at a facility used by the CIA; (3) on 23 September 2003 on board the rendition plane N313P the applicant was transferred by the CIA from Rabat to Guantánamo; and (4) the applicant was detained in Guantánamo until a two-digit date in April 2004 (redacted in the 2014 US Senate Committee Report), then transferred by the CIA to another detention facility elsewhere. 4. As regards the establishments of the facts and assessment of evidence relevant to the applicant ’ s allegations concerning his rendition by the CIA to Romania, secret detention in Romania and transfer by the CIA out of Romania (12 April 2004 to 6 October or 5 November 2005) (a) Whether a CIA detention facility existed in Romania at the time alleged by the applicant ( 22 September 2003 – beginning of November 2005) 508. It is alleged that a CIA secret detention facility operated in Romania from 2 2 September 2003 to the first days of November 2005, when it was closed following the publication of Dana Priest ’ s report on CIA overseas clandestine prisons in Eastern Europe in The Washington Post on 2 November 2005 (see, in particular, paragraphs 44 5-448 above). The Government denied that a CIA detention facility had ever existed on Romania ’ s territory (see, in particular, paragraphs 4 20 - 42 5 above). 509. The Court notes at the outset that the following facts are either uncontested or have been confirmed by the Court ’ s findings in Husayn ( Abu Zubaydah ) v. Poland and flight data from numerous sources, including the documents produced by the respondent Government: ( a) On 22 September 2003 plane N313P arrived in Szymany, Poland en route from Kabul, left on the same day for Romania and, having indicated in its flight plan Constanţa as its destination, in fact landed at Bucharest Băneasa Airport. On 23 September 2003 the plane took off from Bucharest for Rabat (see Husayn (Abu Zubaydah) v. Poland, cited above, §§ 408 and 419; and paragraphs 11 2 -11 3, 32 6 and 50 4 above). ( b) On 5 November 2005 plane N1HC, having indicated in its flight plan Mihail Kogălniceanu International Airport in Constanţa as its destination, in fact landed at Băneasa Airport in Bucharest and on the same day took off from Bucharest for Amman. ( c) On 5 November 2005 plane N2 4 8AB arrived in Amman at 23:49 and on 6 November 2005, on the same night, left for Kabul; ( d) On the same night of 5-6 November 2005 both N1HC and N248AB were in the same airport in Amman between 00:21 (N1HC ’ s landing) and 00:55 ( N248AB ’ s departure) (see paragraph 13 5 above). 510. It has not been disputed by the Government that the Washington Post publication was the first one in which East European countries were mentioned in the context of the HVD Programme (see paragraphs 23 6 and 4 21 above). It was followed by subsequent, more specific reports. On 6 November 2005 Human Rights Watch, in the 2005 HRW Statement, indicated Poland and Romania as the CIA accomplices in the HVD Programme (see paragraphs 22 6 -22 7 above). That statement was followed by the HRW List of 30 November 2005 which referred to “ ghost prisoners ”, including the applicant, considered to be possibly held in secret detention by the CIA (see paragraph 22 8 above). A few days later, on 5 December 2005, an ABC News report named Poland and Romania as countries hosting CIA secret prisons and listed the names of eleven top al - Qaeda terrorist suspects, including the applicant, being held in CIA custody. It also stated that, according to the CIA sources, the US authorities had “ scrambled to get all the suspects off the European soil before Secretary of State Condoleezza Rice arrived there today ” (see paragraph 23 7 above). 511. Nor has it been disputed that the above disclosures soon triggered a number of international inquiries into the CIA rendition and secret detention operations and allegations of torture and ill-treatment of prisoners. The multiple investigations by international governmental organisations started with the Council of Europe ’ s inquiry under Article 52 of the Convention and the Marty Inquiry, followed by the European Parliament ’ s Fava Inquiry, the 2010 UN Joint Study and the investigative work of the Council of Europe ’ s Commissioner for Human Rights carried out until 2012. Also, in that context, the ICRC independently prepared its earlier, confidential reports and the 2007 ICRC Report (see paragraphs 24 6 - 2 80, 2 90 and 29 4 ‑ 29 6 above). As a follow-up to the Fava Report, the European Parliament LIBE Committee still continues to investigate the issue of the CIA secret prisons in Europe (see paragraphs 28 2 -2 90 above). 512. The initial 2006-2007 reports drawn up in the framework of the inquiries conducted by the international governmental organisations confirmed consistently, albeit in various terms, that there was at least a strong suspicion that a CIA clandestine detention site had operated in Romania. (a) The 2006 Marty Report stated that, while the factual elements gathered so far had not provided definitive evidence of secret detention centres, Romania was “ thus far the only Council of Europe member state to be located on one of the rendition circuits ” which bore “ all the characteristics of a detainee drop-off point ”. The rendition circuit in question was executed on 25 January 2004 by plane N313P which, before landing in Romania, on 23 January 2004 rendered Mr El-Masri from Skopje to the CIA ” black site ” in Kabul (see paragraphs 25 3 and 32 7 -3 30 above and El Masri, cited above, §§ 21 and 157-158). (b) The 2007 Marty Report affirmed that there was “ now enough evidence to state that secret detention facilities run by the CIA [had ] existed in Europe from 2003 to 2005, in particular in Poland and Romania ” (see paragraph 25 8 above). It stated that “ Romania [had been] developed into a site in which more detainees were transferred only as the HVD Programme [had] expanded ”. It was Senator Marty ’ s understanding that “ the Romanian “ black site ” [had been] incorporated into the programme in 2003, attained its greatest significance in 2004 and operated until the second half of 2005 ” (see paragraph 2 61 above). The report also referred to the “ clear inconsistencies in the flight data ” provided by various Romanian sources, when compared with data gathered by the Marty Inquiry independently. The disagreement between these sources was found to be “ too fundamental and widespread to be explained away by simple administrative glitches, or even by in-flight changes of destinations by Pilots-in-Command, which were communicated to one authority but not to another ”. In sum, the report stated that “ presently there exist[ed] no truthful account of detainee transfer flights to Romania ” (see paragraph 26 4 above). Senator Marty in the 2006 and 2007 Marty Reports, as well as in his affidavit of 24 April 2013 and testimony given at the fact-finding hearing before the Court explained comprehensively the methodology adopted in his inquiry and the sources of information on the basis of which the respective findings had been made (see paragraphs 25 8, 26 2, 35 4 and 37 9 above). (c) The Fava Report expressed “ serious concern ” about twenty-one stopovers made by the CIA-operated aircraft at Romanian airports, which on most occasions had come from or been bound for countries linked with extraordinary rendition circuits. It was also found that five flight plans had been filed with inconsistencies as they had indicated a landing airport which had not corresponded with the subsequent take -off airport (see paragraphs 2 71 and 27 4 above). Moreover, the Fava Report identified three aircraft with multiple stopovers in Romania that already at that early stage of the inquiries into the HVD Programme had been known to have been involved in the CIA rendition operations. Among those aircraft was N85VM, conclusively identified as having been used for the rendition of Mr Osama Mustafa Nasr aka Abu Omar from Germany to Egypt on 17 February 2003 (see also Nasr and Ghali, cited above, §§ 39, 112 and 231) and N313P conclusively identified as having been used for the rendition of Mr El-Masri from Skopje to Kabul on 23 January 2004 (see El-Masri, cited above, §§ 67 and 157-159). The report also listed flights from suspicious locations that stopped over in Romania in 2003-2005. The first flight N313P, from Szymany, Poland to Bucharest, en route to Rabat, took place on 22 September 2003, the last one, N1HC, from Bucharest to Amman, took place on 5 November 2005 (see paragraphs 2 71, 273 and 27 6 above). The conclusion in the Fava Report was that it could not exclude, “ based only on the statements made by Romanian authorities to the Temporary Committee delegation to Romania, the possibility that US secret services [had] operated in Romania and that no definite evidence ha[d] been provided to contradict any of the allegations concerning the running of a secret detention facility on Romanian soil ” (see paragraphs 2 71 and 2 80 above). With reference to that conclusion, Mr Fava testified at the fact-finding hearing that “ the conclusion we reached was a very strong suspicion that [a CIA detention facility] existed, not certainty – there was no smoking gun ” (see paragraph 36 3 above). The Fava Report relied on comprehensive materials from multiple sources, comprising those collected during the TDIP delegation ’ s visits to the countries concerned, including Romania, extensive flight data, expert evidence, analysis of specific cases of several victims of the CIA extraordinary rendition, interviews with the victims and their lawyers and material acquired in the context of meetings with the national authorities (see paragraphs 268 -27 3 above). 513. The 2010 UN Study, referring to Romania, mentioned that the analysis of complex aeronautical data had demonstrated the circuit flown by N313P in September 2003 and that the experts had not been able to identify “ any definite evidence of a detainee transfer into Romania ” taking place prior to that flight (see paragraph 29 6 above). 514. Subsequent reports, which were based on fuller knowledge of the HVD Programme emerging from the CIA documents declassified in 2009 and 2010 and took into account progress in the research into rendition flights, contained more categorical conclusions. (a) Mr Hammarberg, in his dossier of 30 March 2012 addressed to the Romanian Prosecutor General, stated that “ sufficient evidence ha[d] now been amassed to allow us to consider the existence of a CIA ” black site ” in Romania as a proven fact, and to affirm that serious human rights abuses [had taken] place there ”. According to Mr Hammarberg ’ s findings, the opening of the CIA prison, codenamed “ Bright Light ” and the start of the CIA detention operations in Bucharest was marked by the plane N313P landing in Bucharest on the night of 22 September 2003. The physical location was identified as the ORNISS building in Bucharest. The dossier included, in chronological order, a list of eight disguised rendition flights into Bucharest in respect of which “ dummy ” flight plans featuring Constanţa or Timișoara had been filed, starting from the N313P flight on 22 September 2003 and ending with the N860JB flight on 21 August 2005. No specific date of closure of the detention site was given; paragraph 18 of the dossier indicated that it had operated for “ a period of at least one year ” (see paragraphs 33 4 -33 9 ). In response to the Court ’ s question regarding this point, Mr Hammarberg explained that at that time their research had not managed to establish the precise dates for the closure of the Romanian “ black site ” nor for the applicant ’ s transfer from Romania (see paragraph 34 6 above). Mr Hammarberg, in his written response to the Court ’ s questions, gave an account of the sources and methodology on which he relied in his findings. The conclusions as to the operation of a secret CIA ” black site ” in Romania were based on “ a number of different sources which were cross ‑ referenced and not on one piece of evidence in isolation ”. This included among other things, official US documents, flight records and aeronautical data amassed from diverse entities across the global aviation sector (see paragraph 34 5 above). (b) The 2015 LIBE Briefing, which in addition to extensive flight data had been based on an analysis of a large amount of new material disclosed in the 2014 US Senate Committee Report, stated that it had been established beyond reasonable doubt that a facility in Romania had been used by the CIA to hold prisoners, that the first prisoners had been transferred to this facility in September 2003 and that the last prisoners had been transferred out of this facility in November 2005. The dossier included a list of fifteen rendition circuits through Romania, the first of which was executed by N313P on 22-23 September 2003, the last of which was executed on 5 ‑ 6 November 2005 and involved two planes N1HC (from Romania to Jordan) and N248AB (from Jordan to Afghanistan) (see paragraphs 35 5 -35 8 above). 515. Furthermore, in Husayn (Abu Zubaydah) v. Poland Senator Marty and Mr J.G.S., referring in their PowerPoint presentation to the “ final rendition circuit ” through Poland executed by N313P, testified that this particular circuit had marked the closure of the CIA ” black site ” in Poland and the opening of the CIA ’ s second secret detention site in Europe – located in Romania (see Husayn (Abu Zubaydah) v. Poland, cited above, § § 31 2 and 414; Al Nashiri v. Poland, cited above, § 414; and paragraph 11 2 above). 516. At the fact-finding hearing held in the present case the experts heard by the Court confirmed in clear and categorical terms that a secret detention facility had operated in Romania in the period indicated by the applicant. They stated that the N313P flight on 22-23 September 2003 had marked the opening of the site and that a “ double - plane switch ” circuit involving two planes, identified as N1HC and N248AB had indicated its closure, prompted by the publication of the Washington Post article referred to above (see paragraph 50 8 above). In the same categorical terms they identified the CIA detention facility located in Romania as the one referred to in the 2014 US Senate Committee Report as “ Detention Site Black ” (see also paragraphs 160 -164 above). (a) Senator Marty and Mr J.G.S in their PowerPoint presentation, in support of the above conclusions, referred to the extensive flight data and their correlation, as well as to the 2014 US Senate Committee Report. In particular, Mr J.G.S. in connection with several specific references in that report stated that the code name “ Detention Site Black ” in the report corresponded in such “ precise and extensive detail ” to other multiple data concerning Romania that “ Romania, its territory, its airspace, its detention facility, [was] inseparable from Detention Site Black (see paragraphs 13 1, 3 71, 374-376 above) (b) Mr Black stated that it was “ clear, beyond reasonable doubt that there was a CIA detention facility in Romania ” and that he was convinced on “ a wide array of different types of evidence ” that it operated from September 2003 until November 2005. He testified that there was no doubt that the flight in November 2005 – which had been a two-plane switch taking prisoners to Afghanistan – had signalled the end of the Romanian site and that that flight had come within 72 hours after the existence of the site had been revealed in the Washington Post article. He added that the 2014 US Senate Committee Report was very clear that at that point everyone who had been remaining in Romania had been “ shipped out to Afghanistan ” (see paragraphs 132 and 390 above). In his testimony, he also mentioned specific HVDs, including the applicant, who had been detained in Romania between September 2003 and 2005, saying that “ the fact that those individuals [had been] held in Romania at various points between 2003 and 2005 [was] absolutely beyond reasonable doubt, there [could not] be any alternative narrative to that that [made] any sense ”. He further stated that “ Detention Site Black [was] the site that fulfil[ed], in terms of its operating times, the flight paths that we [knew] to have been connected to prisoner movements and to the CIA rendition programme. Detention Site Black [was] the one which correlate[d] precisely with those flight paths that our research [had] discovered, [had] reconstructed ” (see paragraphs 3 90 and 39 2 above). 517. The 2014 US Senate Committee Report includes several references to Detention Site Black. To begin with, the report confirms that CIA detainees were transferred to Detention Site Black in a country whose name was redacted “ in the fall of 2003 ”. It further confirms that the site still operated in “ the fall of 2004 ”, as well as in April and May 2005 (see paragraphs 1 60-164 above) and that Mr Al Nashiri was held there in October 2004 and June and July 2005 (see paragraphs 127, 15 8 and 16 2 -16 3 above). Finally, it indicates that Detention Site Black was closed “ after publication of the Washington Post article ”, following the pressure from the country concerned, which demanded the closure within a number of hours which, although redacted in the text, clearly comprised two digits (see paragraph 13 3 above). 518. The Court observes that this indication in theory could mean any time between 10 and 99 hours. However, in reality, given that the CIA had to secure a safe, secret transfer of possibly several detainees by air to another consenting country, such demand could not be dealt with abruptly and immediately and, by the nature of things, inevitably required some preparation and handling of logistical problems. According to the 2014 US Senate Committee Report, the “ CIA transferred ... the remaining CIA detainees out of the facility shortly thereafter ” (see paragraph 13 3 above). Having regard to the fact that the Washington Post article was published on 2 November 2005, the dates on which the transfer could realistically have been carried out – that is to say, within the range of 24-9 9 hours – had to be situated in the short period from 3 to 6 November 2005. This coincides exactly with the flight identified by the experts as the one marking the closure of “ Detention Site Black ” in Romania, namely N1HC from Bucharest to Amman, executed on 5 November 2005 (see also paragraph 50 9 above). 519. Furthermore, all the materials in the Court ’ s possession, including the list of twenty -one “ suspicious flights ” produced by the Government unambiguously demonstrate that a series of CIA-associated aircraft landings at Bucharest Băneasa Airport started on 22 September 2003 with N313P and ended on 5 November 2005 with N1HC. Markedly, these two particular flight circuits were disguised by the so - called “ dummy flight planning ” – a practice that, as described by the experts and analysed by the Court in its previous judgments concerning the CIA rendition operations in Poland, consisted in filling false flight plans that indicated a route which the planes did not, or even intend to, fly. Both aircraft ’ s flight plans indicated Constanţa as their destination but in fact they landed at and took off from Bucharest Băneasa Airport (see paragraphs 11 2, with references to Husayn (Abu Zubaydah) v. Poland, and 1 30, 13 4 -13 5 and 37 2 -37 3 above; see also Al Nashiri v. Poland, cited above, § § 419- 422 ). 520. The Government acknowledged that on 22-23 September 2003 the flight plan for N313P, initially indicating Constanţa as its destination, had been changed to Bucharest Băneasa Airport when the plane had been en route (see paragraph 43 9 above). However, they did not see how the change of flight plans executed by the flight operator – a change on which the Romanian authorities had no influence – could be indicative of their complicity in the CIA rendition operations or, still less, of the existence of a CIA “ black site ” in Romania (see paragraphs 43 6 -4 40 above ). 521. Addressing the Government ’ s arguments, the Court finds it appropriate to reiterate certain findings concerning the operation of the CIA-associated flights in Romania emerging from the material in the case file. (a) As already noted above (see paragraph 51 2 above), the Fava Report referred to twenty-one stopovers made by the CIA-operated aircraft at Romanian airports during the relevant period. Significantly, most stopovers (thirteen) and take-offs (five) found suspicious took place at Bucharest airports. Several of those flights are included in the Government ’ s list of twenty-one “ suspicious flights ” (see paragraphs 273 and 32 7 above). The Fava Inquiry also identified fourteen different CIA aircraft that landed in Romania at the material time and referred to at least five inconsistent flight plans, concerning, among others, the N1HC flight on 5 November 2005. All these plans indicated destinations filed for Constanţa or Timisoara; however, the aircraft real destination was Bucharest Băneasa Airport, at which those flights in fact landed and from which they took off subsequently (see paragraphs 271-274 and 27 6 above). (b) Mr Hammarberg ’ s dossier for the Romanian Prosecutor General contained a – non-exhaustive – list of the most significant eight flights into Bucharest, starting from N313P on 22 September 2003. Destinations for all of them were disguised by the “ dummy ” flight planning. All bore the characteristics of “ detainee drop-offs ”, i.e. transportation of CIA prisoners into the country. All those planes are on the list of twenty-one “ suspicious flights ” furnished by the Government (see paragraphs 32 7 and 33 7 above). (c) The 2015 LIBE Briefing identified fifteen rendition missions linking Romania to other CIA prison host countries or to known or suspected prisoner transfers. According to that report, the first such mission was executed by N313P on 22 September 2003, the last by N1HC on 5 November 2005 (see paragraphs 35 7 -35 8 and 51 4 above). The list of fifteen rendition missions in the 2015 LIBE Briefing overlaps with the Government ’ s list of twenty -one “ suspicious flights ” ( see paragraphs 32 7 and 35 7 -35 8 above). (d) In all the inquiries conducted by the international governmental and non-governmental organisations, which were extensively referred to above, most planes included in the Government ’ s list have been conclusively and definitely identified as carrying out the CIA rendition missions (see paragraphs 2 50 -26 4; 26 8 -2 90; 29 6; 32 7 -3 30; 33 4 -33 6; and 35 5 -35 8 above). (e) It emerges from the comparison of the list of twenty-one “ suspicious flights ” with the above reports identifying the aircraft associated with the CIA ’ s transportation of prisoners that between 23 September 2003 and 5 November 2005 there was a continued, steady and concentrated flow of those planes through Bucharest Băneasa Airport. According to the material produced by the Government themselves, during that period fifteen CIA flights arrived at Bucharest Băneasa Airport and only two were recorded by the Romanian authorities as landing at Constanţa Mihail Kogălniceanu Airport. The CIA flights into Bucharest arrived at fairly regular intervals of between one and some three months (see paragraphs 32 7 and 35 7 -35 8 above). 522. Considering the material referred to above as a whole, the Court is satisfied that there is prima facie evidence in favour of the applicant ’ s allegation that the CIA secret detention site operated in Romania between 22 September 2003 and the beginning of November 2005. Accordingly, the burden of proof should shift to the respondent Government (see El-Masri, cited above, §§ 154-165, and paragraphs 492- 49 3 above ). 523. However, the Government have failed to demonstrate why the evidence referred to above cannot serve to corroborate the applicant ’ s allegations. Apart from their firm, albeit general, denial that the facts as presented by the applicant and disclosed in the international inquiries – to begin with the Marty Inquiry and Mr Hammarberg ’ s investigative work – never took place or were grossly distorted to Romania ’ s disadvantage, they have not offered any cogent reasons for the series of landings of CIA-associated aircraft at Bucharest between 22 September 2003 and 5 November 2005 (see also Al Nashiri v. Poland, cited above, § 414; and Husayn (Abu Zubaydah) v. Poland, cited above, § 414). Likewise, the Government have not produced any evidence capable of contradicting the findings of the international inquiries and the experts heard by the Court, categorically stating that the aircraft in question were used by the CIA for transportation of prisoners into Romania. Nor have they refuted expert evidence to the effect that the CIA prison referred to in the 2014 US Senate Report as “ Detention Site Black ” was located in Romania (see also and compare with Al Nashiri v. Poland, cited above, §§ 414-415; and Husayn (Abu Zubaydah) v. Poland, cited above, §§ 414-415). 524. In that context, the Court cannot but note that all the international inquiries and other reports challenged by the Government were based on extensive, meticulous work which was done by the experts and politicians of the highest integrity and competence and whose only aim and mission was to reveal the facts and establish the truth about what had occurred in Europe during the CIA rendition operations. Their work was often impeded by the extreme secrecy surrounding the CIA operations, the uncooperative attitude of the national authorities and the lack of access to the necessary information – information which was revealed only gradually, over many years and which still remains incomplete due to the classification of essential documents, in particular the full version of the 2014 US Senate Committee Report. It is worth noting that the inquiries conducted in 2006 ‑ 2007 did not have the benefit of access to the CIA declassified documents, which were released in 2009-2010 (see paragraphs 36 -5 8 above) and which provided an important insight into the fate of specific HVDs, including Mr Al Nashiri, with such details as dates of detainees ’ transfers between the CIA “ black sites ” and interrogation schedules. As regards the Government ’ s challenge to the impartiality and credibility of Reprieve, based on its involvement in ongoing investigations into CIA rendition and secret detention and case work regarding Guantánamo prisoners (see paragraph 43 4 above), the Court finds no ground whatsoever to consider that Reprieve and its experts, who have – as for instance Mr Black – also been involved in the European Parliament ’ s inquiry, lack objectivity in representing the facts concerning the operation of the HVD Programme in Europe and the plight of detainees, including the applicant. In so far as the Government can be seen as impliedly contesting the credibility of evidence from other experts heard at the fact-finding hearing (see paragraphs 39 9 and 4 30 -43 5 above), the Court would wish to underline that Mr Fava, Senator Marty and Mr J.G.S. already gave evidence in Al Nashiri v. Poland and Husayn (Abu Zubaydah ) v. Poland. The Court, in its examination of those cases, relied heavily on their testimonies considering them to be one of the most important parts of the evidence and finding them fully reliable and credible (see Al Nashiri v. Poland, cited above, §§ 404, 415, 434-436 and 441; and Husayn (Abu Zubaydah) v Poland, cited above, §§ 404, 415-416, 426-427, 434- 436, 439-440). Furthermore, in El-Masri the Court considered the expert report from Mr J.G.S. to be “ compelling evidence ” which was duly taken into account in its establishment of the facts in the case (see El-Masri, cited above, §§ 159 and 166). Consequently, in the Court ’ s eyes, there is nothing in the Government ’ s submission that would be capable of shedding the doubt on the integrity and dependability of the experts whose testimony was taken in the present case. 525. The Government also argued that the fact that the sources relied on by the applicant, including the 2007 Marty Report and Mr Hammarberg ’ s dossier, had given different indications as to the exact location of the alleged “ black site ” in Romania deprived his allegations of credibility. Referring in particular to the ORNISS building, they relied on witness R ’ s statements obtained in the investigation denying that this location had, or could ever have been, used for the CIA prison (see paragraphs 32 5 and 42 2 ‑ 42 5 above). The Court does not find these arguments convincing. It is true that the applicant, relying on the press disclosures, indicated the ORNISS building as a probable CIA prison. However, considering the secrecy of the CIA operations it cannot be realistically expected that this kind of indication will be absolutely certain, unless the governments concerned decide to disclose such locations and formally “ officialise ” the information circulating in the public domain. In that regard, the Court would note in passing that the likelihood of the ORNISS building having hosted the CIA facility has also been considered in the inquiry conducted by the European Parliament; however, the Romanian authorities did not enable the LIBE delegation to visit the site during their fact-finding mission in September 2015 (see paragraphs 28 8 -2 90 above). The Court will not speculate on that likelihood. Nor is it necessary for the purposes of its ruling to establish where the CIA facility was exactly located. Given the coherent and unrefuted evidence corroborating the applicant ’ s allegations as to the existence of the CIA “ black site ” in Romania, the fact that he did not state its precise location does not undermine the credibility of his allegations. 526. In view of the foregoing, the Government ’ s objection to the credibility of the evidence and sources relied on by the applicant (see paragraphs 4 30 -43 5 above) cannot be upheld. 527. Consequently, the Court considers the applicant ’ s allegations sufficiently convincing and, having regard to the above evidence from numerous sources corroborating his version, finds it established beyond reasonable doubt that: ( a) a CIA detention facility, codenamed Detention Site Black in the 2014 US Senate Committee Report, was located in Romania; ( b) the facility operated from 22 September 2003 and its opening was marked by flight N313P which took off from Szymany, Poland on 22 September 2003 and, having disguised its destination by indicating Mihail Kogălniceanu International Airport in Constanţa, landed at Bucharest Băneasa Airport on the same day; and ( c) the facility was closed on the Romanian authorities ’ demand and its closure was marked by flight N1HC which took off from Porto, Portugal on 5 November 2005 and, having disguised its destination by indicating Mihail Kogălniceanu International Airport in Constanţa, landed at Bucharest Băneasa Airport and on the same day took off for Amman, Jordan. (b) Whether the applicant ’ s allegations concerning his rendition to Romania, secret detention at the CIA Detention Site Black in Romania and transfer from Romania to another CIA secret detention facility elsewhere (from 12 April 2004 to 6 October 2005 or 5 November 2005) were proved before the Court 528. It is alleged that the applicant was transferred to Romania from Guantánamo on board N85VM on 12 April 2004 and that he was detained at Detention Site Black in Romania, also codenamed “ Bright Light ” or “ Britelite ” until at least 6 October 2005 or, at the latest, until 5 November 2005 (see paragraphs 11 5 -11 6 and 44 5 -4 51 above). The Government firmly contested this (see paragraphs 42 6 -42 9 and 43 6 -43 7 above). (i) Preliminary considerations 529. The Court is mindful that, as regards the applicant ’ s actual presence in Romania, there is no direct evidence that it was the applicant who was transported on board the N 85VM flight from Guantánamo to Bucharest or that he was subsequently transferred from Bucharest to another CIA secret detention facility on 6 October or 5 November 2006, the two possible dates indicated by the experts (see paragraphs 12 9 -13 5 above ). The applicant, who for years on end was held in detention conditions specifically designed to isolate and disorientate a person by transfers to unknown locations, even if he had been allowed to testify before the Court, would not be able to say where he was detained. Nor can it be reasonably expected that he will ever, on his own, be able to identify the places in which he was held. No trace of the applicant can, or will, be found in any official flight or border police records in Romania or in other countries because his presence on the planes and on their territories was, by the very nature of the rendition operations, purposefully not to be recorded. As confirmed by expert J.G.S. in Al Nashiri v. Poland, in the countries concerned the official records showing numbers of passengers and crew arriving and departing on the rendition planes neither included, nor purported to include detainees who were brought into or out of the territory involuntarily, by means of clandestine HVD renditions. Those detainees were never appeared in a record of persons on board filed with any official institution ( see Al Nashiri v. Poland, cited above, §§ 410-411 ). 530. In view of the foregoing, in order to ascertain whether or not it can be concluded that the applicant was detained at Detention Site Black in Romania at the relevant time, the Court will take into account all the facts that have already been found established beyond reasonable doubt (see paragraphs 49 9, 50 7 and 52 7 above) and analyse all other material in its possession, including, in particular, the 2014 US Senate Committee Report and expert evidence reconstructing the chronology of the applicant ’ s rendition and detention in 2003-2005 (see paragraphs 10 2 -1 40, 15 9-164, 16 7 -1 90 and 2 51 -39 3 above). ( ii) Transfers and secret detention 531. The Court observes that the following facts either are not disputed or have also been confirmed by flight data from numerous sources, including the documents produced by the respondent Government : ( a) On 12 April 2004 plane N85VM, having indicated in its flight plans Mihail Kogălniceanu International Airport in Constanţa as its destination, in fact landed in Băneasa Airport in Bucharest and took off from there on the same day (see paragraph 11 8 above); ( b) that on 5 October 2005 plane N308 AB, having indicated in its flight plans Mihail Kogălniceanu International Airport in Constanţa as its destination, in fact landed at Băneasa Airport in Bucharest and took off from Bucharest for Tirana on the same day; ( c) that on 5 October 2005 plane N787WH landed in Tirana at 05:52 and stayed there until 23:44, at which time it departed for Shannon; ( d) that on 5 October 2005 both N308AB and N787WH were in the same airport in Tirana between 22:38 (N308AB ’ s landing) and 23:44 (N787WH ’ s departure); ( e) that on 6 October 2005 N787WH, having indicated in its flight plans Tallinn, Estonia as its destination, in fact landed at Vilnius International Airport in Lithuania (see paragraphs 13 5 and 3 31 above). 532. As regards the rendition circuit of 5-6 November 2005, the Court would reiterate that it has already been established that : - on 5 November 2005 N1HC, having disguised its destination as Constanţa, in fact landed at Bucharest Băneasa Airport and took off from there for Amman, arriving there in the night on 5 November 2005; - N248AB arrived in Amman 6 November 2005, and on the same night, left for Kabul; and - on the same night of 5/6 November 2005 both N1HC and N248AB were in the same airport in Amman between 00:21 and 00:55 (see paragraphs 50 9 and 52 7 above). 533. The Court has also established that after his transfers from Poland to Morocco and from Morocco to Guantánamo the applicant was detained in Guantánamo until an unspecified two-digit date in April 2004 (see paragraph 50 7 above). As noted above, the 2014 US Senate Committee Report states that by that date, “ all five CIA detainees were transferred from Guantánamo to other CIA detention facilities ” (see paragraphs 11 4 and 50 5 above, with further references ). 534. Mr J.G.S., in his testimony, explained that the use of the word “ facilities ” in the plural in the 2014 US Senate Committee Report was significant in the context of the applicant ’ s detention given that, as the very same report established, following his transfer from Poland, he had been held at five different CIA “ black sites ” (see also paragraphs 10 2 and 10 4 ‑ 10 8 above). Mr Al Nashiri could not, therefore, have been transferred from Guantánamo back to Morocco. Mr J.G.S. further explained that at the relevant time there had been two distinct detainee transfers from Guantánamo; the first which had taken some detainees to Rabat on 27 March 2004 and the second which had taken the remaining ones on plane N85VM to Romania, via a stopover in Tenerife, on 12 April 2004. This, he said, was the sole outward flight linking Guantánamo with Romania. Also, it emerged from the 2014 US Senate Committee Report and cables regarding the applicant ’ s treatment that he found himself at Detention Site Black in the third and fourth quarter of 2004 and in July 2005. Mr J.G.S concluded that, in order for the applicant to be at Detention Site Black or “ Britelite ” by that time, he had to have been brought to Romania on flight N85VM on 12 April 20 0 4 (see paragraphs 11 9 -1 20 above ). Moreover, in respect of that flight the CIA had recourse to its systematic practice of disguised flight planning which, as the expert stated, “ in fact became a tell-tale sign of rendition or detainee transfer activity on such flights ” (see paragraph 11 9 above). 535. Mr Black stated that he was aware of two possible flights that could have taken the applicant into Romania and N 85VM was one of them. He indicated that there had been a potential other flight that had occurred in February 2005. While it was known for a fact that the applicant had been in Romania after February 2005 and in June 2005, there were also indications that he had been held in Romania before, in late 2004. That led Mr Black to prefer, of these two possibilities, the 12 April 2004 flight as being the more likely of the two (see paragraph 12 1 above). 536. The Government acknowledged that the flight plan for N85VM, initially indicating Constanţa as its destination, had been changed to Bucharest, Băneasa Airport when the plane had been en route but did not consider that this element could confirm the applicant ’ s secret detention in Romania (see paragraph 437 above). They produced documents issued by the RAS at Băneasa Airport in connection with the N85VM landing on 12 April 2004 (see paragraph 11 8 above). As in respect of other allegedly “ suspicious ” flights, the Government asserted that the flight had been of a “ private and non-commercial nature ” and had not been executed in connection with the HVD Programme (see paragraph 43 6 above). 537. However, this assertion does not seem to be supported by the materials gathered in the present case. To the contrary, the Court finds that in addition to the expert evidence referred to above, there is other abundant evidence to the effect that on 12 April 2004 plane N85VM executed a rendition mission to Romania with the purpose of “ dropping off ” detainees from Guantánamo. In that regard, the Court observes that since at least 2007 the findings of the international inquiries have clearly associated N85VM with the CIA rendition operations (see paragraphs 27 1 - 27 3, 337, 342 and 358 above). As already noted above, N85VM was conclusively identified as the plane used earlier for the rendition of Osama Mustafa Nasr otherwise known as Abu Omar (see paragraph 5 12 above). The former Council of Europe ’ s Commissioner for Human Rights dossier for the Romanian Prosecutor General included that flight among disguised rendition flights into Bucharest, bearing the character of detainee “ drop-off ” (see paragraph 33 7 above). The same dossier listed the applicant among HVDs who had been brought to a CIA “ black site ” in Romania and indicated 12 April 2004 as the date of his transfer to Romania (see paragraph 34 2 above). The 2015 LIBE Briefing indicated flight N85VM on 12 April 2004 among the missions carried out under rendition contracts (see paragraph 35 8 above). That flight is also listed among twenty-one “ suspicious flights ” in the document produced by the Government (see paragraph 32 7 above). 538. As to the applicant ’ s rendition by the CIA from Romania, the experts gave 6 October 2005 and 5 November 2005 as two possible dates of the applicant ’ s transfer (see paragraphs 129-13 2 above). Mr J.G.S described in detail the CIA “ plane-switch ” operation that, according to him, had taken place in the course of the flight circuit on 5 ‑ 6 October 2005 and involved two aircraft: N308AB and N787WH. On this premise, on 5 October 2005 the applicant was taken on board N308AB from Băneasa Bucharest City Airport to Tirana and, subsequently, on board N787WH to Vilnius to a CIA ” black site ” in Lithuania, referred to as “ Detention Site Violet ” in the 2014 US Senate Committee Report (see paragraphs 1 30-131 above). Mr Black considered both dates as probable, with the 6 October 2005 transfer of the applicant being more likely (see paragraph 13 2 above). 539. Having regard to all the various documentary and oral evidence referred to above, the Court is satisfied that there is prima facie evidence in favour of the applicant ’ s version of the events and that the burden of proof should shift to the Government. 540. Yet again in the Court ’ s view the Government have failed to give any convincing grounds to explain why the evidence considered above cannot support the applicant ’ s allegations. They asserted that the applicant ’ s version of events should be rejected as it was incoherent and that in his account of the facts there had been inconsistencies regarding the dates, circumstances and the exact period of his alleged detention in Romania (see paragraphs 42 6 -42 9 above). The Court does not share the Government ’ s assessment. While it is true that, with the passage of time, the applicant adduced newly disclosed facts relevant for his complaints or corrected the dates initially given for his detention (see paragraphs 11 5 -11 6 above), this does not by itself render his version of events inconsistent or incredible. In that context the Court would again refer to the fact that since his capture in mid ‑ October 2002 the applicant has been continually prevented from giving any direct account of his fate even to the counsel representing him before the Court (see paragraphs 494-49 7 above). 541. Furthermore, having regard to the above evidence demonstrating clearly, consistently and conclusively the chronology of the events preceding the applicant ’ s transfer to Romania, his transfer to Romania on 12 April 2004 and his presence at Detention Site Black located in Romania in 2004 and 2005 (see paragraphs 12 6 -12 7, 15 8 and 16 2 -16 3 above and 54 5 below), as well as expert evidence confirming that there were two – and only two – possible dates on which he could be taken by the CIA out of Romania, the Court does not find it indispensable to determine on which specific date the transfer occurred. It is certain and beyond any reasonable doubt that the applicant, once detained at Detention Site Black and, as confirmed by the 2014 US Senate Committee Report and the experts, still present there at least until July 2005, must have been transferred out of it at some later point before or when the site was definitely closed on 5 November 2005 (see paragraph 52 7 above). The experts ’ conclusions are founded on in-depth analysis of extensive international aviation data, contractual documents pertaining to rendition missions executed by the air companies used by the CIA and large amount of data released by the US authorities, including the CIA. On this basis, they gave a time-frame which is sufficiently accurate for the Court to conclude that the applicant must have been taken out of Romania either on 6 October 2005 or on 5 November 2005 to one of the – at the time two – remaining CIA detention facilities, referred to in the 2014 US Senate Committee Report as Detention Site Violet and Detention Site Brown. 542. Accordingly, the Court finds it established beyond reasonable doubt that: ( a) On 12 April 2004 the applicant was transferred by the CIA from Guantánamo to Romania on board N85VM. ( b) From 12 April 2004 to 6 October 2005 or, at the latest, 5 November 2005, the applicant was detained in the CIA detention facility in Romania code - named “ Detention Site Black ” according to the 2014 US Senate Committee Report. ( c) On 6 October 2005 on board N308AB or, at the latest, on 5 November 2005, on board N1HC via a double-plane switch the applicant was transferred by the CIA out of Romania to one of the two remaining CIA detention facilities, code - named Detention Site Violet and Detention Site Brown according to the 2014 US Senate Committee Report. ( iii ) The applicant ’ s treatment in CIA custody in Romania 543. It is alleged that during his secret detention in Romania the applicant was subjected to torture and other forms of treatment prohibited by Article 3 of the Convention. The Government have not addressed this issue. 544. The Court observes that, in contrast to Al Nashiri v. Poland where the treatment to which the applicant was subjected by the CIA during his detention in Poland could be established with certainty owing to the CIA ’ s declassified materials depicting in graphic detail the torture inflicted on him in the course of the interrogations (see Al Nashiri v. Poland, cited above, § § 416 and 514-516 ), in the present case there is no evidence demonstrating that at Detention Site Black in Romania he was subjected to EITs in connection with interrogations (see paragraphs 4 8 -5 5 above ). 545. As regards recourse to harsh interrogation techniques at the relevant time, the 2014 US Senate Committee Report mentions in general terms that in mid-2004 the CIA temporarily suspended the use of the EITs. While their use was at some point resumed and they were apparently applied throughout the most part of 2005, such techniques were again temporarily suspended in late 2005 and in 2006 ( see paragraph 9 4 above). In respect of the applicant, the report states that in the “ final years ” of his detention “ most of the intelligence requirements for Al Nashiri involved showing [him] photographs ”. Those “ debriefings ” were suspended in June 2005 apparently because of the low value of intelligence obtained from him and “ because debriefings often were the ‘ catalyst ’ for his outbursts ” (see paragraphs 12 6 -12 7 above). Other heavily redacted passages in the report speak of “ feeding him rectally ”, which resulted from his “ short-lived hunger strike ” at some unspecified time in 2004. It is also mentioned that in October 2004 he underwent a psychological assessment in the context of “ management challenges ” posed to the CIA by psychological problems experienced by the detainees “ who had been held in austere conditions and in solitary confinement ”. The applicant ’ s assessment was used by the CIA in discussions on “ establishing an endgame ” for the HVD Programme (see paragraphs 12 6, 15 8 and 16 2 -16 3 above). In July 2005 the CIA expressed concern regarding the applicant ’ s “ continued state of depression and uncooperative attitude ”. Days later a psychologist established that the applicant was “ on the verge of a breakdown ” (see paragraph 15 8 above). 546. According to the experts, even though the applicant was in all likelihood no longer interrogated with the use of the EITs, he did, as Mr J.G.S. stated “ purely by virtue of the conditions in which he [had been] held ” suffer ill-treatment (see paragraph 12 4 above). Mr Black added that it was clear that the applicant, in particular when he had been in Romania, was experiencing serious psychological problems as a result of the treatment he had received (see paragraph 12 5 above). 547. As regards the Court ’ s establishment of the facts of the case, the detailed rules governing the conditions in which the CIA kept its prisoners leave no room for speculation as to the basic aspects of the situation in which the applicant found himself from 12 April 2004 to 6 October 2005 or 5 November 2005. The Court therefore finds it established beyond any reasonable doubt that the applicant was kept – as any other high-value detainee – in conditions described in the DCI Confinement Guidelines, which applied from the end of January 2003 to September 2006 to all CIA detainees (see paragraphs 5 6 -5 8 above; see also Husayn (Abu Zubaydah) v. Poland, cited above, §§ 418-419 and 510). While at this stage it is premature to characterise the treatment to which the applicant was subjected during his detention at Detention Site Black for the purposes of his complaint under the substantive limb of Article 3 of the Convention, the Court observes that the regime included at least “ six standard conditions of confinement ”. That meant blindfolding or hooding the detainees, designed to disorient them and keep from learning their location or the layout of the detention facility; removal of hair upon arrival at the site; incommunicado, solitary confinement; continuous noise of high and varying intensity played at all times; continuous light such that each cell was illuminated to about the same brightness as an office; and use of leg shackles in all aspects of detainee management and movement (see paragraph 5 6 -5 8 above). 5. As regards the establishment of the facts and assessment of evidence relevant to the applicant ’ s allegations concerning Romania ’ s knowledge of and complicity in the CIA HVD Programme (a) Relations of cooperation between the Romanian authorities and the CIA, including an agreement to host a detention facility, request for and acceptance of a “ subsidy ” from the CIA, provision of premises for the CIA and acquaintance with some elements of the HVD Programme ( i ) Agreement to host a CIA detention facility, request for and acceptance of a “ subsidy ” from the CIA and provision of premises for the CIA 548. The 2014 US Senate Committee Report, in the chapter giving details as to the establishment of Detention Site Black, states that in an unspecified month ( redacted the text ) in 2002 the CIA “ entered into an agreement ” with the country concerned “ to host a CIA detention facility ”. While the terms of that agreement have not been disclosed, it appears from subsequent passages that, in order to demonstrate to the country ’ s authority ( or person ) whose name was redacted and to “ the highest levels of the Country ... government ” that the US authorities “ deeply appreciate[d] their cooperation and support for the detention program ”, the CIA station in the country was invited by their Headquarters “ to identify ways to support the ” – again redacted – country ’ s bodies ( presumably, or activities ) by financial means, defined as a “ subsidy ” (see paragraph 16 1 above). 549. The requested subsidy which was received in appreciation of “ cooperation and support ” amounted to a sum (redacted in the text) that was a multiple of USD million; in fact, the amount which was initially put on – in the report ’ s words – “ wish list ” presented on behalf of the country by the CIA station was later increased by a further ( redacted ) multiple of USD million ( see paragraph 16 1 above ). The fact that such financial rewards were, as a matter of the general policy and practice, offered to the authorities of countries hosting CIA “ black sites ” is also confirmed in Conclusion 20 of the 2014 US Senate Committee Report. The conclusion states that “ to encourage governments to clandestinely host CIA detention sites, or to increase support for existing sites, the CIA provided millions of dollars in cash payments to foreign government officials ” and that “ the CIA Headquarters encouraged CIA Stations to construct “ wish lists ” of proposed financial assistance ” and “ to ‘ think big ’ in terms of that assistance ” (see paragraph 9 7 above). 550. In that context, the Court would also wish to refer to its findings regarding the national authorities ’ knowledge of the CIA HVD Programme in Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland and the issue of the alleged existence of a bilateral agreement between Poland and the USA on the setting up and running of a secret CIA prison. In that case, the Court did not find it necessary for its examination of the case to establish whether such agreement or agreements existed and if so, in what format or what was specifically provided therein. It did, however, consider it inconceivable that the rendition aircraft could have crossed Polish airspace, landed at and departed from a Polish airport and that the CIA could have occupied the premises in Poland without some kind of pre-existing arrangement enabling the CIA operation in Poland to be first prepared and then executed (see Al Nashiri v. Poland, cited above, §§ 423-428; and Husayn (Abu Zubaydah) v. Poland, cited above, §§ 425-430 ). The same conclusion is valid in respect of Romania; moreover, in the present case it has been reinforced by evidence from the 2014 US Senate Committee Report, unambiguously demonstrating the existence of a bilateral agreement between Romania and the USA on hosting Detention Site Black on Romanian territory. 551. The Court would also add that the above- cited sections of the 2014 US Senate Committee Report further support the conclusions of the 2007 Marty Report, stating that “ the key arrangements for CIA clandestine operations in Europe were secured on a bilateral level ”, that “ the CIA brokered ‘ operating agreements ’ with the Governments of Poland and Romania to hold its high-value detainees ... in secret detention facilities on their respective territories ” and that “ Poland and Romania agreed to provide the premises in which these facilities were established, the highest degrees of physical security and secrecy, and steadfast guarantees of non-interference ” (see paragraph 2 60 above; see also Al Nashiri v. Poland, cited above, §§ 423-428; and Husayn (Abu Zubaydah) v. Poland, cited above, §§ 425-430). In his affidavit made several years later, on 24 April 2013, Senator Marty stated that his “ convictions regarding Romania ’ s participation in the CIA ’ s HVD Programme were unambiguous and unwavering ”, adding that “ up to the present day, I stand by every one of the factual findings I delivered in my 2006 and 2007 PACE Reports ” and that his “ certitude that a CIA ‘ black site ’ existed in Romania [had] only increased since that time ” (see paragraph 35 4 above). At the fact-finding hearing he added that, based on “ extremely precise testimony ” obtained in the course of his inquiry, the Romanian officials “ must have known that the CIA used their territory for transfers of prisoners in the context of the war on terror ” (see paragraph 3 80 above) 552. In that regard, the Court notes that the 2007 Marty Report listed by name several individual high- office holders who “ knew about, authorised and stand accountable for Romania ’ s role in the CIA ’ s operation of ‘ out ‑ of ‑ theatre ’ secret detention facilities on Romanian territory, from 2003 to 2005 ” (see paragraph 26 2 above). Two of those identified in the report, namely former President of Romania, Ion Iliescu and his former Advisor on National Security, Ioan Talpeş several years later made public statements relating to the CIA rendition operation in their interviews given to Spiegel Online in 2014 and 2015 (see paragraphs 24 4 and 24 5 above). 553. In December 2014, in the first Spiegel Online publication, Mr Talpeş was reported as saying that “ there were one or two locations in Romania at which the CIA probably held persons who were subjected to inhuman treatment ”. It was further reported that “ had, from 2003 onwards, continued discussions with officials of the CIA and the US military about a more intense cooperation ” and that in that context “ it was agreed that the CIA could carry out its own activities in certain locations ”. He did not know where they were and “ Romania was, expressly, not interested in what the CIA was doing there ”. Mr Talpeş also told Spiegel Online that in 2003 and 2004 he had informed President Iliescu that the CIA had carried out “ certain activities ” on Romanian territory; at that time “ he did not think that the CIA could possibly torture captives ” (see paragraph 24 4 above). 554. In April 2015, in the second Spiegel Online publication, Mr Iliescu was reported as stating that “ around the turn of the year 2002-2003, our allies asked us for a site ” and that he, as Head of State, had in principle granted that request but the details had been taken care of by Mr Talpeş. He added that “ we [had not interfered] with the activities of the USA on this site ”. Spiegel Online further reported that Mr Talpeş had confirmed Mr Iliescu ’ s statements, adding that at the turn of 2002-2003 he had received a request from a representative of the CIA in Romania for premises, which the CIA needed for its own activities. He had arranged for a building in Bucharest to be given to the CIA. The building was used by the CIA from 2003 to 2006 and no longer existed; Mr Talpeş would not reveal its location (see paragraph 24 5 above). 555. In that context, it is also to be noted that the 2016 EP Resolution states that Mr Talpeş “ admitted on record to the European Parliament delegation that he had been fully aware of the CIA ’ s presence on Romanian territory, acknowledging that he had given permission to ‘ lease ’ a government building to the CIA ” ( see paragraph 2 90 above). 556. Referring to Mr Iliescu ’ s and Mr Talpeş ’ interviews in Spiegel Online, the Government argued that subsequently their initially ambiguous statements had been clarified to the effect that there had been no cooperation and no complicity in the CIA rendition and secret detention operations on the part of Romania. In that regard, the Government also relied on evidence from witnesses obtained in the criminal investigation conducted in Romania (see paragraphs 4 41 - 44 2 above). 557. The Court does not share this assessment. It is true that certain Romanian officials, for instance Y and Z, who testified in the investigation in May and June 2015, denied receiving any such request or having any knowledge of the existence of the CIA prisons in the country (see paragraphs 300 -30 2 above). Yet in that regard the Court cannot but note that witness Z in his testimony given on 18 June 2015 nevertheless confirmed that “ USA Government officials [had] asked the Romanian authorities to offer some locations on Romanian territory to be used for actions of combating the international terrorist threats by the representatives of the CIA, on the same pattern as that used in the other NATO Member States ” and that “ finally one single location [had been ] offered ”. It was understood “ at that stage, in 2003, that it should be an office building in Bucharest ” (see paragraph 30 2 above). 558. The accounts given by Mr Talpeş and Mr Iliescu to Spiegel Online in their interviews and Mr Talpeş ’ admission to the European Parliament ’ s delegation match the disclosures in the 2014 US Senate Committee Report, in particular regarding the date of the agreement to host a CIA secret detention site (2002), the fact that the Romanian authorities were asked for premises for the CIA, the time at which the premises were provided (2003) and the fact that they were informed of the purpose for which the premises that Romania offered were to be used (see paragraphs 16 1 and 54 8 above). They also correspond to the Court ’ s above findings as to the dates marking the opening of Detention Site Black in Romania (see paragraph 52 7 above). 559. The statements obtained in the investigation relied on by the Government are in a marked contrast to the disclosures made by the US authorities, Romania ’ s partner under the agreement. The Court does not see how the findings of the US Senate Intelligence Committee, based on a several-year - long investigation and in-depth analysis of first-hand evidence, which in most part came from classified “ top secret ” sources, including more than six million pages of CIA documents (see paragraphs 7 8 - 80 above) could be undermined by the material referred to by the Government. (ii) Acquiescence with some elements of the HVD Programme 560. The 2014 US Senate Committee Report, in the chapter concerning the establishment of the CIA Detention Site Black (see paragraphs 16 1 and 54 8 above) also refers to several interventions vis-à-vis the CIA made by the US ambassador in the country in the context of the operation of the CIA HVD Programme in that country and public disclosures of ill - treatment of detainees in US custody. First, in August 2003, he expressed concern as to whether the State Department was aware of the CIA detention facility in the country and its “ potential impact ” on US policy in respect of the State concerned. The second and third interventions, prompted by “ revelations about US detainee abuses ” were made in May 2004 and in the “ fall of 2004 ”. The report further states that “ while it is unclear how the ambassador ’ s concerns were resolved, he later joined the chief of Station in making a presentation ” to the country ’ s authorities ( or representatives ) whose names were redacted in the text. The presentation did not describe the EITs but “ represented that without the full range of these interrogation measures ” the US “ would not have succeeded in overcoming [the] resistance “ of Khalid Sheikh Mohammed ” and “ other equally resistant HVDs ”. The presentation also included representations “ attributing to CIA detainees critical information ” on several terror plots, including the “ Karachi Plot ”, the “ Heathrow Plot ” and the “ Second Wave Plot ”. Also, in the context of intelligence obtained, several well-known HVDs in US custody were mentioned by name (see paragraph 161 above). 561. The above information originated in an evidential source to which the Court attributes utmost credibility (see also paragraph 55 9 above). It gives a description of a concrete event – an oral presentation – that occurred at some time following “ the fall of 2004 ” and during which, in the context of the operation of Detention Site Black in the country, the Romanian authorities were presented with an outline of the CIA HVD Programme by the US officials. Even though the format of the meeting and names or functions of participants representing the host country have not been revealed, the disclosure clearly shows that the presentation included a fairly extensive account of the HVD Programme. To begin with, the US officials clearly spoke of intelligence that had been obtained from high-value detainees through “ overcoming resistance ” by means of a “ full range of interrogation measures ”. They also suggested that specific terrorist suspects in CIA custody had provided “ critical intelligence ” on prominent terror plots. CIA prisoners whose resistance was “ overcome ” as a result of interrogations were spoken of, to mention only Khalid Sheikh Mohammed, the top HVD in CIA custody, suspected of masterminding the 11 September 2001 terrorist attacks in the USA. ( b ) Assistance in disguising the CIA rendition aircraft ’ s routes through Romania by means of the so-called “ dummy ” flight planning 562. In Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland the fact that the national authorities cooperated with the CIA in disguising the rendition aircraft ’ s actual routes and validated incomplete or false flight plans in order to cover up the CIA activities in the country was considered relevant for the Court ’ s assessment of the State authorities ’ knowledge of, and complicity in, the HVD Programme (see Al Nashiri v. Poland, cited above, §§ 419-422; and Husayn (Abu Zubaydah) v. Poland, cited above, §§ 421-424 ). The Court will follow that approach in analysing the facts of the present case. 563. It is to be reiterated that the Government acknowledged that in respect of two flights, namely N313 P on 2 2 September 2003 and NVM85 on 12 April 2004 the flight plans had been changed when the planes had been in the air. They denied that any role in the process had been played by the Romanian authorities, except for a passive, “ automatic ” acceptance of the change for which the plane operator had been solely responsible and assistance in transmitting the flight plans to the entity managing the integrated initial flight plan processing system (see paragraph 43 9 above). 564. However, as already noted above, the clear inconsistencies in the flight data pertaining to destinations where the CIA-associated aircraft were supposed to arrive and from where they actually took off presented by the Romanian authorities were already identified in the 2007 Marty Report and the Fava Report (see paragraphs 26 4 and 51 2 above). Also, Mr Hammarberg ’ s dossier addressed to the Romanian Prosecutor General listed eight rendition flight circuits occurring between 22 September 2003 and 21 August 2005 in respect of which false flight plans had been filed (see paragraph 33 7 above). 565. The practice of so-called “ dummy ” flight planning, i.e. a process of intentional disguise of flight plans for rendition aircraft used by the air companies contracted by the CIA, for instance Jeppesen Dataplan Inc. or Richmor Aviation (see paragraphs 6 3 - 70 above), was explained by Senator Marty and Mr J.G.S. in their testimony during the PowerPoint presentation on the basis of two examples of the CIA rendition circuits through Romania executed by plane N313P on 20-24 September 2003 and 16-28 January 2004 (see paragraphs 32 8 and 3 71 above). The experts described the “ dummy ” flight planning as “ a systematic practice deployed by the CIA and its aviation services providers to disguise CIA flights into and out of its most sensitive operational locations ”. They added that the CIA could not execute this tactic alone since it “ depended upon, however discrete, a role played by the national counterpart authority ”. The Romanian documentary records demonstrated the landing of N313P on 25 January 2004 at Bucharest Băneasa Airport despite the absence of a valid flight plan. According to the experts, “ this was part of a systematic practice and through our investigations we [had] generated numerous, up to twelve instances on which CIA rendition aircraft [had] transferred detainees into, and out of, Bucharest, Romania ” (see paragraph 37 3 above). In this connection, the Court would also reiterate its above findings that the flights N313P and N1HC marking the opening and the closure of the CIA detention facility in Romania, flight N85VM, identified as the one that brought the applicant into Romania and flight N308AB, identified as one of the two possible flights on which the applicant was taken out of Romania were concealed by the “ dummy ” flight planning (see paragraphs 51 9, 52 7, 5 31, 534- 53 7 and 54 2 above) 566. As the Court found in Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland, the “ dummy ” flight planning, a deliberate effort to cover up the CIA flights, required active cooperation on the part of the host countries through which the planes travelled. In addition to granting the CIA rendition aircraft overflight permissions, the national authorities navigated the planes through the country ’ s airspace to undeclared destinations in contravention of international aviation regulations and issued false landing permits (see Al Nashiri v. Poland, cited above, §§ 419-422; and Husayn (Abu Zubaydah) v. Poland, cited above, §§ 421-424). 567. Consequently, the fact that the Romanian aviation authorities navigated the CIA flights into Bucharest, despite the fact that the relevant flight plans named Constanţa or Timișoara as the airports of destination and accepted flight plans naming those destinations but navigated the planes to Bucharest demonstrated that they knowingly assisted in the process of disguise of the CIA planes (ibid. ). (c) Special procedure for CIA flights 568. The Government asserted that, in contrast to the circumstances in Al Nashiri v. Poland, in Romania there had been no special procedure for receiving the impugned flights (see paragraphs 43 6 -4 40 above). In that regard they relied on evidence from witnesses heard in the investigation, who had not related any special treatment of the US flights that would deviate from routine procedures for any ordinary flight (see paragraphs 43 7 -43 8 above). 569. The Court notes that, indeed, several witnesses said that they had not heard about or seen any “ clandestine passengers ”, “ detainees ” or “ any passenger especially of Arab origin ” (see paragraphs 30 6 -30 9 and 31 7 -31 9 above) or that they had not noted “ anything out of the ordinary when the ‘ private planes ’ [had] landed ” or that there had been “ no special services provided ” (see paragraphs 3 20 and 32 3 above). 570. However, the statements of several other witnesses who referred to the “ special ” or “ N ” status flights with the US registrations contradict the Government ’ s assertion. Witness E knew about three or four such flights that landed at night time and parked on the airport platform for about 10-15 minutes. He said that that the only person approaching them had been witness X. Witness G knew of the “ N ” flights having been announced as special flights for which the staff had not been requested. Witness O spoke of one plane that had been treated differently and the staff had been asked to stay in the office and not go to the plane. Witness P knew that special flights had been “ carried out at night ”; also, on one night he had seen a plane without a call sign and a man in dark overalls and military boots walking a dog near the plane (see paragraphs 3 10, 31 4 and 3 22 - 32 3 above). Witness X, apparently the only person who had been seen approaching the “ special planes ” did not explain in concrete terms what had in reality been going on but said that his presence in the airport had been connected with “ bilateral relations ” with the US ” equivalent structures ” and “ aimed at ensuring protocol relations during processing as well as bilateral courtesy-setting according to diplomatic norms and international rules ” (see paragraph 29 9 above). 571. Witness Z, in his statement of 17 September 2013 given to the prosecutor was more explicit. He confirmed that in the context of Romania ’ s forthcoming accession to NATO “ some developments or agreements [had taken] place in relation to the American flights to be operated by the CIA ” and that, “ from about 2003 onwards several contacts had taken place in that direction and they resulted in concrete agreements that made possible the operation of the special American flights on Romanian territory, in different conditions than those provided for by international customs ”. He added that “ those flights [had] had a special character and they [had] not [been] under an obligation to obey usual rules imposed on civil flights ” (see paragraph 301 above). 572. Lastly, in the Court ’ s view, the way in which the Romanian authorities dealt with the accident on the landing of the aircraft N478GS that occurred on 6 December 2004 is one more element that contradicts the Government ’ s above assertion as to the lack of any special treatment of the CIA-associated flights. The incident was described in the Fava Report and the 2007 EP Resolution, and was also related by Mr Fava at the fact-finding hearing (see paragraphs 27 5, 2 80 and 36 2 above). The presence in Romania of seven passengers on the plane which came from Bagram, Afghanistan, was apparently concealed. Only on the TDIP ’ s considerable insistence did the Romanian authorities give them a list of passengers, all of them US citizens with service passports. One of them was armed with a Beretta gun and had ammunition on him. No questions were asked about the purpose of their trip from Bagram, a place reported as hosting a CIA detention site for the purposes of interrogations of captured terrorist-suspects (see paragraph 36 2 above). ( d ) Informal transatlantic meeting 573. As in Al Nashiri v. Poland ( cited above § 434) and Husayn (Abu Zubaydah) v. Poland (cited above § 436) the Court considers the informal transatlantic meeting of the European Union and North Atlantic Treaty Organisation foreign ministers with the then US Secretary of State, Ms Condoleezza Rice, held on 7 December 2005, to be one of the elements relevant for its assessment of the respondent State ’ s knowledge of the CIA rendition and secret detention operations in 2003-2005. 574. In his testimony in Al Nashiri v. Poland, Mr Fava stated that the meeting had been convened in connection with recent international media reports, including The Washington Post and ABC News disclosures of, respectively, 2 November 2005 and 5 December 2005, naming European countries that had allegedly hosted CIA “ black sites ” on their territories (see Al Nashiri v. Poland, cited above, §§ 306 and 434). He also described the content of the “ debriefing ” of that meeting, a document that the TDIP obtained from a credible confidential source in the offices of the European Union. He stated that it had appeared from Ms Rice ’ s statement “ we all know about these techniques ” made in the context of the CIA operations and interrogations of terrorist suspects which had been recorded in the debriefing that there had been an attempt on the USA ’ s part to share the “ weight of accusations ” (ibid.). 575. In the present case Mr Fava testified that it had emerged from the debriefing that, at that stage, all the governments had known that this “ operational means ” had been chosen by the CIA and that the extraordinary renditions were a tool in the war against terrorism. Mr Fava further stated that the TDIP had “ never had doubts ” given the precision of the debriefing notes and the fact that in the course of their further work they had received confirmation from Mr Bellinger, legal advisor to Ms Rice, that the US had “ never violated the sovereignty of any EU Member States or indeed any States in in the process of accession to the EU ” and that everything what they had done “ [had been] done by always informing and asking for cooperation and never trying to prevail over the will of the governments of the Member States ” (see paragraph 3 61 above). 576. In the context of Romania ’ s knowledge of the CIA HVD Programme, Mr Fava moreover referred to a statement of Mr Pascu, listed in the 2007 Marty Report among the Romanian high-office holders “ who knew about, authorised and [stood] accountable ” for Romania ’ s role in the CIA HVD Programme (see paragraph 26 2 above). According to Mr Fava, Mr Pascu, as Minister of Defence, had been aware that the Romanian authorities had not had access to certain sites which had been under the control of the US army or intelligence services. In Mr Fava ’ s opinion, this statement, although later rectified by Mr Pascu, was truthful (see paragraph 36 3 above). (e ) Circumstances routinely surrounding HVDs transfers and reception at the CIA “ black site ” 577. The Court considers, as it did in Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland (both cited above), that the circumstances and conditions in which HVDs were routinely transferred by the CIA from rendition planes to the CIA “ black sites ” in the host countries should be taken into account in the context of the State authorities ’ alleged knowledge and complicity in the HVD Programme (see Al Nashiri v. Poland, cited above, § 437; and Husayn (Abu Zubaydah) v. Poland, cited above, § 439 ). It follows from the Court ’ s findings in the above cases and the CIA materials describing the routine procedure for transfers of detainees between the “ black sites ” (see paragraphs 48- 5 1 above) that for the duration of his transfer a HVD was “ securely shackled ” by his hands and feet, deprived of sight and sound by the use of blindfolds, earmuffs and hood and that upon arrival at his destination was moved to the “ black site ” under the same conditions. 578. The Court finds it implausible that the transportation of prisoners on land from the planes to the CIA detention site could, for all practical purposes, have been effected without at least the minimum assistance of the host country ’ s authorities, if only to secure the area near and around the landed planes and provide the conditions for the secret and safe transfer of passengers. Inevitably, the Romanian personnel responsible for security arrangements, in particular the reception of the flights and overland transit, must have witnessed at least some elements of the detainees ’ transfer to Detention Site Black, for instance the unloading of blindfolded and shackled passengers from the planes (see also Al Nashiri v. Poland, cited above, §§ 330 and 437). Consequently, the Court concludes that the Romanian authorities who received the CIA personnel in the airport could not have been unaware that the persons brought by them to Romania were the CIA prisoners. ( f ) Public knowledge of treatment to which captured terrorist suspects were subjected in US custody in 200 2 -2005 579. The Court also attaches importance to various material referring to ill-treatment and abuse of terrorist suspects captured and detained by US authorities in the “ war on terror ” which were available in the public domain at the relevant time (see El Masri, cited above, § 160; Al Nashiri v. Poland, cited above, § 439; Husayn (Abu Zubaydah) v. Poland, cited above, § 441; and Nasr and Ghali, cited above, § 234). 580. Before analysing that material, the Court wishes to refer to President ’ s Bush memorandum of 7 February 2002, stating that neither al ‑ Qaeda nor Taliban detainees qualified as prisoners of war under the Geneva Conventions and that Common Article 3 of the Geneva Conventions (see paragraph 204-209 above), did not apply to them. The White House Press Secretary announced that decision at the press conference on the same day. It was widely commented in the US and international media. That decision, although including a disclaimer that even detainees “ not legally entitled ” to be treated humanely would be so treated, also spoke of respecting the principles of the Geneva Conventions “ to the extent appropriate and consistent with military necessity ” (see paragraphs 3 1 -3 2 above). Consequently, already at this very early stage of the “ war on terror ” it was well known that “ military necessity ” was a parameter for determining the treatment to be received by the captured terrorist-suspects. 581. The Court would further note that from at least January 2002, when the UN High Commissioner for Human Rights issued a statement relating to the detention of Taliban and al-Qaeda prisoners in Guantánamo, strong concerns were expressed publicly as to the treatment of detainees, in particular the use of “ stress and duress ” methods of interrogation and arbitrary and incommunicado detention. From January 2002 to the publication of the Washington Post report on 2 November 2005 the international governmental and non-governmental organisations regularly published reports and statements disclosing ill-treatment and abuse to which captured terrorist suspects were subjected in US custody in various places, for instance in Guantánamo and the US Bagram military base in Afghanistan. The material summarised above and cited in the AI/ICJ ’ s amicus curiae brief include only some sources selected from a large amount of documents available in the public domain throughout the above period (see paragraphs 21 2 -22 5 and 470 -4 77 above). Also, in the 2003 PACE Resolution of 26 June 2003 – of which Romania, one of the Council of Europe ’ s member States must have been aware – the Parliamentary Assembly of the Council of Europe was “ deeply concerned at the conditions of detention ” of captured “ unlawful combatants ” held in the custody of the US authorities (see paragraph 2 1 6 above). 582. At the material time the ill-treatment, use of harsh interrogation measures, and arbitrary detention of al-Qaeda and Taliban prisoners in US custody, as well as the existence of “ US overseas centres ” for interrogations was also often reported in the international and Romanian media (see paragraphs 2 30 - 243 above). In particular, between January 2002 and May 2003 the Romanian press published a number of articles concerning ill ‑ treatment of prisoners and the use of “ violent interrogation techniques ” against captured terrorists by the CIA (see paragraphs 23 9 -24 3 above). 6. The Court ’ s conclusions as to Romania ’ s alleged knowledge of and complicity in the CIA HVD Programme 583. The Court is mindful of the fact that knowledge of the CIA rendition and secret detention operations and the scale of abuse to which high-value detainees were subjected in CIA custody have evolved over time, from 2002 to the present day. A considerable part of evidence before the Court emerged several years after the events complained of (see paragraphs 3 6 -5 9, 78-97, 251 -29 7, 33 3 -34 2 and 35 5 -35 8 above; see also Al Nashiri, cited above, § 440; and Husayn (Abu Zubaydah), cited above, § 442 ). Romania ’ s alleged knowledge and complicity in the HVD Programme must be assessed with reference to the elements that it knew or ought to have known at or closely around the relevant time, that is to say between 22 September 20 03 and 5 November 2005. However, the Court, as it has done in respect of the establishment of the facts relating to the applicant ’ s secret detention in Romania, will also rely on recent evidence which, as for instance the 2014 US Senate Committee Report and expert evidence obtained by the Court, relate, explain or disclose the facts occurring in the past (see Al Nashiri v. Poland, cited above, § 440; and Husayn (Abu Zubaydah) v. Poland, cited above, § 442). 584. In its assessment, the Court has considered all the evidence in its possession and the various related circumstances referred to above (see paragraphs 54 8 -5 82 above). Having regard to all these elements taken as a whole, the Court finds that it has been adequately demonstrated to the required standard of proof that the Romanian authorities knew that the CIA operated on Romanian territory a detention facility for the purposes of secretly detaining and interrogating terrorist suspects captured within the “ war on terror ” operation by the US authorities. This finding is primarily based on compelling and crucial evidence deriving from the 2014 US Senate Committee Report and, to a considerable extent, evidence from experts. The passages of the report about the agreement brokered between the USA and the country hosting Detention Site Black leave no doubt as to the fact as to the Romanian high-office holders ’ prior acceptance of a CIA detention facility on their territory. Nor can there be any doubt that they provided “ cooperation and support ” for the “ detention programme ” and that, in appreciation, were offered and accepted a financial reward, referred to as a “ subsidy ” amounting to a redacted multiple of USD million (see paragraph 54 8 -54 9 above). The experts, with reference to the reward received by the Romanian authorities, spoke of a “ substantial sum, in the region of ten million United States dollars ” (see paragraph 38 4 above) or “ more than eight million dollars ” (see paragraph 3 91 above). However, for the purposes of its ruling, the Court does not need, nor does it intend, to determine the sum that was at stake. 585. The Court further attaches importance to the fact that the former Head of State Mr Iliescu and his national-security advisor Mr Talpeş, admitted publicly in the press interviews that the authorities had made available to the CIA premises which, as Mr Talpeş later explained, were located in Bucharest (see paragraphs 55 3 -55 4 above ). While it is true that Witness Y and Witness Z in their testimonies before the prosecutor contradicted the statements of Mr Iliescu and Mr Talpeş reported in Spiegel Online, in the Court ’ s view their denial cannot be considered credible as being in conflict with all other relevant materials cited above (see paragraphs 548 -55 9 above). In any event, as noted above, Witness Z confirmed that a location “ for actions of combating international terrorist threats ” was offered to the CIA (see paragraphs 302 and -55 7 above ). 586. Furthermore, the disclosure in the 2014 US Senate Committee Report demonstrates conclusively that in the autumn of 2004, when Detention Site Black had already been operating in Romania for around one year, the national authorities were given a presentation outlining the HVD Programme by the chief of the CIA station and the US ambassador. The content of that presentation as related in the report leaves no doubt as to the fact that at the very least the Romanian authorities had learnt from the CIA of a “ full range of interrogation measures ” being used against their detainees in order to “ overcome resistance ” in the context of obtaining intelligence (see paragraphs 5 60 -5 61 above ). 587. Furthermore, the experts, who in the course of their inquiries also had the benefit of contact with various, including confidential, sources unanimously and categorically stated that Romania not only ought to have known but actually did know of the nature and purposes of the CIA activities in the country. Senator Marty said that the authorities “ must have known that the CIA had used their territory for transfers of prisoners in the context of the war on terror ”. Mr J.G.S. stated that “ quite clearly, categorically the Romanian authorities, at the highest level, did know of the existence of secret detention on their territory ” and that “ they were aware of the precise purpose of the rendition flights entering and exiting the country, and the conditions, or roughly the conditions, under which the detainees were held in between their arrivals and their departures ”. Mr Hammarberg stated that “ though the operations were conducted under extreme secrecy, it is obvious that the CIA plane could not land with its cargo and depart without agreement from high-level Romanian decision makers ”. Mr Black said that it was “ clear that the authorities were aware of [the purposes of the CIA aircraft landings in Romania] because, among other things, they received money for it ” and that, based on the 2014 US Senate Committee Report, it was “ normally common practice ... that the host country ’ s officials were in the know about these facilities and the purposes of them ” (see paragraphs 34 4, 3 80, 38 4 and 391 above). This did not mean, the experts added, that the Romanian authorities had known the details of what exactly went on inside Detention Site Black or witnessed treatment to which the CIA prisoners had been subjected in Romania. As in other countries hosting clandestine prisons, the operation of the site was entirely in the hands of the CIA and the interrogations had been exclusively the CIA ’ s responsibility (see paragraphs 34 4, 3 80 and 384 above; see also Al Nashiri v. Poland, cited above, § 441; and Husayn (Abu Zubaydah) v. Poland, cited above, § 443 ). 588. However, in the Court ’ s view, even if the Romanian authorities did not, or could not, have complete knowledge of the HVD Programme, the facts available to them, in particular those presented to them directly by their US partners, taken together with extensive and widely available information about torture, ill-treatment, abuse and harsh interrogation measures inflicted on terrorist suspects in US custody which in 2002-2005 circulated in the public domain, including the Romanian press (see paragraphs 57 9 -5 82 above), enabled them to conjure up a reasonably accurate image of the CIA ’ s activities and, more particularly, the treatment to which the CIA were likely to have subjected their prisoners in Romania. In that regard the Court would reiterate that in Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland it has found that already in 2002-2003 the public sources reported practices resorted to, or tolerated by, the US authorities that were manifestly contrary to the principles of the Convention. Consequently, the Romanian authorities had good reason to believe that a person detained under the CIA rendition and secret detention programme could be exposed to a serious risk of treatment contrary to those principles on Romanian territory. It further observes that it is – as previously found in respect of Poland – inconceivable that the rendition aircraft could have crossed the country ’ s airspace, landing at and departing from its airports, that the CIA occupied the premises offered by the national authorities and transported detainees there, without the State authorities being informed of or involved in the preparation and execution of the HVD Programme on its territory. Nor can it stand to reason that activities of such a character and scale, possibly vital for the country ’ s military and political interests, could have been undertaken on Romanian territory without Romania ’ s knowledge and without the necessary authorisation and assistance being given at the appropriate level of the State authorities (see Al Nashiri v. Poland, cited above, §§ 441-442; and Husayn (Abu Zubaydah) v. Poland, cited above, §§ 443-444). 589. The Court accordingly finds it established beyond reasonable doubt that: (a) Romania knew of the nature and purposes of the CIA ’ s activities on its territory at the material time. (b) Romania, by entering into an agreement with the CIA on hosting Detention Site Black, enabling the CIA to use its airspace and airports and to disguise the movements of rendition aircraft, providing logistics and services, securing the premises for the CIA and transportation of the CIA teams with detainees on land, cooperated in the preparation and execution of the CIA rendition, secret detention and interrogation operations on its territory. (c) Given its knowledge of the nature and purposes of the CIA ’ s activities on its territory and its involvement in the execution of that programme, Romania knew that, by enabling the CIA to detain terrorist suspects on its territory, it was exposing them to a serious risk of treatment contrary to the Convention. III. ROMANIA ’ S JURISDICTION AND RESPONSIBILITY UNDER THE CONVENTION A. The parties ’ submissions 590. The parties ’ submissions regarding the Government ’ s objection that Romania lacked jurisdiction within the meaning of Article 1 of the Convention and, consequently, could not be responsible under the Convention are set out above (see paragraphs 395 -40 9 above). B. The Court ’ s assessment 591. The Court notes that the applicant ’ s complaints relate both to the events that occurred on Romania ’ s territory and to the consequences of his transfer from Romania to other places where he was secretly detained (see paragraphs 11 5 -1 90 above). In that regard, the Court would wish to reiterate the relevant applicable principles. 1. As regards jurisdiction 592. It follows from Article 1 that States parties must answer for any infringement of the rights and freedoms protected by the Convention committed against individuals placed under their “ jurisdiction ”. The exercise of jurisdiction is a necessary condition for a Contracting State to be able to be held responsible for acts or omissions attributable to it which give rise to an allegation of the infringement of rights and freedoms set forth in the Convention. In that regard, the Court would refer to its case-law to the effect that the concept of “ jurisdiction ” for the purposes of Article 1 of the Convention must be considered to reflect the term ’ s meaning in public international law (see Gentilhomme and Others v. France, nos. 48205/99, 48207/99 and 48209/99, § 20, judgment of 14 May 2002; Banković and Others v. Belgium and Others (dec.) [GC], no. 52207/99, §§ 59-61, ECHR 2001 ‑ XII; Assanidze v. Georgia [GC], no. 71503/01, § 137, ECHR 2004-II; and Ilaşcu and Others, cited above, §§ 311-312 ). From the standpoint of public international law, the words “ within their jurisdiction ” in Article 1 of the Convention must be understood to mean that a State ’ s jurisdictional competence is primarily territorial, but also that jurisdiction is presumed to be exercised normally throughout the State ’ s territory (see Ilaşcu and Others, cited above, § 312 with further references to the Court ’ s case-law; and Sargsyan v. Azerbaijan [GC], no. 40167/06, §§ 149-150, ECHR 2015). 593. It must also be reiterated that, for the purposes of the Convention, the sole issue of relevance is the State ’ s international responsibility, irrespective of the national authority to which the breach of the Convention in the domestic system is attributable (see Assanidze, cited above, § 146, with further references to the Court ’ s case-law). 2. As regards the State ’ s responsibility for an applicant ’ s treatment and detention by foreign officials on its territory 594. In accordance with the Court ’ s settled case-law, the respondent State must be regarded as responsible under the Convention for internationally wrongful acts performed by foreign officials on its territory with the acquiescence or connivance of its authorities (see Ilaşcu and Others, cited above, § 318; El-Masri, cited above, § 206; Al Nashiri v. Poland, cited above, § 452; Husayn (Abu Zubaydah) v. Poland, cited above, § 449; and Nasr and Ghali, cited above, § 241). 3. As regards the State ’ s responsibility for an applicant ’ s removal from its territory 595. The Court has repeatedly held that the decision of a Contracting State to remove a person – and, a fortiori, the actual removal itself – may give rise to an issue under Article 3 where substantial grounds have been shown for believing that the person in question would, if removed, face a real risk of being subjected to treatment contrary to that provision in the destination country (see Soering v. the United Kingdom, 7 July 1989, §§ 90 ‑ 91 and 113; Series A no. 161, § 91; Saadi v. Italy [GC], no. 37201/06, § 125, ECHR 2008; Babar Ahmad and Others v. the United Kingdom, nos. 24027/07, 11949/08, 36742/08, 66911/09 and 67354/09, § 168, 10 April 2012; El ‑ Masri, cited above, §§ 212-214, with further references; Al Nashiri v. Poland, cited above, § 454; Husayn (Abu Zubaydah) v. Poland, cited above, § 450; and Nasr and Ghali, cited above, § 242). Where it has been established that the sending State knew, or ought to have known at the relevant time, that a person removed from its territory was being subjected to “ extraordinary rendition ”, that is, “ an extra-judicial transfer of persons from one jurisdiction or State to another, for the purposes of detention and interrogation outside the normal legal system, where there was a real risk of torture or cruel, inhuman or degrading treatment ”, the possibility of a breach of Article 3 is particularly strong and must be considered intrinsic in the transfer (see El-Masri, cited above, § § 218- 221; Al Nashiri v. Poland, cited above, § 454 and Husayn (Abu Zubaydah) v. Poland, cited above, § 450; and Nasr and Ghali, cited above, § 243). 596. Furthermore, a Contracting State would be in violation of Article 5 of the Convention if it removed, or enabled the removal, of an applicant to a State where he or she was at real risk of a flagrant breach of that Article (see Othman (Abu Qatada) v. the United Kingdom, no. 8139/09, §§ 23 3 and 285, ECHR 2012 (extracts); and El-Masri, cited above, § 239). Again, that risk is inherent where an applicant has been subjected to “ extraordinary rendition ”, which entails detention “ outside the normal legal system ” and which, “ by its deliberate circumvention of due process, is anathema to the rule of law and the values protected by the Convention ” (see El-Masri, ibid.; Al Nashiri v. Poland, cited above, § 455; Husayn (Abu Zubaydah) v. Poland, cited above, § 451; and Nasr and Ghali, cited above, § 244). 597. Similar principles apply to cases where there are substantial grounds for believing that, if removed from a Contracting State, an applicant would be exposed to a real risk of being subjected to a flagrant denial of justice (see Othman (Abu Qatada), cited above, §§ 261 and 285) or sentenced to the death penalty (see Al-Saadoon and Mufdhi v. the United Kingdom, no. 61498/08, § 123, ECHR 2010; Kaboulov v. Ukraine, no. 41015/04, § 99, 19 November 2009; Al Nashiri v. Poland, cited above, § 456; and Husayn (Abu Zubaydah ) v. Poland, cited above, § 453 ). 598. While the establishment of the host State ’ s responsibility inevitably involves an assessment of conditions in the destination country against the standards set out in the Convention, there is no question of adjudicating on or establishing the responsibility of the destination country, whether under general international law, under the Convention or otherwise. In so far as any responsibility under the Convention is or may be incurred, it is responsibility incurred by the host Contracting State by reason of its having taken action which has as a direct consequence the exposure of an individual to proscribed ill-treatment or other alleged violations of the Convention (see Soering, cited above, §§ 91 and 113; Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, §§ 67 and 90, ECHR 2005 ‑ I, with further references; Othman (Abu Qatada), cited above, § 258; and El ‑ Masri, cited above, §§ 212 and 239). 599. In determining whether substantial grounds have been shown for believing that a real risk of the Convention violations exists, the Court will assess the issue in the light of all the material placed before it or, if necessary, material it has obtained proprio motu. It must examine the foreseeable consequences of sending the applicant to the destination country, bearing in mind the general situation there and his personal circumstances. The existence of the alleged risk must be assessed primarily with reference to those facts which were known or ought to have been known to the Contracting State at the time of the removal. However, where the transfer has already taken place at the date of the Court ’ s examination, the Court is not precluded from having regard to information which comes to light subsequently (see Al-Saadoon and Mufdhi (cited above), § 125; El ‑ Masri, cited above, §§ 213-214, with further references; Al Nashiri v. Poland, cited above, § 458; Husayn (Abu Zubaydah) v. Poland, cited above, § 455; and Nasr and Ghali, cited above, § 246). 4. Conclusion as to the Romanian Government ’ s preliminary objection that Romania lacks jurisdiction and responsibility under the Convention 600. The Court has duly noted that the Government, while denying that the facts as alleged by the applicant occurred in Romania, accepted that Romania could be responsible under the Convention if it had knowingly permitted its territory to be used by another State for activities involving human rights violations and if, given the public awareness of the CIA HVD Programme, the authorities had become aware that the flights operating on Romanian ’ s territory had been used for the CIA rendition operations and that the CIA had run a secret detention facility in the country (see paragraph 39 6 above). 601. Following an extensive and detailed analysis of the evidence in the present case, the Court has established conclusively and beyond reasonable doubt that Romania hosted CIA Detention Site Black from 22 September 2003 to 5 November 2005; that the applicant was secretly detained there from 12 April 2004 to 6 October 2005, or, at the latest, to 5 November 2005; that Romania knew of the nature and purposes of the CIA ’ s activities in its country and cooperated in the execution of the HVD Programme; and that Romania knew that, by enabling the CIA to detain terrorist suspects on its territory, it was exposing them to a serious risk of treatment contrary to the Convention (see paragraphs 5 08 -58 9 above ). The above findings suffice for the Court to conclude that the matters complained of in the present case fall within the “ jurisdiction ” of Romania within the meaning of Article 1 of the Convention and are capable of engaging the respondent State ’ s responsibility under the Convention. Accordingly, the Government ’ s preliminary objection on these grounds must be dismissed. 602. The Court will accordingly examine the applicant ’ s complaints and the extent to which the events complained of are attributable to the Romanian State in the light of the above principles of State responsibility under the Convention, as deriving from its case-law (see also Al Nashiri v. Poland, cited above, § 459; and Husayn (Abu Zubaydah) v. Poland, cited above, § 456). IV. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION 603. The applicant ’ s complaints under Article 3 of the Convention concerned both substantive and procedural aspects of this provision. ( 1) As regards his alleged ill-treatment and detention in Romania, he maintained that the respondent State had violated Article 3 in enabling his ill ‑ treatment on its territory. Romania knew or must have known about the CIA extraordinary rendition programme, the existence of the “ black site ” in Romania and the torture and inhuman and degrading treatment to which the CIA had subjected “ high-value detainees ” as part of this programme. ( 2) As regards his transfer from Romania, the applicant submitted that Romania had knowingly and intentionally enabled his transfer from its territory in spite of there being substantial grounds for believing that there had been a real risk of his being subjected to further treatment contrary to Article 3 in CIA custody. ( 3) The applicant also complained under Article 3 read alone and in conjunction with Article 13 of the Convention that the Romanian authorities had failed to conduct an effective investigation into his allegations of ill-treatment during his detention in a CIA-run detention facility in Romania. He also alleged that by its refusal to acknowledge, promptly and effectively investigate and disclose details of his ill-treatment, detention, enforced disappearance and rendition, Romania had violated his and the public ’ s right to the truth under Article 3. 604. Article 3 of the Convention states: “ No one shall be subjected to torture or to inhuman or degrading treatment or punishment. ” 605. The Court will first examine the applicant ’ s complaint under the procedural aspect of Article 3 about the lack of an effective and thorough investigation into his allegations of ill-treatment when in CIA custody on Romania ’ s territory (see El-Masri, cited above, § 181; Al Nashiri v. Poland, cited above, § 462; and Husayn (Abu Zubaydah) v. Poland, cited above, § 459 ). A. Procedural aspect of Article 3 1. The parties ’ submissions (a) The Government 606. In their written pleadings, the Government underlined that the Court had consistently held that the obligation to investigate allegations of ill-treatment was not one of result, but one of means: not every investigation should necessarily be successful or come to a conclusion which coincided with the claimant ’ s account of events. However, it should in principle be capable of leading to the establishment of the facts of the case and, if the allegations proved to be true, to the identification and punishment of those responsible. The Court had also acknowledged that the scope of the State ’ s procedural obligation under Article 3, as well as the particular form of investigation, might vary depending on the situation that had triggered that obligation. In their view, both the parliamentary inquiry conducted by the Romanian Senate and the criminal investigation initiated by the applicant ’ s criminal complaint of 29 May 2012 had been prompt, thorough and independent, as required by Article 3 of the Convention. They added that in the criminal investigation the applicant ’ s rights as victim had been duly recognised and respected. 607. Referring to concerns and criticism regarding the allegedly superficial nature of the parliamentary inquiry and the alleged abuse of State secrecy and national security expressed in, among others, the Fava Report and the 2011 Marty Report, the Government maintained that the authorities had thoroughly investigated the issues of the suspicious flights and alleged secret detention facility. In contrast to what had been claimed in the above reports, the 2007 Romanian Senate Report had not been confined to the defence of Romania ’ s official position but constituted a comprehensive analysis of the vast material collected by the Romanian Senate Inquiry Committee during an extensive investigation. In particular, between January 2006 and January 2007, the committee ’ s activity had consisted of twenty-one meetings for documentation review and analysis with the leaders of the institutions and of the specialised structures; over forty meetings with official delegations and members of the European Council and Commission, other politicians, and journalists; six trips of the committee ’ s delegations to the airports and military airbases alleged to have been used for secret detentions and illegal prisoner transfers; hearings involving over 200 persons, with attributions regarding flights records, verification, coordination, and on-ground security and services; study of over 4,200 pages, containing relevant information for the terms of reference of the committee. 608. As regards the submissions of the applicant and APADOR-CH regarding the alleged secrecy of annexes to the 2008 Romanian Senate Report (see paragraph 63 1 below), the Government maintained that, notwithstanding the classification of eleven annexes to the Report, most of the annexes had not been secret. Moreover, the information related to the alleged suspicious flights, included in the classified annexes, had been available to the official investigators of the PACE and the European Parliament. As could be seen from the 2007 Romanian Senate Report, the committee had investigated all the airports and airfields mentioned in Eurocontrol ’ s documents and examined the Marty Reports and flight plans of all the aircraft regarded as suspicious. The Romanian Senate Inquiry Committee had also had access to the classified documents on which the report ’ s conclusions relied. In view of the foregoing, the Government asserted that the parliamentary inquiry had been thorough and expeditious. 609. Given that the 2007 Romanian Senate Report had conclusively established that there had been no CIA secret detention sites in Romania, that the allegedly suspicious flights had had nothing to do with the illegal transportation of prisoners and that there had been no evidence that Romanian institutions or persons had knowingly or by negligence participated in the rendition operations, there had been no legal or factual grounds on which to conduct a criminal investigation into those matters. However, following the applicant ’ s criminal complaint, the prosecution had promptly opened an investigation. The proceedings had progressed without delay. The investigative authorities had taken several steps in order to clarify the facts related to the applicant ’ s complaint. In order to verify the matters complained of by the applicant, internal verifications had been performed, consisting in, among other things, sending letters to RCAA asking it to make available flight data relating to suspicious flights and to the relevant airports. Various ministries, for instance the Ministry of Defence, the Ministry of Transport and the Ministry of Foreign Affairs had been asked to provide information regarding the alleged existence of a CIA secret prison and any material that could be relevant. Many witnesses, including some high-ranking officials and the airport security and civil personnel, had been heard by the prosecutor. Furthermore, a number of requests for legal assistance had been addressed to the US authorities, asking for specific information about the applicant, namely, whether he had ever been brought to Romania under the US extraordinary rendition programme and whether Romania had been involved in that programme. Those requests had so far been unsuccessful. 610. In the Government ’ s submission, the material collected in the investigation had not revealed the existence of a CIA secret detention facility. Nevertheless, the Romanian investigative authorities were committed to taking into account the 2014 US Senate Committee Report published in December 2014 and the subsequent speculations concerning the so-called “ black sites ” on Romanian territory. The proceedings were ongoing and their outcome could not be anticipated by the Government. 611. As regards the length of the investigation, the Government submitted that it was true that the proceedings had been lengthy, but not unduly so, especially considering their exceptional complexity and the factors which had had an impact on their progress and which were beyond the Romanian prosecution authority ’ s control, such as a lack of response to requests for legal assistance on the part of the US authorities. 612. At the public hearing, the Government underlined that the conclusions of the 2007 Romanian Senate Report had not amounted to mere statements, but had been the result of real work done in the investigation extending from January 2006 to January 2007, and whose value should not be underestimated. They also underlined that the previously classified annexes to that report had been made publicly available, in particular in the proceedings before the Court. The annexes helped to shed some light on the work of the Romanian Senate Inquiry Committee and demonstrated the thorough nature of the parliamentary inquiry. The committee had requested, and received, information concerning the purpose of the allegedly suspicious flights, the service rendered by the civil handling agents, as well as the diplomatic overflight requests received by the Ministry of Defence from the United States Embassy from 2001 to 2005. Even though the annexes had been classified up to a recent date, at no point had the Romanian authorities tried to hide behind a wall of “ State secrecy ” and national security. The relevant, albeit summarised, information contained in the classified annexes had been disclosed together with the report, being made available to all the interested parties. 613. The Government reiterated that the criminal investigation had been thorough and supervised by an independent body, and that it had offered the victim ’ s representatives the possibility of participating effectively in its conduct. In that regard, they stressed that, according to the Romanian Code of Criminal Procedure, the applicant ’ s representatives could have asked the prosecutor if they could be informed about any action taken in the criminal investigation and attend any examination of witnesses. However, no such request had so far been received. 614. From the beginning of the investigation, the Public Prosecutor ’ s Office had established an investigation plan, based on the content of the criminal complaint and on information available in the public domain. Most of the actions stated in this plan had already been carried out; only the requests for legal assistance to the US authorities had remained unanswered. All the institutions that could hold information about the flights that were considered suspicious in various reports had been contacted by the Public Prosecutor ’ s Office and requested to submit all the relevant data. The Prosecutor ’ s Office had taken a particular interest in the identification of personnel working at Băneasa Airport on the dates of the flights allegedly used in rendition circuits; twenty-three witnesses working for the Border Police, for the private handling agent Romanian airport services and for the Airport Security Department, had been heard in relation to working procedures, rules of access and, in particular, about the “ N ” flights. On the basis of the witness statements, the Public Prosecutor ’ s Office had been able to determine the procedures for the landing of private non-commercial flights and the normal processing of passengers at the time, and whether there had been blatant breaches of these procedures in the case of the US-registered flights. 615. The Government were convinced that the investigation had been effective, that each and every possible lead had been considered and that evidence had been gathered in order to establish the facts. They accordingly invited the Court to find that the criminal investigation in the present case had been effective and aimed at disclosing the truth in respect of the so-called rendition programme, the alleged involvement of the Romanian authorities in that programme and the applicant ’ s alleged secret detention in Romania. (b) The applicant 616. The applicant maintained that Romania had failed to carry out an investigation that satisfied its obligations under Article 3 of the Convention. In spite of their duty to investigate of their own accord any arguable claims of Article 3 violations, and despite being on notice since November 2005 of possible torture, ill-treatment, and incommunicado detention in a prison on Romanian territory, the authorities had not commenced a criminal investigation into the prison until almost seven years later, i.e., until July 2012, when they issued a preliminary response stating that they would review the criminal complaint filed on behalf of the applicant with the Prosecutor General in May 2012. Several years later, the criminal investigation was still ongoing. In that regard, the applicant emphasised that the Government had a continuing obligation to investigate allegations of the national authorities ’ involvement in serious human rights violations and to uncover the truth behind such involvement. 617. In the applicant ’ s view, the Government had offered no cogent explanation as to why the authorities had not initiated a criminal investigation into secret CIA prisons on Romanian territory shortly after public reports of such a prison had first surfaced and irrespective of the growing information on the existence of the HVD Programme and Romania ’ s involvement in that programme. The prosecution had shown a complete lack of interest in the topic. In addition, as set out in Mr Hammarberg ’ s affidavit, the Romanian authorities had ignored his repeated requests for an investigation and had not responded to his dossier of evidence relating to the secret CIA prison that he had submitted to the Prosecutor General. 618. Indeed, for several years following the applicant ’ s criminal complaint no serious efforts had been made to interview witnesses with likely knowledge of the secret CIA prison or of the suspicious rendition flights, to investigate the Government building where the “ Bright Light ” CIA detention site had been located, to speak to intelligence officials who might have had knowledge of any agreement with the USA, to investigate the building work that must have been done in order to convert it into a prison, to seek to speak to the multiple sources referenced in the Council of Europe ’ s and other official and unofficial investigations, or to look any further than the previously conducted Romanian Senate ’ s inquiry, which had been fundamentally flawed. To date the prosecution had made no attempt to communicate with the Office of the Human Rights Commissioner for the Council of Europe regarding the dossier of information relating to the CIA prison that former Commissioner Thomas Hammarberg had shared with the Prosecutor General in March 2012. Nor had the authorities spoken with Senator Marty about the findings in his two reports confirming that Romania had hosted a secret CIA prison or asked him whether he could supply relevant documents or witnesses ’ names. 619. The applicant further argued that, despite the fact that the Government had placed great weight on the Romanian Senate ’ s inquiry into secret prisons, this inquiry had by its very nature been ineffective because it had not been a criminal inquiry, and therefore had been incapable of “ leading to the identification and punishment of those responsible ”. As found in the Marty and Fava Reports, the inquiry had been superficial and not sufficiently independent or impartial. It did not constitute a genuine attempt to hold officials responsible; rather, it had been aimed at issuing categorical denials of allegations relating to the CIA prison on Romanian territory. It had overlooked extensive evidence to the contrary from valuable and credible sources. 620. The applicant asserted that the authorities had made no attempt to inform him of the conduct of the investigation or to involve him in the proceedings through his counsel. It was true that, given the applicant ’ s circumstances, contacting him directly would have been impossible. But there had been no attempt whatsoever even to contact the applicant ’ s representatives, let alone involve them in any way in the investigation or inform them on the progress in the proceedings. Furthermore, the investigation lacked transparency and there had been no public scrutiny of the investigation. The investigative authorities in Romania had disclosed no information to the public about the terms of reference of the investigation, what stage it was at, which crimes were at issue, or when it was likely to conclude. As such, they had failed to fulfil the public scrutiny requirement of an effective investigation. In particular, in a case such as this, the public element of the investigation was essential to encourage other witnesses to come forward, such as those who might have been involved in the preparation and conversion of the ORNISS building into a secret prison. 621. At the public hearing, the applicant reiterated once again that since 6 November 2005, when the allegations regarding Romania ’ s involvement in the CIA rendition programme had been made public in the 2006 HRW Statement, Romania had been under an obligation, promptly and of its own motion, to initiate an investigation capable of determining all the circumstances and possible victims. It would have been of utmost importance for the effectiveness of the criminal investigation to be initiated as early as possible, as the events had been recent and important evidence, such as fresh witness testimony, could have been gathered. If such investigations had been opened, it would have been possible for the domestic authorities to identify the applicant as one of the victims and to establish when he had been transferred out of Romania and to what treatment he had been subjected. Indeed, if independent investigators had been able to establish these facts during subsequent research into the materials available in the public domain, it would have been possible for official investigators as well, as long as there had been a will and effort to follow the matter. 622. Instead, the authorities had remained passive despite the fact that further information on the existence of the HVD Programme and the involvement of Romania had been disclosed to the public in the following years and that inquiries had been instituted by the Council of Europe and by the European Parliament, resulting in detailed reports. For example, Senator Marty ’ s reports had been quite specific in describing Romania ’ s involvement in the programme and in calling for an investigation. The only response had been a superficial parliamentary inquiry, falling short of all standards under Article 3 of the Convention. No criminal investigation had been initiated even though, under the Code of Criminal Procedure in force at the material time, the prosecutor could open such an investigation of his own motion and had not been bound by the findings of the parliamentary inquiry. Nor had the mounting evidence made public since then, including the US authorities ’ official acknowledgements of the CIA secret detention programme made as early as 2006, changed the Romanian authorities ’ attitude. It had only been after the applicant had lodged a formal criminal complaint in May 2012 that such an investigation had been opened. A closer scrutiny of the documents produced by the Government showed that some, although not significant, procedural steps had been taken only after notice of the application had been given to the Government. Even so, although several years had passed since, little progress had been achieved. In fact, the entry into force of a new Code of Criminal Procedure on 1 February 2014 had forced the prosecution to open the criminal investigation in rem; otherwise the case would have most probably remained at a preparatory phase. At present, the investigation was still pending against persons unknown, after more than ten years since the first reports of Romania ’ s involvement in the CIA programme had been made public. 623. The applicant considered that another example of the ineffectiveness of the investigation was the fact that there was no indication in the investigation file that the 2014 US Senate Committee Report – which had been widely publicised and must have been known to any diligent investigator – had been taken into account in any way in the proceedings or that there had been any effort to corroborate the information in the report by gathering any additional evidence. In fact, it appeared that the investigation had been completely stalled for over two years. Except for obtaining two witness statements, nothing at all had happened since 2013-2014. 624. In view of the foregoing, the applicant asked the Court to find that the respondent State was in breach of Article 3 of the Convention since, despite his credible claim that he had been subjected to torture, ill-treatment and secret detention in Romania, the investigation conducted by the Romanian authorities was not prompt, thorough, effective and sufficiently transparent, as required by that provision. 2. The third-party interveners (a) The UN Special Rapporteur 625. The UN Special Rapporteur on promotion and protection of human rights and fundamental freedoms while countering terrorism, stressing that the victim ’ s right to truth had been expressly recognised in a number of international instruments negotiated under the auspices of the United Nations, maintained that international law nowadays protected the legal right of the victim, his or her relatives, and the public at large to seek and obtain all relevant information concerning the commission of the alleged violation, including the fate and whereabouts of the victim and, where appropriate, the process by which the alleged violation had officially been authorised. It also included the right of the victim to adequate reparation (of which the establishment of the truth is an indispensable part). The payment of monetary compensation without full public exposure of the truth was not sufficient to discharge this obligation. 626. On the other side of the equation, international law imposed corresponding obligations on States which could conveniently be gathered under the rubric of the international law principle of accountability. This imposed specific duties on all three branches of government. The executive, the judiciary and parliamentary oversight bodies, as well as independent bodies entrusted with official responsibility for review of intelligence matters and/or the conduct of intelligence and law-enforcement agencies, each bore a share of the State ’ s responsibility to secure the realisation of the right to truth and the principle of accountability. 627. Where a plausible allegation was made that public officials had committed (or been complicit in the commission of) gross or systemic human rights violations, the executive authorities of the State(s) concerned were obliged under international law to carry out an official investigation which had to begin promptly, secure all relevant evidence, and be capable of leading to the identification and, where appropriate, the punishment of the perpetrator(s) and those on whose authority the violations had been committed. Any deficiency in the investigation which undermined its ability to establish the identity of the persons responsible would risk falling foul of the requisite legal standard. 628. The investigating authorities were obliged to allow the victims or (if deceased) their relatives, effective access to the investigative process, respecting their right to be informed and to participate, to disclose all relevant evidence and findings to the victims (subject only to legitimate national security limitations that were adjudged to be strictly necessary by an independent and impartial judicial or quasi -judicial tribunal); and to protect the physical and moral integrity of victims and witnesses against reprisals and threats. To meet the requirements of international law, such an investigative body must be genuinely independent of the officials implicated in the violations. This implied not only a lack of hierarchical or institutional connection but also a practical independence. 629. In El-Masri the Court had acknowledged the existence of right to truth (as such) for the first time in its jurisprudence, treating it as an aspect of the State ’ s adjectival obligation under Article 3 of the Convention to conduct an official investigation into allegations of torture. The experience of the past decade, however, showed that there were various means by which the right to truth and the principle of accountability could be (and had been) frustrated, thereby perpetuating impunity for the public officials implicated in such crimes. These included the grant of de facto or de jure immunities; the official destruction of relevant evidence; executive obstruction of (or interference in) independent investigations into past practices; the assertion by the executive of unjustified claims of secrecy on grounds of national security or the maintenance of good foreign relations; the suppression or delayed publication of reports of independent investigations whose findings might expose past official wrongdoing to public scrutiny; executive inertia motivated by a desire to “ draw a line ” under the past; the more or less oblique invocation of the “ superior orders ” defence, despite its prohibition under customary law and relevant international treaties; and excessive judicial deference to the executive on matters related to national security or the maintenance of good foreign relations, with the effect of excluding the right of access to court, or unjustifiably restricting the exposure of the facts, often on the basis of highly dubious legal reasoning. (b) APADOR-CH 630. APADOR-CH submitted that both the parliamentary inquiry and criminal investigation in Romania had been inadequate for the purposes of Article 3 of the Convention. 631. As regards the parliamentary inquiry, they stressed that it had failed to demonstrate that it had been aimed at discovering the truth in relation to the allegations of rendition flight landings and the existence of the CIA secret detention facility in Romania. First of all, the Senate had clearly stated that it had not been part of its mandate to look into the reason why flights later proved to be used by the CIA had landed in Romania, although its mandate had been to investigate such flights. Second, the procedure adopted by the Romanian Senate Inquiry Committee had lacked transparency. In particular, the annexes to the 2007 Romanian Senate Report had never been declassified, nor had they been intended to be made public. 632. As regards the criminal investigation, APADOR-CH maintained that it should have been instituted promptly after the allegations of a secret CIA prison in Romania had emerged rather than being conditional on a criminal complaint filed by a victim. (c) Joint submissions by Amnesty International ( AI ) and the International Commission of Jurists ( ICJ ) on “effective investigation” 633. AI/ICJ stressed that the Convention case-law had long established that Contracting Parties had an obligation to investigate any credible information disclosing evidence of violations of Convention rights. Any such investigation must be prompt, thorough, independent in law and in practice, allowing for the participation of the victim and “ capable of leading to the identification and punishment of those responsible ”. In this context, the interveners also stressed the importance that such investigations be initiated ex officio, rather than relying on a criminal complaint lodged by the victims or their relatives. 634. In AC/ICJ ’ s submission, the above investigative obligations on Contracting States were of particular importance in cases of renditions or enforced disappearances in which the State authorities might be implicated in the human rights violations. In cases involving rendition an individual typically experienced continuing violations of his rights outside the jurisdiction of the State where he had initially been apprehended. However, this did not divest Contracting Parties of their duty to investigate credible information disclosing evidence of involvement in renditions. Therefore, in cases of such illegal transfers, as well as torture and enforced disappearance, where the act or omission of a Contracting Party had a direct causal connection with or was part of the operation of a rendition involving a continuing violation of Convention rights, taking place partly on its territory and partly elsewhere, the State had an obligation not only to prevent, but also to take such investigative and remedial measures as were available to it to investigate and remedy the continuing violation of Convention rights. 635. The right to an effective investigation and to an effective remedy under, inter alia, Articles 3 and 5, read together with Article 13, required disclosure of the truth concerning the violations of Convention rights perpetrated in the context of the secret detention and rendition programmes This was so, not only because of the scale and severity of the human rights violations concerned, but also and in particular because of the widespread impunity for these practices, and the suppression of information about them, which had persisted in multiple national jurisdictions. Where renditions or secret detentions had taken place with the co-operation of Contracting Parties, or in violation of those States ’ positive obligations of prevention, the Convention obligations of those States to investigate and provide remedies required that they take all reasonable measures open to them to disclose to victims, their families and society as a whole, information about the human rights violations those victims had suffered within the context of these counter-terrorism operations. (d) Media Groups 636. The Media Groups ’ submission focused on open justice and the accessibility to the public of documents adduced in the Court procedure. They also referred to the freedom of expression in the context of grave violations of human rights, in particular in relation to media reporting. In so far as the applicant ’ s allegations of a breach of procedural obligations under Article 3 were concerned, the third party criticised the lack of transparency of the parliamentary inquiry in Romania. 3. The Court ’ s assessment (a) Admissibility 637. The Court takes the view that the applicant ’ s complaint under the procedural aspect of Article 3 raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. Furthermore, the Court has already found that the Government ’ s objection based on non- compliance with the rule of exhaustion of domestic remedies and with the six-month rule should be joined to the merits of this complaint (see paragraph 41 8 above). Consequently, it cannot be considered that the complaint is manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. No other ground for declaring it inadmissible having been established, the complaint must therefore be declared admissible. (b) Merits (i) Applicable general principles deriving from the Court ’ s case-law 638. Where an individual raises an arguable claim that he has suffered treatment infringing Article 3 at the hands of agents of the respondent State or, likewise, as a result of acts performed by foreign officials with that State ’ s acquiescence or connivance, that provision, read in conjunction with the Contracting States ’ general duty under Article 1 of the Convention to “ secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention ”, requires by implication that there should be an effective official investigation. Such investigation should be capable of leading to the identification and – where appropriate – punishment of those responsible. Otherwise, the general legal prohibition of torture and inhuman and degrading treatment and punishment would, despite its fundamental importance, be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity (see, among other examples, Assenov and Others v. Bulgaria, 28 October 1998, § 102, Reports of Judgments and Decisions 1998 ‑ VIII; Ilaşcu and Others, cited above, §§ 318, 442, 449 and 454; El ‑ Masri, cited above, § 182; Al Nashiri v. Poland, cited above, § 485; Husayn (Abu Zubaydah) v. Poland, cited above, § 479; Mocanu and Others v. Romania [GC], nos. 10865/09 and 2 others, § 317, ECHR 2014 (extracts), Cestaro v. Italy, no. 6884/11, §§ 205-208, 7 April 2015; Nasr and Ghali, cited above, § 262; see also Armani Da Silva v. the United Kingdom [GC], no. 5878/08, § 233, ECHR 2016 ). 639. The investigation into serious allegations of ill-treatment must be both prompt and thorough. That means that the authorities must act of their own motion once the matter has come to their attention and must always make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or to use as the basis of their decisions. They must take all reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony and forensic evidence. Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of this standard. The investigation should be independent of the executive. Independence of the investigation implies not only the absence of a hierarchical or institutional connection, but also independence in practical terms. Furthermore, the victim should be able to participate effectively in the investigation in one form or another (see, El-Masri, cited above, §§ 183 ‑ 185; Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, § 167, ECHR 2011; Al Nashiri v. Poland, cited above, § 486; Husayn (Abu Zubaydah) v. Poland, cited above, § 480; and Mocanu and Others, cited above, §§ 321-323 ). 640. Even if there is a strong public interest in maintaining the secrecy of sources of information or material, in particular in cases involving the fight against terrorism, it is essential that as much information as possible about allegations and evidence should be disclosed to the parties in the proceedings without compromising national security. Where full disclosure is not possible, the difficulties that this causes should be counterbalanced in such a way that a party can effectively defend its interests (see Al Nashiri v. Poland, cited above, § § 494-495; and Husayn (Abu Zubaydah) v. Poland, cited above, § § 488-489, both judgments with further references to the Court ’ s case-law ). 641. Furthermore, where allegations of serious human rights violations are involved in the investigation, the right to the truth regarding the relevant circumstances of the case does not belong solely to the victim of the crime and his or her family but also to other victims of similar violations and the general public, who have the right to know what has happened. An adequate response by the authorities in investigating allegations of serious human rights violations may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of impunity, collusion in or tolerance of unlawful acts. For the same reasons, there must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory (see El ‑ Masri, cited above, §§ 191-192; Al Nashiri v. Poland, cited above, § 495; and Husayn (Abu Zubaydah) v. Poland, cited above, § 489, with further references to the Court ’ s case ‑ law ). (ii) Application of the above principles to the present case 642. The Court notes that the respondent Government argued that both the parliamentary inquiry conducted by the Romanian Senate and the criminal investigation instituted by the prosecution had been prompt, thorough, independent and effective, as required by Article 3 of the Convention (see paragraphs 60 6 -61 5 above). It further notes that these two investigations were separated by several years. The Romanian Senate ’ s inquiry was initiated in late December 2005, following the PACE President ’ s appeal of 24 November 2005, asking the Romanian Parliament to investigate the allegations concerning the CIA extraordinary rendition operations in Europe and the disclosures in The Washington Post of 2 November 2005 and the 2005 HRW Statement of 6 November 2005, the latter naming Romania as one of the European countries allegedly hosting CIA secret prisons (see paragraphs 165 -166, 22 6 and 23 6 above). The criminal investigation, initiated by the applicant ’ s criminal complaint, began over some six years and eight months later, in late July 2012 (see paragraphs 17 1 -17 2 above). 643. Given that the parliamentary inquiry commenced within a mere three weeks after the disclosures suggesting that the CIA had run a secret detention site in Romania, it cannot be said that the respondent State failed to give a prompt response to the public allegations of Romania ’ s possible complicity in the CIA HVD Programme. The Court therefore accepts the Government ’ s argument that the reaction of the political bodies was swift and that the Romanian Senate Inquiry Committee ’ s work progressed reasonably quickly, in particular considering the voluminous materials gathered and examined, as well as a number of fact-finding missions carried out (see paragraphs 16 7 and 60 7 above). The work was accomplished within a year, from January 2006 to January 2007, and the deadline for the final report was set for the beginning of March 2007 (see paragraphs 16 5-167 above). The 2007 Romanian Senate Report was published at the beginning of May 2008, although its annexes remained classified which, in the view of the applicant and APADOR-CH, demonstrated a lack of transparency of the parliamentary procedure (see paragraphs 16 5 and 63 1 above). 644. The Court does not find it necessary to establish whether, and if so to what extent, restrictions on public access to the annexes impacted on the adequacy of the Romanian Senate ’ s inquiry. For the Court ’ s assessment the central question is whether that inquiry was capable of “ leading to the identification and punishment of those responsible ”, which is an indispensable element of an “ effective investigation ” for the purposes of Article 3 (see paragraph 6 38 above). The Court has taken into account the applicant ’ s arguments regarding that issue (see paragraph 61 9 above). It has also had regard to the terms of reference of the Romanian Senate ’ s inquiry, which were defined as “ investigating statements regarding the existence of the CIA detention facilities or of some planes leased by the CIA on the territory of Romania ” (see paragraph 16 6 above). These terms of reference were further extended to include certain particular incidents, for instance the accident suffered by plane N478GS on landing in Bucharest on 6 December 2004 (see paragraphs 16 8, 27 5 and 36 2 above). The inquiry focused on eight principal questions regarding the existence of a CIA secret prison in Romania, illegal transfer of detainees, suspicious aircraft and possible participation of the Romanian authorities in the CIA scheme. They were answered in the negative in the 2007 Romanian Senate Report ’ s conclusions, except for the question relating to the need for a parliamentary inquiry (see paragraph 16 9 above). None of those questions concerned the establishment of possible responsibility of State officials in the event of their complicity in the CIA scheme, nor was the inquiry aimed at ensuring, even in general terms, the accountability of those who could have been involved in the execution of the alleged CIA operations in the country. Moreover, as can be seen from the letter of the President of the Romanian Senate to APADOR-CH of 13 October 2008, the inquiry was strictly limited to the issues set out in its terms of reference and did not collect information regarding the purpose of the flights in question (see paragraph 1 70 above). 645. In that connection, the Court would also observe that the investigative work of the Romanian Senate Inquiry Committee overlapped with international inquiries conducted in 2006-2007 by the PACE and the European Parliament (see paragraphs 16 5 -169, 24 6 -26 5 and 26 8 -2 80 above). It can therefore be reasonably assumed that all the simultaneously working bodies of inquiry had similar material at their disposal. For instance, as noted above, the list of twenty-one suspicious flights in the declassified annex to the 2007 Romanian Senate Report included the aircraft identified as carrying out rendition missions in the Fava Report (see paragraphs 27 2 -27 3, 27 6 and 32 7 above). Yet in contrast to the Romanian Senate ’ s categorical conclusions rejecting any possibility of a CIA detention facility having operated in Romania or the flights in question being used for extraordinary rendition, the findings in the 2006 Marty Report and the Fava Report pointed to a number of elements justifying at least a strong suspicion that such a facility had existed in Romania in 2003-2005 and conclusively identified some aircraft that stopped over in Romania as rendition planes (see paragraphs 2 51 -2 56 and 268-276 above). The 2007 EP Resolution expressly, although with regret, called the 2007 Romanian Senate Report ’ s conclusions “ premature and superficial ” (see paragraph 2 80 above). Mr Fava, at the fact-finding hearing pointed out in respect of the Romanian Senate ’ s work that “ it was chosen not to check all the facts and hear all the people who could have provided further elements ”, for instance non ‑ governmental organisations, airport staff or journalists (see paragraph 36 4 above). 646. Having regard to the foregoing and, in particular, to the limited scope of the inquiry, the Court finds that the measures taken by the Romanian Parliament cannot be regarded as an adequate and sufficient response to serious allegations of Romania ’ s implication in the CIA HVD Programme – a scheme which in the light of the widespread public knowledge involved undisclosed detention, torture and ill-treatment of terrorist-suspects. 647. It remains for the Court to determine whether the subsequent criminal investigation met the requirements of Article 3. As noted above, the proceedings began in late July 2012, which was some six years and eight months after the public disclosures indicating Romania ’ s possible complicity in the CIA extraordinary rendition and secret detention operations and over five years after the closure of the parliamentary inquiry. The Government explained that in the light of the 2007 Romanian Senate Report ’ s conclusions, the authorities had had no legal or factual grounds on which to conduct of their own motion a criminal investigation into the same matters. However, following the applicant ’ s criminal complaint, the prosecution had promptly opened an investigation (see paragraph 60 9 above). 648. The Court does not share the Government ’ s point of view. On the contrary, it considers that the extremely grave nature of the allegations of human rights abuses committed during the operation of the HVD Programme and indications of Romania ’ s complicity in the CIA ’ s activities that emerged at the beginning of November 2005 taken together with the subsequent findings as to Romania ’ s possible role in that programme in the Fava Report and the 2006 Marty Report, required of the authorities to act of their initiative instantly, without waiting for a victim to bring the matter to their attention (see paragraph 6 3 9 above). 649. Pursuant to Article 221 of the old CCP, as applicable at the material time, a criminal investigation authority had a duty to take action of its own motion if it had discovered that an offence had been committed (see paragraph 19 6 above). The 2005 HRW Statement explicitly referred to “ extremely serious activities ”, “ incommunicado detention ”, “ torture ” ( describing the waterboarding interrogation technique) and “ mistreatment of detainees ” (see paragraph 22 6 above). In the face of public allegations of such serious criminal activity having been perpetrated on Romania ’ s territory, allegations which on account of the world-wide publicity could not have gone unperceived, the Romanian prosecution authorities had a duty to initiate promptly a criminal investigation into the matter, notwithstanding the conclusions of the parliamentary inquiry (see El-Masri, cited above, § 192; Al Nashiri v. Poland, cited above, § 491; and Husayn (Abu Zubaydah) v. Poland, cited above, § 485). 650. In spite of that duty and despite further disclosures and growing public knowledge of the CIA extraordinary rendition operations – to mention only the publication of the vast CIA declassified materials in 2009-2010 – the authorities remained passive from the finalisation of the 2007 Romanian Senate Report in March 2007 to 20 July 2012, when the applicant ’ s criminal complaint was registered (see paragraph 17 2 above). Having regard to the exceptional gravity and plausibility of the allegations, such delay must be considered inordinate (see Al Nashiri v. Poland, cited above, § 492; and Husayn (Abu Zubaydah) v. Poland, cited above, § 486). The fact that the applicant ’ s criminal complaint was lodged over six years after the closure of Detention Site Black in Romania is not decisive and does not change the Court ’ s conclusion that the authorities bear full responsibility for the significant delay in investigating the matter. As stated above, the information about serious violations of Article 3 possibly occurring in Romania in 2003-2005 which was brought to their knowledge already in November 2005 gave rise ipso facto to an obligation to carry out an effective investigation (see also El-Masri, cited above, § 186). 651. Furthermore, as rightly pointed out by the applicant (see paragraphs 62 1 -62 2 above ), the long delay in opening the criminal investigation most likely diminished the prospects of its effectiveness. For instance, owing to the passage of time, retention periods for storing certain data had already expired between 2008 and 2010. As a result, important aeronautical data was already erased from the records kept by the Romanian authorities (see paragraphs 1 80 -1 81 above). While it is not possible to say with certainty what might have happened had it not been for the culpable delay on the part of the authorities, the authorities ’ inaction can be seen as a factor capable of affecting adversely the process of gathering evidence. It is entirely conceivable that more evidence could have been secured and obtained shortly after the closure of Detention Site Black in Romania if the prosecution authorities, with their full range of powers available under the criminal law – powers which are by definition stronger and more effective than those enjoyed by parliamentary investigative bodies – had decided to act promptly. 652. As regards the procedural activity displayed by the prosecution since May-July 2012, the Government maintained that there had been no undue procrastination and that the investigation had progressed swiftly, account being taken of the exceptional complexity of the case and the US authorities ’ unresponsive attitude to the requests for legal assistance. They added that a number of important procedural steps had been taken, such as taking evidence from a considerable number of witnesses and obtaining information as to the alleged existence of a CIA secret prison and suspicious flights from various Government ministries, State authorities, private companies and airports (see paragraphs 60 9 -6 10 and 61 4-615 above). The applicant argued that the case had lain dormant for the last two years and that since 2013-201 4 no meaningful progress had been achieved, save for taking statements from two witnesses. He also maintained that the authorities had not informed his counsel of the actions taken and that, by their failure to disclose to the public at least some elements, such as the terms of reference of the investigation, had not ensured public scrutiny of the proceedings (see paragraphs 6 20 and 62 2 -62 3 above). 653. The Court does not underestimate the difficulties faced by the Romanian prosecutors in their investigation, involving as it did a complex, secret scheme of rendition and detention with international ramifications, voluminous material from various sources, including classified documents, and last, but not least, issues of national security and cooperation between the Romanian and the US intelligence services. However, as noted above, the passage of time between the events and institution of the proceedings must have inevitably affected the authorities ’ ability to establish all the relevant circumstances and compounded the problems with collecting evidence. The proceedings, which have been pending for over six years, are apparently still directed against persons unknown and no individuals bearing responsibility for Romania ’ s role in the HVD Programme have so far been identified. Neither does it seem – and nor was it pleaded by the Government – that any information from the investigation or about its conduct has been disclosed to the public (see paragraphs 17 1 -1 90 above). 654. In that regard, the Court would emphasise that the securing of proper accountability of those responsible for enabling the CIA to run Detention Site Black on Romanian territory is conducive to maintaining confidence in the adherence by the Romanian State ’ s institutions to the rule of law. The applicant and the public have a right to know the truth regarding the circumstances surrounding the extraordinary rendition and secret detention operations in Romania and to find out what happened at the material time. A victim, such as the applicant in the present case, who had made a credible allegation of being subjected to ill-treatment in breach of Article 3 of the Convention, has the right to obtain an accurate account of the suffering endured and the role of those responsible for his ordeal (see paragraph 6 41 above; see also Association “ 21 December 1989 ” and Others v. Romania, nos. 33810/07 and 18817/08, § 144, 24 May 2011; Al Nashiri v. Poland, cited above, § 495; and Husayn (Abu Zubaydah) v. Poland, cited above, § 487 ). That right has to date been denied to the applicant. 655. Moreover, the importance and gravity of the issues involved require particularly intense public scrutiny of the investigation. The Romanian public has a legitimate interest in being informed of the criminal proceedings and their results. It therefore falls to the national authorities to ensure that, without compromising national security, a sufficient degree of public scrutiny is maintained in respect to the investigation (see Al Nashiri v. Poland, cited above, § 497; and Husayn (Abu Zubaydah) v. Poland, cited above, § 489 ). 656. Having regard to its above findings as to the inadequacy of the parliamentary inquiry and deficiencies in the criminal investigation, the Court considers that Romania has failed to comply with the requirements of a “ prompt ”, “ thorough ” and “ effective ” investigation for the purposes of Article 3 of the Convention. Consequently, the Court dismisses the Government ’ s preliminary objections of non-exhaustion of domestic remedies and non-compliance with the six-month rule (see paragraphs 41 2 -41 8 above) and finds that there has been a violation of Article 3 of the Convention, in its procedural aspect. B. Substantive aspect of Article 3 1. The parties ’ submissions (a) The Government 657. The Government contended that, having regard to Romania ’ s lack of jurisdiction and responsibility under the Convention as invoked above, it was impossible for them to make any observations on the merits of the applicant ’ s complaint under the substantive limb of Article 3 of the Convention. (b) The applicant 658. The applicant submitted that Romania had known or must have known about the CIA ’ s secret detention and extraordinary rendition programme, the secret CIA prison in Romania, and the torture and cruel, inhuman and degrading treatment to which the CIA had subjected high-value detainees as part of this programme. Yet Romania had knowingly and intentionally assisted the CIA in detaining the applicant in Detention Site Black, thereby allowing the CIA to subject him on Romanian territory to treatment in violation of Article 3 of the Convention. 659. In respect of the nature of the ill-treatment inflicted on him in various CIA prisons, the applicant referred to the transcript of the hearing held by the Combatant Status Review Tribunal in Guantánamo on 14 March 2007, as released on 15 June 2016 (see paragraph 12 3 above). At that hearing he had stated that he had continually endured torture in the CIA ’ s hands from the time he had been arrested in mid-October 2002 until his transfer to military custody on 5 September 2006. During that time he had, among other things, been hung upside down for almost a month, subjected to waterboarding on numerous occasions, put inside a box for a week, hit against the wall, kept in stressful positions, subjected to nudity, held in stressful and painful positions, beaten, abused and ill-treated in many other ways. 660. As regards the ill-treatment inflicted on him in Romania, the applicant underlined that because of the unprecedented secrecy associated with CIA detention and rendition operations, the publicly available information was scarce and incomplete. Moreover, as he had already submitted, he had been deprived of any possibility of giving a direct account of his ordeal to the Court. However, it had transpired from the CIA declassified documents and the 2014 US Senate Committee Report that it was in Bucharest, in May 2004, where he was subjected to rectal feeding after he had tried to go on hunger strike. The 2014 US Senate Committee Report described rectal feeding as a practice applied by the CIA on detainees “ without evidence of medical necessity ” and as a means of “ behaviour control ”. It had been in Bucharest where the applicant had been subjected to all of the standard abusive conditions of CIA detention: incommunicado solitary confinement, blindfolds and hooding, forced shaving, continuous noise, continuous light and leg shackling. It had been at Detention Site Black where during the first months of their detention CIA prisoners had been subjected to sleep deprivation, doused with water and slapped or forced to stand in painful positions. Moreover, he had inevitably faced the constant fear that the torture inflicted on him in Poland and other previous places of secret detention would be inflicted on him again, leaving him in a state of permanent anxiety caused by complete uncertainty about his fate at the hands of the CIA. 661. The applicant submitted that the Court had expressly recognised this form of ill-treatment in Abu Zubaydah v. Poland as being in breach of Article 3. Indeed, torture and prisoner abuse had been the hallmark, the standard operating procedure of the CIA secret detention programme. The predictability of the fate of the detainees under the programme gave sufficient grounds to believe that the applicant had been abused and ill ‑ treated in Romania, as well as after his transfer from the country. 662. Torture and ill-treatment endured by the applicant had caused him significant damage, as confirmed by his above statement given before the Combatant Stratus Review Tribunal and the fact that, as a result of his experiences during his secret detention, he had suffered from Post-Traumatic Stress Syndrome. 663. Lastly, the applicant contended that in the light of the Court ’ s case ‑ law, Romania had a positive obligation under Article 3 to protect him from treatment in violation of that provision on its territory and to prevent his transfer from Romania to other CIA secret detention facilities, thus exposing him to further, continuing violations of Article 3. Romania ’ s failure to stop or prevent the violations of his rights had amounted to a breach of that provision. 2. The Court ’ s assessment (a) Admissibility 664. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. (b) Merits (i) Applicable general principles deriving from the Court ’ s case-law 665. Article 3 of the Convention enshrines one of the most fundamental values of democratic societies. Unlike most of the substantive clauses of the Convention, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 § 2 even in time of war or other public emergency threatening the life of the nation (see, among many other examples, Soering, cited above, § 88; Selmouni v. France, cited above, § 95; Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000 ‑ IV; Ilaşcu and Others, cited above, § 424; Shamayev and Others v. Georgia and Russia, no. 36378/02, § 375, ECHR 2005 ‑ III; El ‑ Masri, cited above, § 195; see also Al-Adsani v. the United Kingdom [GC], no. 35763/97, § § 26-31, ECHR 2001 ‑ XI). Even in the most difficult circumstances, such as the fight against terrorism and organised crime, the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the conduct of the person concerned (see Chahal v. the United Kingdom, 15 November 1996, § 79, Reports 1996-V; see Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000 ‑ IV; Öcalan v. Turkey [GC], no. 46221/99, § 179 ECHR 2005 ‑ IV; El-Masri, cited above, § 195; Al Nashiri v. Poland, cited above, § 507; Husayn (Abu Zubaydah) v. Poland, cited above, § 499; and Nasr and Ghali, cited above, § 280). 666. In order for ill-treatment to fall within the scope of Article 3 it must attain a minimum level of severity. The assessment of this minimum depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see Ireland v. the United Kingdom, cited above, § 162; Kudła v. Poland [GC], no. 30210/96, § 92, ECHR 2000 ‑ XI; and Jalloh v. Germany, cited above, § 67). Further factors include the purpose for which the treatment was inflicted together with the intention or motivation behind it (compare, inter alia, Aksoy v. Turkey, 18 December 1996, § 64, Reports 1996-VI; Egmez v. Cyprus, no. 30873/96, § 78, ECHR 2000-XII; Krastanov v. Bulgaria, no. 50222/99, § 53, 30 September 2004; and El ‑ Masri, cited above, § 196). Treatment has been held by the Court to be “ inhuman ” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering, and also “ degrading ” because it was such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them (see Labita, cited above, § 120). In order to determine whether any particular form of ill-treatment should be classified as torture, the Court must have regard to the distinction drawn in Article 3 between this notion and that of inhuman or degrading treatment. This distinction would appear to have been embodied in the Convention to allow the special stigma of “ torture ” to attach only to deliberate inhuman treatment causing very serious and cruel suffering (see Aksoy, cited above, § 62). In addition to the severity of the treatment, there is a purposive element, as recognised in the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which came into force on 26 June 1987, which defines torture in terms of the intentional infliction of severe pain or suffering with the aim, inter alia, of obtaining information, inflicting punishment or intimidating (Article 1 of the United Nations Convention) (see İlhan v. Turkey [GC], no. 22277/93, § 85, ECHR 2000 ‑ VII; El-Masri, cited above, § 197; Al Nashiri v. Poland, cited above, § 508; and Husayn (Abu Zubaydah ) v. Poland, cited above, § 500). 667. Furthermore, a threat of conduct prohibited by Article 3, provided it is sufficiently real and immediate, may fall foul of that provision. Thus, to threaten an individual with torture may constitute at least inhuman treatment (see Gäfgen v. Germany [GC], no. 22978/05, § 91, ECHR 2010; and Husayn (Abu Zubaydah ) v. Poland, cited above, § 501). 668. The obligation on the High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment or punishment, including such ill-treatment administered by private individuals (see A. v. the United Kingdom, 23 September 1998, § 22, Reports of Judgments and Decisions 1998 ‑ VI and Z. and Others v. the United Kingdom [GC], no. 29392/95, § 73, ECHR 2001 ‑ V). The State ’ s responsibility may therefore be engaged where the authorities fail to take reasonable steps to avoid a risk of ill-treatment about which they knew or ought to have known (see Mahmut Kaya v. Turkey, no. 22535/93, § 115, ECHR 2000 ‑ III; El-Masri, cited above, § 198; Al Nashiri v. Poland, § 509; and Husayn (Abu Zubaydah ) v. Poland, cited above, § 502; and Nasr and Ghali, cited above, § 283 ). (ii) Application of the above principles to the present case 669. The Court has already found that the applicant ’ s allegations concerning his secret detention in Romania from 12 April 2004 to 6 October 2005 or, at the latest, 5 November 2005 and his transfer from Romania to another CIA black site on one of those latter dates have been proved before the Court and that those facts are established beyond reasonable doubt (see paragraphs 5 31 -54 2 above). It remains to be determined whether the treatment to which he was subjected during his detention falls within the ambit of Article 3 of the Convention and, if so, whether and to what extent it can be attributed to the respondent State (see paragraphs 5 91 -60 2 above ). ( α ) Treatment to which the applicant was subjected at the relevant time 670. In the light of the material in its possession the Court has already found that it does not appear that at Detention Site Black the applicant was subjected to EITs in connection with interrogations (see paragraphs 54 5 -54 6 above). However, it has established beyond reasonable doubt that during his detention in Romania the applicant was kept – as any other CIA detainee – under the regime of “ standard conditions of confinement ” laid down in the DCI Confinement Guidelines. That regime included, as a matter of fixed, predictable routine, the blindfolding or hooding of detainees, which was designed to disorient them and keep them from learning of their location or the layout of the detention facility; removal of hair upon arrival at the site; incommunicado, solitary confinement; continuous noise of high and varying intensity played at all times; continuous light such that each cell was illuminated to about the same brightness as an office; and use of leg shackles in all aspects of detainee management and movement (see paragraphs 5 6 -5 8 and 54 7 above). The conditions of confinement were an integral part of the CIA interrogation scheme and served the same purposes as interrogation measures, namely to “ dislocate psychologically ” the detainee, to “ maximise his feeling of vulnerability and helplessness ” and “ reduce or eliminate his will to resist ... efforts to obtain critical intelligence ” (see paragraphs 4 2, 5 3 and 5 6 -5 8 above). 671. A complementary description of the applicant ’ s conditions of detention throughout the entire period that he spent in CIA custody can also be found in the 2007 ICRC Report. According to that description, based on the applicant ’ s own account and on that of thirteen other high-value detainees, they “ had no knowledge of where they were being held, no contact with persons other than their interrogators or guards ”; and “ even the guards were usually masked and, other than the absolute minimum, did not communicate in any way with detainees ”. None of the detainees “ had any real – let alone regular – contact with other persons detained, other than occasionally for the purposes of inquiry when they were confronted with another detainee ”. They had “ no access to news from the outside world, apart from the later stages of their detention when some of them occasionally received printouts of sports news from the Internet and one reported receiving newspapers ”. The situation was further exacerbated by other aspects of the detention regime, such as deprivation of access to open air and exercise, lack of appropriate hygiene facilities and deprivation of basic items in pursuance of interrogations (see paragraph 29 3 above). 672. Referring to the general situation in the CIA secret prisons, the 2014 US Senate Committee Report states that “ the conditions of confinement for CIA detainees were harsher that the CIA represented to the policymakers and others ” and describes them as being “ poor ” and “ especially bleak early in the programme ” (see paragraph 8 5 above). It further states that in respect of the conditions of detention the DCI Confinement Guidelines of 28 January set forth minimal standards and required only that the facility be sufficient to meet “ basic health needs ”. That, according to the report meant in practice that a facility in which detainees were kept shackled in complete darkness and isolation, with a bucket for human waste and without heat during the winter months, met that standard (see paragraph 5 6 above). 673. As regards the impact of the regime on the CIA detainees, the 2014 US Senate Committee Report states that “ multiple CIA detainees who were subjected to the CIA ’ s enhanced interrogation techniques and extended isolation exhibited psychological and behavioral issues, including hallucinations, paranoia insomnia and attempts at self-harm and self ‑ mutilation ” and that “ multiple psychologists identified the lack of human contact experienced by detainees as a cause of psychiatric problems ” (see paragraph 8 5 above). In the CIA ’ s declassified documents, adverse effects of extreme isolation to which HVDs were subjected have been recognised as imposing a “ psychological toll ” and capable of altering “ the detainee ’ s ability to interact with others ” (see paragraph 5 8 above). 674. As regards the applicant ’ s situation during his detention at Detention Site Black, the 2014 US Senate Committee Report confirms that in May 2004, following his hunger strike, the CIA “ responded by force feeding him rectally ” (see paragraphs 12 6 and 15 8 above). Also, according to the report, he clearly suffered serious psychological problems resulting from treatment inflicted on him during his detention, such as “ outbursts ” during debriefings ” and a “ continued state of depression ”. He displayed behaviour described as “ unpredictable ”, “ disruptive ” and “ repeated belligerent acts ”. In July 2005 he was assessed as being “ on the verge of a breakdown ” (see paragraphs 12 7 and 15 8 above). 675. For the purposes of its ruling the Court does not find it necessary to analyse each and every aspect of the applicant ’ s treatment in detention, the physical conditions in which he was detained in Romania, or the conditions in which he was transferred to and out of Romania. The predictability of the CIA ’ s regime of confinement and treatment routinely applied to the high ‑ value detainees give sufficient grounds for the Court to conclude that the above - described standard measures were used in respect of the applicant in Romania and likewise elsewhere, following his transfer from Romania, as an integral part of the HVD Programme (see also Al Nashiri v. Poland, cited above, §§ 514-515). Considering all the elements, the Court finds that during his detention in Romania the applicant was subjected to an extremely harsh detention regime, including a virtually complete sensory isolation from the outside world, and suffered from permanent emotional and psychological distress and anxiety caused by the past experience of torture and cruel treatment in the CIA ’ s hands and fear of his future fate. Even though during that period he had not been subjected to interrogations with the use of the harshest methods but “ debriefings ”, the applicant – having beforehand experienced the most brutal torture, for instance waterboarding, mock executions, hanging upside down and prolonged confinement in a box (see Al Nashiri v. Poland, cited above, §§ 86-89, 99-102, 401 and 416-417) – inevitably faced the constant fear that, if he failed to “ comply ”, the previous cruel treatment would at any given time be inflicted on him again. Thus, Article 3 of the Convention does not refer exclusively to the infliction of physical pain but also to that of mental suffering, which is caused by creating a state of anguish and stress by means other than bodily assault (see El-Masri, cited above, § 202; and Husayn (Abu Zubaydah) v. Poland, cited above, § § 509 ‑ 510). Consequently, having regard to the treatment to which the applicant must have been subjected and its cumulative effects on him, the Court finds that it is to be characterised as intense physical and mental suffering falling within the notion of “ inhuman treatment ” under Article 3 of the Convention (see paragraph 665 above). ( β ) Court ’ s conclusion as to Romania ’ s responsibility 676. The Court has already found that Romania knew of the nature and purposes of the CIA ’ s activities on its territory at the material time and cooperated in the preparation and execution of the CIA extraordinary rendition, secret detention and interrogation operations on Romanian territory. It has also found that, given its knowledge and its involvement in the execution of the HVD Programme Romania knew that, by enabling the CIA to detain terrorist-suspects on its territory, it was exposing them to a serious risk of treatment contrary to the Convention (see paragraph 5 89 above). 677. It is true that in the assessment of the experts – which the Court accepts – the Romanian authorities did not know the details of what exactly happened inside Detention Site Black or witnessed treatment to which the CIA ’ s detainees were subjected. The running of the detention facility was entirely in the hands of and controlled by the CIA. It was the CIA personnel who were responsible for the physical conditions of confinement, interrogations, debriefings, ill-treatment and inflicting torture on detainees (see paragraphs 34 4, 3 80, 38 4 and 58 7 above). However, under Article 1 of the Convention, taken together with Article 3, Romania was required to take measures designed to ensure that individuals within its jurisdiction were not subjected to torture or inhuman or degrading treatment or punishment, including ill-treatment administered by private individuals (see paragraph 66 8 above) Notwithstanding the above Convention obligation, Romania, for all practical purposes, facilitated the whole process of the operation of the HVD Programme on its territory, created the conditions for it to happen and made no attempt to prevent it from occurring. As found above, on the basis of their own knowledge of the CIA activities deriving from Romanian ’ s complicity in the HVD Programme and from publicly accessible information on treatment applied in the context of the “ war on terror ” to terrorist suspects in US custody the authorities – even if they did not see or participate in the specific acts of ill-treatment and abuse endured by the applicant and other HVDs – must have been aware of the serious risk of treatment contrary to Article 3 occurring in the CIA detention facility on Romanian territory. Accordingly, Romania, on account of its “ acquiescence and connivance ” in the HVD Programme must be regarded as responsible for the violation of the applicant ’ s rights under Article 3 of the Convention committed on its territory (see paragraph 59 4 above; see also El-Masri, cited above, §§ 206 and 211; Al Nashiri v. Poland, cited above, § 517; and Husayn (Abu Zubaydah) v. Poland, cited above, § 512 ). 678. Furthermore, Romania was aware that the transfer of the applicant to and from its territory was effected by means of “ extraordinary rendition ”, that is, “ an extrajudicial transfer of persons from one jurisdiction or State to another, for the purposes of detention and interrogation outside the normal legal system, where there was a real risk of torture or cruel, inhuman or degrading treatment ” (see El-Masri, cited above, § 221; Al Nashiri v Poland, cited above, § 518; and Husayn (Abu Zubaydah) v. Poland, cited above, § 513 ). In these circumstances, the possibility of a breach of Article 3 was particularly strong and should have been considered intrinsic in the transfer (see paragraph 59 5 above). Consequently, by enabling the CIA to transfer the applicant out of Romania to another detention facility, the authorities exposed him to a foreseeable serious risk of further ill-treatment and conditions of detention in breach of Article 3 of the Convention. 679. There has accordingly been a violation of Article 3 of the Convention, in its substantive aspect. V. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION 680. The applicant complained that Romania had enabled the CIA to hold him on its territory in secret, unacknowledged detention, which had been imposed and implemented outside any legal procedures. Moreover, by enabling the CIA to transfer him from Romanian territory to other secret CIA detention facilities elsewhere, it had exposed him to a real and serious of risk of further undisclosed detention. He alleged a breach of Article 5 of the Convention, which reads as follows: “ 1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court; (b) the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; (d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority; (e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition. 2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him. 3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial. 4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. 5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation. ” A. The parties ’ submissions 1. The Government 681. The Government reiterated their position that Romania lacked jurisdiction and refrained from making any observations on the admissibility and merits of the complaint. 2. The applicant 682. The applicant submitted that his secret detention in Romania had violated Article 5 § 1 because it had not been “ in accordance with a procedure prescribed by law ”. Romania had entered into an agreement with the CIA to permit it to fly in and secretly detain detainees, including the applicant on Romanian territory. It had also provided extraordinary security cover for these secret detention operations. He underlined that the Court had repeatedly held, including in El-Masri (cited above), that unacknowledged detention was a “ complete negation ” of Article 5 guarantees and “ a most grave violation of article 5 ”. The Grand Chamber had further reiterated in El-Masri that “ Article 5 of the Convention laid down an obligation on the State not only to refrain from active infringements of the rights in question, but also to take appropriate steps to provide protection against an unlawful interference with those rights to everyone in its jurisdiction ”. 683. The respondent State had known and should have known that the applicant had not received any legal process for his detention in the light of the extraordinary secrecy associated with the CIA ’ s rendition and detention operations. It had been on notice of the secret detention of prisoners from its own negotiations concerning the hosting of a detention facility with the US authorities, as well as from public sources and its diplomatic missions. Yet Romania had assisted the CIA secret detention operations, including by providing a detention site and extraordinary security cover for the CIA and maintaining the secrecy associated with these operations. It had also failed to take measures to protect the applicant from incommunicado detention while he had been on Romanian territory. Accordingly, Romania had violated his rights under Article 5 of the Convention. 684. Moreover, Romania ’ s participation in the applicant ’ s transfer from the country had exposed him to the further continuing risk of incommunicado detention in violation of Article 5 § 1. Romania had known and should have known that the CIA had been likely to continue to subject its prisoners – including the applicant – to incommunicado detention after their transfer from Romanian territory. By failing to meet its positive obligation to protect him from detention in violation of Article 5 and knowingly and intentionally participating in his transfer despite the above risk Romania was responsible for the length of arbitrary detention he had endured after being transferred from its territory. B. The Court ’ s assessment 1. Admissibility 685. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 2. Merits (a) Applicable general principles deriving from the Court ’ s case-law 686. The guarantees contained in Article 5 are of fundamental importance for securing the right of individuals in a democracy to be free from arbitrary detention at the hands of the authorities. It is for that reason that the Court has repeatedly stressed in its case-law that any deprivation of liberty must not only have been effected in conformity with the substantive and procedural rules of national law but must equally be in keeping with the very purpose of Article 5, namely to protect the individual from arbitrariness (see Chahal, cited above, § 118; and El-Masri, cited above, § 230 ). This insistence on the protection of the individual against any abuse of power is illustrated by the fact that Article 5 § 1 circumscribes the circumstances in which individuals may be lawfully deprived of their liberty, it being stressed that these circumstances must be given a narrow interpretation having regard to the fact that they constitute exceptions to a most basic guarantee of individual freedom (see Quinn v. France, 22 March 1995, § 42, Series A no. 311; and El-Masri, cited above, § 230 ). 687. It must also be stressed that the authors of the Convention reinforced the individual ’ s protection against arbitrary deprivation of his or her liberty by guaranteeing a corpus of substantive rights which are intended to minimise the risks of arbitrariness, by allowing the act of deprivation of liberty to be amenable to independent judicial scrutiny and by securing the accountability of the authorities for that act. The requirements of Article 5 §§ 3 and 4 with their emphasis on promptness and judicial supervision assume particular importance in this context. Prompt judicial intervention may lead to the detection and prevention of life-threatening measures or serious ill-treatment which violate the fundamental guarantees contained in Articles 2 and 3 of the Convention (see Aksoy, cited above, § 76). What is at stake is both the protection of the physical liberty of individuals and their personal security in a context which, in the absence of safeguards, could result in a subversion of the rule of law and place detainees beyond the reach of the most rudimentary forms of legal protection (see El-Masri, cited above, § 231; Al Nashiri v. Poland, cited above, § 528; Husayn (Abu Zubaydah) v. Poland, cited above, § 522; and Nasr and Ghali, cited above, § 297 ). 688. Although the investigation of terrorist offences undoubtedly presents the authorities with special problems, that does not mean that they have carte blanche under Article 5 to arrest suspects and detain them in police custody, free from effective control by the domestic courts and, in the final instance, by the Convention ’ s supervisory institutions, whenever they consider that there has been a terrorist offence (see Aksoy, cited above, § 78; and El-Masri, cited above, § 232 ). The Court emphasises in this connection that the unacknowledged detention of an individual is a complete negation of these guarantees and a most grave violation of Article 5. Having assumed control over an individual, the authorities have a duty to account for his or her whereabouts. For this reason, Article 5 must be seen as requiring the authorities to take effective measures to safeguard against the risk of disappearance and to conduct a prompt effective investigation into an arguable claim that a person has been taken into custody and has not been seen since (see Kurt v Turkey, 25 May 1998, § § 123-124, Reports of Judgments and Decisions 1998 ‑ III; and El-Masri, cited above, § 233; see also Al Nashiri v. Poland, cited above, § 529; Husayn (Abu Zubaydah) v. Poland, cited above, § 523; and Nasr and Ghali, cited above, § 298 ). (b) Application of the above principles to the present case 689. In the previous cases concerning similar allegations of a breach of Article 5 arising from secret detention under the CIA HVD Programme in other European countries the Court found that the respondent States ’ responsibility was engaged and that they were in violation of that provision on account of their complicity in that programme and cooperation with the CIA (see El-Masri, cited above, § 241; Al Nashiri v. Poland, cited above, §§ 531-532; Husayn (Abu Zubaydah) v. Poland, cited above, §§ 525-526; and Nasr and Ghali, cited above, §§ 302-303). The Court does not see any reason to hold otherwise in the present case. 690. As the Court has held in Al Nashiri v. Poland (cited above, § 530 ) and Husayn (Abu Zubaydah) v. Poland (cited above, § 524), secret detention of terrorist suspects was a fundamental feature of the CIA rendition programme. The rationale behind the programme was specifically to remove those persons from any legal protection against torture and enforced disappearance and to strip them of any safeguards afforded by both the US Constitution and international law against arbitrary detention, to mention only the right to be brought before a judge and be tried within a reasonable time or the habeas corpus guarantees. To this end, the whole scheme had to operate outside the jurisdiction of the US courts and in conditions securing its absolute secrecy, which required setting up, in cooperation with the host countries, overseas detention facilities (see also paragraphs 2 2-23, 2 8 - 59, 62 and 7 8 -9 7 above ). The rendition operations had largely depended on the cooperation, assistance and active involvement of the countries which put at the USA ’ s disposal their airspace, airports for the landing of aircraft transporting CIA prisoners, and facilities in which the prisoners could be securely detained and interrogated and ensured the secrecy and smooth operation of the HVD Programme. While, as noted above, the interrogations of captured terrorist suspects was the CIA ’ s exclusive responsibility and the local authorities were not to be involved, the cooperation and various forms of assistance provided by those authorities, such as customising the premises for the CIA ’ s needs, ensuring security and providing the logistics were the necessary condition for the effective operation of the CIA secret detention facilities (see Al Nashiri v. Poland, cited above, § 530; and Husayn (Abu Zubaydah) v. Poland, cited above, § 524 ). 691. In respect of the applicant ’ s complaint under the substantive aspect of Article 3 the Court has already found that Romania was aware that he had been transferred from its territory by means of “ extraordinary rendition ” and that the Romanian authorities, by enabling the CIA to transfer the applicant to its other secret detention facilities, exposed him to a foreseeable serious risk of further ill-treatment and conditions of detention in breach of Article 3 of the Convention (see paragraph 6 78 above). These conclusions are likewise valid in the context of the applicant ’ s complaint under Article 5. In consequence, Romania ’ s responsibility under the Convention is engaged in respect of both the applicant ’ s secret detention on its territory and his transfer from Romania to CIA detention elsewhere. 692. There has accordingly been a violation of Article 5 of the Convention. VI. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 693. The applicant further complained that Romania had violated his rights under Article 8 by enabling the CIA to ill-treat and detain him incommunicado on its territory and to deprive him of any contact with his family. Article 8 of the Convention reads as follows: “ 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. ” A. The parties ’ submissions 1. The Government 694. The Government restated their position that Romania lacked jurisdiction and responsibility under the Convention. They refrained from making any observations on the admissibility and merits of the complaint. 2. The applicant 695. The applicant contended that his incommunicado secret detention in Romania with no access to or contact with his family had violated Article 8 of the Convention. Romania had known or must have known from public sources and its diplomatic missions of the possible torture, abuse and secret detention of the US terrorist suspects. Nonetheless, it had agreed to host a secret CIA prison and provide security for the CIA ’ s secret detention and rendition operations. Romania had known or must have known that detainees like the applicant had been deprived of access to their family as it had helped maintain secrecy regarding these operations. Clearly, a secret prison outside the law did not allow for family visits. By participating in the CIA ’ s secret detention of prisoners and failing to take measures to protect the applicant from such detention without access to his family while he had been on Romanian territory, Romania had violated his rights under Article 8. B. The Court ’ s assessment 1. Admissibility 696. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 2. Merits 697. The notion of “ private life ” is a broad one and is not susceptible to exhaustive definition; it may, depending on the circumstances, cover the moral and physical integrity of the person. These aspects of the concept extend to situations of deprivation of liberty (see El-Masri, cited above, § 248, with further references to the Court ’ s case-law; Al Nashiri v. Poland, cited above, § 538; and Husayn (Abu Zubaydah) v. Poland, cited above, § 532 ). Article 8 also protects a right to personal development, the right to establish and develop relationships with other human beings and the outside world. A person should not be treated in a way that causes a loss of dignity, as “ the very essence of the Convention is respect for human dignity and human freedom ” (see Pretty v. the United Kingdom, no. 2346/02, §§ 61 and 65, ECHR 2002 - III). Furthermore, the mutual enjoyment by members of a family of each other ’ s company constitutes a fundamental element of family. In that context, the Court would also reiterate that an essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities (see El-Masri, cited above, § 248; Al Nashiri v. Poland, ibid.; and Husayn (Abu Zubaydah) v. Poland, ibid. ). 698. Having regard to its conclusions concerning the respondent State ’ s responsibility under Articles 3 and 5 of the Convention (see paragraphs 676 ‑ 67 9 and 69 1 above), the Court is of the view that Romania ’ s actions and omissions in respect of the applicant ’ s detention and transfer likewise engaged its responsibility under Article 8 of the Convention. Considering that the interference with the applicant ’ s right to respect for his private and family life occurred in the context of the imposition of fundamentally unlawful, undisclosed detention, it must be regarded as not “ in accordance with the law ” and as inherently lacking any conceivable justification under paragraph 2 of that Article (see El-Masri, cited above, § 249; Al Nashiri v. Poland, cited above, § 539, and Husayn (Abu Zubaydah) v. Poland, cited above, § 533 ). 699. There has accordingly been a violation of Article 8 of the Convention. VII. ALLEGED VIOLATION OF ARTICLE 13 IN CONJUNCTION WITH ARTICLES 3, 5 AND 8 OF THE CONVENTION 700. The applicant complained that Romania had been in breach of Article 13 of the Convention, taken separately and in conjunction with Articles 3, 5 and 8 on account of having failed to carry out an effective, prompt and thorough investigation into his allegations of serious violations of Articles 3, 5 and 8 of the Convention. Article 13 of the Convention reads as follows: “ Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity. ” A. The parties ’ submissions 701. The parties essentially reiterated their observations concerning the procedural aspect of Article 3 of the Convention. 702. The Government maintained that that the parliamentary inquiry and criminal investigation had been thorough and effective and had, therefore, met the requirements of an “ effective remedy ” for the purposes of Article 13 of the Convention. 703. The applicant disagreed and said that the investigation had been initiated after a considerable delay and with marked reluctance on the part of the Romanian authorities Despite the fact that the investigation had been pending for over five years, no meaningful progress had been achieved. B. The Court ’ s assessment 1. Admissibility 704. The Court notes that this complaint is linked to the complaint under the procedural aspect of Article 3, which has been found admissible (see paragraph 6 37 above). It must likewise be declared admissible. 2. Merits (a) Applicable general principles deriving from the Court ’ s case-law 705. Article 13 guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of this Article is thus to require the provision of a domestic remedy allowing the competent national authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their obligations under this provision. The scope of the obligation under Article 13 varies depending on the nature of the applicant ’ s complaint under the Convention. Nevertheless, the remedy required by Article 13 must be “ effective ” in practice as well as in law, in particular in the sense that its exercise must not be unjustifiably hindered by the acts or omissions of the authorities of the respondent State (see, among other authorities, Kaya v. Turkey, 19 February 1998, § 106, Reports of Judgments and Decisions 1998 ‑ I; and Mahmut Kaya, cited above, § 124). 706. Where an individual has an arguable claim that he has been ill ‑ treated by agents of the State, the notion of an “ effective remedy ” entails, in addition to the payment of compensation where appropriate, a procedure enabling a thorough and effective investigation capable of leading to the identification and punishment of those responsible and including effective access for the complainant to the investigatory procedure (see Anguelova v. Bulgaria, no. 38361/97, §§ 161-162, ECHR 2002; Assenov and Others, cited above, §§ 114 et seq.; Aksoy, cited above, §§ 95 and 98; and El-Masri, cited above, § 255). 707. The requirements of Article 13 are broader than a Contracting State ’ s obligation under Articles 3 and 5 to conduct an effective investigation into the disappearance of a person who has been shown to be under their control and for whose welfare they are accordingly responsible (see El-Masri, cited above, § 255, with further references to the Court ’ s case-law). 708. Given the irreversible nature of the harm that might occur if the risk of ill-treatment materialised and the importance the Court attaches to Article 3, the notion of an effective remedy under Article 13 requires independent and rigorous scrutiny of the claim of, or on behalf of, the individual concerned that there exist substantial grounds for fearing a real risk of treatment contrary to Article 3. This scrutiny must be carried out without regard to what the person may have done to warrant his expulsion or to any perceived threat to the national security of the State from which the person is to be removed (see Chahal, cited above, § 151; and El-Masri, cited above, § 257; see also Al Nashiri v. Poland, cited above, §§ 546-548; and Husayn (Abu Zubaydah) v. Poland, cited above, §§ 540-543 ). (b) Application of the above principles to the present case 709. The Court has already concluded that the respondent State is responsible for violations of the applicant ’ s rights under Articles 3, 5 and 8 of the Convention (see paragraphs 676-67 9, 69 1 and 69 8 above). The complaints under these Articles are therefore “ arguable ” for the purposes of Article 13 and that he should accordingly have been able to avail himself of effective practical remedies capable of leading to the identification and punishment of those responsible and to an award of compensation, as required by that provision (see paragraph 705 above; see also El-Masri, cited above, § 259; Al Nashiri v. Poland, cited above, § 550; and Husayn (Abu Zubaydah) v. Poland, cited above, § 544 ). For the reasons set out in detail above, the Court has found that the criminal investigation in Romania fell short of the standards of the “ effective investigation ” that should have been carried out in accordance with Article 3 ( see paragraph 65 6 above). In these circumstances, the remedy relied on by the Government (see paragraphs 41 2 -41 3 above) cannot be regarded as “ effective ” in practice. For the reasons that prompted the Court to dismiss the Government ’ s preliminary objection of non-exhaustion of domestic remedies (see paragraphs 64 2 -65 6 above), the Court must also find that the requirements of Article 13 of the Convention were not satisfied in the present case and that the applicant did not have available to him in Romania an “ effective remedy ” to ventilate his claims of a violation of Articles 3, 5 and 8 of the Convention. 710. Consequently, there has been a violation of Article 13, taken in conjunction with Articles 3, 5 and 8 of the Convention. VIII. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 711. The applicant complained that Romania, by enabling the CIA to transfer him from its territory, had exposed to him to a real and serious risk of being transferred to a jurisdiction where he would be subjected to a flagrantly unfair trial, in breach of Article 6 § 1 of the Convention. That provision, in so far as relevant, reads as follows: “ In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial by an independent and impartial tribunal established by law. ” A. The parties ’ submissions 1. The Government 712. The Government reiterated their position that Romania lacked jurisdiction and refrained from making observations on the admissibility and merits of the complaint. 2. The applicant 713. The applicant maintained that by the time of his transfer from Romania, the Romanian authorities had known or must have known that there were substantial grounds for believing that he had faced a real risk of being subjected to a flagrant denial of justice. The deficiencies of the military commission rules applicable to terrorist - suspects in US custody at that time had been publicly criticised by the Council of Europe, the Human Rights Chamber for Bosnia and Herzegovina, various non-governmental organisations and also in news reports. The US Government had also published documents detailing the rules for military commissions under which the applicant was likely to be tried. The military commissions had been flagrantly unfair because they had not been sufficiently independent and impartial, had been contrary to US law and discriminatory, had admitted evidence obtained from torture and inhuman and degrading treatment, had not respected the principle of equality of arms, had not been public and had admitted hearsay evidence. Despite knowing the flagrant unfairness of the US military commissions which would be likely to try the applicant, Romania had assisted in his transfer out of its territory. 714. Although military commission rules applicable to the applicant had changed since the time he had been transferred from Romania, they retained a number of deficiencies which, especially when considered in the context of a death penalty case, cumulatively amounted to a flagrant denial of justice under Article 6 of the Convention. B. The Court ’ s assessment 1. Admissibility 715. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 2. Merits (a) Applicable general principles deriving from the Court ’ s case-law 716. In the Court ’ s case-law, the term “ flagrant denial of justice ” is synonymous with a trial which is manifestly contrary to the provisions of Article 6 or the principles embodied therein (see, among other examples, Sejdovic v. Italy [GC], no. 56581/00, § 84, ECHR 2006 ‑ II, and Othman (Abu Qatada), cited above, § 258 ). In Othman (Abu Qatada ), citing many examples from its case-law, the Court referred to certain forms of unfairness that could amount to a flagrant denial of justice. These include conviction in absentia with no subsequent possibility to obtain a fresh determination of the merits of the charge; a trial which is summary in nature and conducted with a total disregard for the rights of the defence; detention without any access to an independent and impartial tribunal to have the legality of the detention reviewed, and deliberate and systematic denial of access to a lawyer, especially for an individual detained in a foreign country (ibid. § 259). In other cases, the Court has also attached importance to the fact that if a civilian has to appear before a court composed, even only in part, of members of the armed forces taking orders from the executive, the guarantees of impartiality and independence are open to serious doubt (see Incal v. Turkey, 9 June 1998, § § 68 et seq. Reports of Judgments and Decisions 1998 ‑ IV, and Öcalan, cited above, § 112). 717. However, “ flagrant denial of justice ” is a stringent test of unfairness. A flagrant denial of justice goes beyond mere irregularities or lack of safeguards in the trial procedures such as might result in a breach of Article 6 if occurring within the Contracting State itself. What is required is a breach of the principles of fair trial guaranteed by Article 6 which is so fundamental as to amount to a nullification, or destruction of the very essence, of the right guaranteed by that Article (see Othman (Abu Qatada), cited above, § 260 ) 718. The Court has taken a clear, constant and unequivocal position on the admission of torture evidence. No legal system based upon the rule of law can countenance the admission of evidence – however reliable – which has been obtained by such a barbaric practice as torture. The trial process is a cornerstone of the rule of law. Torture evidence irreparably damages that process; it substitutes force for the rule of law and taints the reputation of any court that admits it. Torture evidence is excluded in order to protect the integrity of the trial process and, ultimately, the rule of law itself. The prohibition of the use of torture is fundamental (see Othman (Abu Qatada, cited above, § § 264-265). Statements obtained in violation of Article 3 are intrinsically unreliable. Indeed, experience has all too often shown that the victim of torture will say anything – true or not – as the shortest method of freeing himself from the torment of torture (see Söylemez v. Turkey, no. 466 61/99, § 122, 21 September 2006; and Othman (Abu Qatada), cited above, § 264). The admission of torture evidence is manifestly contrary, not just to the provisions of Article 6, but to the most basic international standards of a fair trial. It would make the whole trial not only immoral and illegal, but also entirely unreliable in its outcome. It would, therefore, be a flagrant denial of justice if such evidence were admitted in a criminal trial ( see Othman (Abu Qatada), cited above, § 267; see also Al Nashiri v. Poland, cited above, § 564; and Husayn (Abu Zubaydah) v. Poland, cited above, § 554). (b) Application of the above principles to the present case 719. In Al Nashiri v. Poland the Court examined a similar complaint and found a violation of Article 6 § 1 of the Convention on the following grounds. At the time of the applicant ’ s transfer from Poland, the procedure before military commissions was governed by the Military Order of 13 November 2001 and the Military Commission Order no. 1 of 21 March 2002 (see also paragraphs 7 1 -7 2 above). The commissions were set up specifically to try “ certain non-citizens in the war against terrorism ”, outside the US federal judicial system. They were composed exclusively of commissioned officers of the United States armed forces. The appeal procedure was conducted by a review panel likewise composed of military officers. The commission rules did not exclude any evidence, including that obtained under torture, if it “ would have probative value to a reasonable person ”. On 29 June 2006 the US Supreme Court ruled in Hamdan v. Rumsfeld that the military commission “ lacked power to proceed ” and that the scheme had violated both the Uniform Code of Military Justice and the four Geneva Conventions signed in 1949 (see also paragraph 7 3 above). The Court considered that at the time of the applicant ’ s transfer from Poland there was a real risk that his trial before the military commission would amount to a flagrant denial of justice having regard to the following elements: ( i ) the military commission did not offer guarantees of impartiality of independence of the executive as required of a “ tribunal ” under the Court ’ s case-law (see also paragraph 71 6 above, with references to the Court ’ s case ‑ law ); ( ii ) it did not have legitimacy under US and international law resulting in, as the Supreme Court found, its lacking the “ power to proceed ” and, consequently, it was not “ established by law ” for the purposes of Article 6 § 1; and ( ii ) there was a sufficiently high probability of admission of evidence obtained under torture in trials against terrorist suspects (see Al Nashiri v. Poland, cited above, §§ 566- 567). 720. The Court has also attached importance to the fact that at the material time, in the light of publicly available information, it was evident that any terrorist suspect would be tried before a military commission. Furthermore, the procedure before the commission raised serious worldwide concerns among human rights organisations and the media (ibid. § 568; see also paragraphs 7 5 -7 7 above). 721. Having regard to the fact that the applicant was transferred out of Romania on 6 October 2005 or, at the latest, on 5 November 2005 when the same rules governing the procedure before the military commission applied (see paragraphs 71-74 and 54 2 above), the same considerations are valid in the present case. As in Al Nashiri v. Poland, the Court would also refer to the 2003 PACE Resolution of 26 June 2003, expressing “ disapproval that those held in detention may be subject to trial by a military commission, thus receiving a different standard of justice than United States nationals, which amount[ed] to a serious violation of the right to receive a fair trial ” (see paragraph 2 1 6 above). Romania, as any other member State of the Council of Europe, must have necessarily been aware of the underlying circumstances that gave rise to the grave concerns stated in the resolution. Also, given the strong, publicly expressed concerns regarding the procedure before the military commission in 2001-2003 (see paragraphs 7 5 ‑ 7 6 above), it must have been a matter of common knowledge that trials before the commissions did not offer the most basic guarantees required by Article 6 § 1 of the Convention. In view of the foregoing, the Court finds that Romania ’ s cooperation and assistance in the applicant ’ s transfer from its territory, despite a real and foreseeable risk that he could face a flagrant denial of justice engaged its responsibility under Article 6 § 1 of the Convention (see also paragraphs 5 97 - 598 above, with references to the Court ’ s case-law). 722. There has accordingly been a violation of Article 6 § 1 of the Convention. IX. ALLEGED VIOLATIONS OF ARTICLES 2 AND 3 OF THE CONVENTION TAKEN TOGETHER WITH ARTICLE 1 OF PROTOCOL NO. 6 TO THE CONVENTION A. The parties ’ submissions 1. The Government 723. The Government reiterated their position that Romania lacked jurisdiction and made no observations on the admissibility and merits of the complaint. 2. The applicant 724. The applicant submitted that Romania ’ s participation in his transfer out of its territory despite substantial grounds for believing that there had been a real risk that he would be subjected to the death penalty had violated his right to life under Article. In previous cases, the Court had found that Article 2 prohibited the transfer of an individual to another State in such circumstances. It had also previously found that the implementation of the death penalty in respect of a person who had not had a fair trial would violate Article 2. Furthermore, in other cases the Court had found a violation of Article 3 on account of the psychological suffering associated with a post-transfer risk of being subjected to the death penalty. It had also held that the imposition of the death penalty following an unfair trial violated Article 3 and that there was a further violation of Article 3 where the transferred individual was at risk of being subjected to the “ death row phenomenon ”. Romania had assisted the CIA in transporting the applicant out of Romania despite being on notice that terrorist suspects in US custody had been likely to be subjected to the death penalty as well as an unfair trial by the military commission. Romania ’ s participation in the applicant ’ s transfer out of its territory also violated Article 1 of Protocol No. 6. Lastly, the applicant emphasised that since his trial was still pending he continued to be at risk of having the death penalty imposed on him. Romania was therefore under a post-transfer duty to use all available means to ensure that he would not be subjected to that penalty. B. The Court ’ s assessment 1. Admissibility 725. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 2. Merits (a) Applicable general principles deriving from the Court ’ s case-law 726. Article 2 of the Convention prohibits any transfer of an individual to another State where substantial grounds have been shown for believing that he or she would face a real risk of being subjected to the death penalty there (see, mutatis mutandis, Soering, cited above, § 111; Kaboulov v. Ukraine, cited above, § 99; Al Saadoon and Mufdhi, cited above, § 123; Al Nashiri v. Poland, cited above, § 576; see also paragraph 59 7 above ). 727. Judicial execution involves the deliberate and premeditated destruction of a human being by the State authorities. Whatever the method of execution, the extinction of life involves some physical pain. In addition, the foreknowledge of death at the hands of the State must inevitably give rise to intense psychological suffering. The fact that the imposition and use of the death penalty negates fundamental human rights has been recognised by the member States of the Council of Europe. In the Preamble to Protocol No. 13 the Contracting States describe themselves as “ convinced that everyone ’ s right to life is a basic value in a democratic society and that the abolition of the death penalty is essential for the protection of this right and for the full recognition of the inherent dignity of all human beings ” ( see Al- Saadoon and Mufdhi, cited above, § 115; and Al Nashiri v. Poland, cited above, § 577 ). (b) Application of the above principles to the present case 728. As in Al Nashiri v. Poland (cited above, § 578), the Court finds that at the time of the applicant ’ s transfer from Romania there was a substantial and foreseeable risk that he could be subjected to the death penalty following his trial before the military commission (see also paragraphs 7 1 ‑ 7 2 above). Considering the fact that the applicant was indicted on capital charges on 20 April 2011, that those charges were approved on 28 September 2011 and that since then he has been on trial facing the prospect of the death penalty being imposed on him (see paragraphs 15 2 -15 6 above), that risk has not diminished. Having regard to its conclusions concerning the respondent State ’ s responsibility for exposing the applicant to the risk of a flagrant denial of justice in breach of Article 6 § 1 of the Convention on account of his transfer to the military commission ’ s jurisdiction, the Court considers that Romania ’ s actions and omissions likewise engaged its responsibility under Article 2 taken together with Article 1 of Protocol No. 6 and under Article 3 of the Convention (see paragraph 7 21 above).. 729. There has accordingly been a violation of Articles 2 and 3 of the Convention taken together with Article 1 of Protocol No. 6 to the Convention. X. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 730. Lastly, the applicant complained under Article 10 of the Convention that Poland, by its refusal to acknowledge, disclose and promptly and effectively investigate details of his secret detention, ill ‑ treatment and rendition, had violated his and the public ’ s right to the truth under Articles 2, 3, 5 and 10 of the Convention. Article 10 of the Convention provides: “ 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. ” 731. The Court observes that similar complaints were raised in El-Masri and Al Nashiri v. Poland and were declared inadmissible as being manifestly ill-founded (see El-Masri, cited above, § 264-265; and Al Nashiri v. Poland, cited above, §§ 581-582 ). 732. It finds no reason to hold otherwise in the present case and concludes that this complaint must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. XI. APPLICATION OF ARTICLE 46 OF THE CONVENTION 733. Article 46 of the Convention reads, in so far as relevant, as follows: “ 1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties. 2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution. .. ” A. The parties ’ submissions 734. The applicant submitted that the Romanian Government was under an obligation to use all available means at its disposal to ensure that the USA would not subject him to the death penalty. He relied, among other things, on the Court ’ s judgment in Al-Saadoon and Mufdhi (cited above). In his submission, those means should include but not be limited to: (i) making written submissions against the death penalty to the US Secretary of Defense, copied to the applicant ’ s military defence counsel; (ii) obtaining diplomatic assurances from the US Government that they would not subject him to the death penalty; (iii) taking all possible steps to establish contact with the applicant in Guantánamo Bay, including by sending delegates to meet him and monitor his treatment in custody; and (iv) retaining – and bearing the costs of – lawyers authorised and admitted to practice in the relevant jurisdictions in order to take all necessary action to protect the applicant ’ s rights while in US custody, including in military, criminal or other proceedings involving his case. 735. In the applicant ’ s view, the nature and severity of the violations sustained by him were comparable to the Convention violations established the Court ’ s judgment in Association “ 21 December 1989 ” and Others v. Romania (cited above). He was the victim of a large, multi- State programme of secret transfers and detention that raised fundamental questions under the Convention system. This was a situation that, as in Kelly and Others v. the United Kingdom (no. 30054/96, § 118, 4 May 2001) ... “ cried out for an explanation ” and Romania had an ongoing duty to conduct an effective investigation into this case. He thus argued that, accordingly, Romania must put an end to the continuing violation of his rights through an effective investigation, also taking into account the importance for society in Romania and beyond to know the truth about his ill-treatment and secret detention in Romania. 736. The Government first emphasised that the requested measures were entirely related to the enforcement of a judgment of the Court. As the Court had held on many occasions, this issue fell under the competence of the States, which retained the choice of the means by which they would discharge their legal obligation, subject to monitoring by the Committee of Ministers. Secondly, as opposed to Al-Saadoon and Mufdhi, in the instant case there was no compelling evidence that the applicant had been transferred to the USA from Romania. There was therefore no obligation on the part of the Romanian Government to obtain binding assurances that the death penalty would not be imposed on the applicant. Thirdly, some of the measures suggested by the applicant would be nonsense or would even go against international law. As the Court had already held in Iskandarov v. Russia (no. 17185/05, judgment of 23 September 2010, § 161) “ the individual measure sought by the applicant would require the respondent Government to interfere with the internal affairs of a sovereign State ”. There was no reason to depart from these findings in the present, similar case. 737. In sum, the Government invited the Court to find that the applicant ’ s request for individual measures had no merit and to reject it as unsubstantiated. B. The Court ’ s assessment 738. The present case concerns the removal of an applicant from the territory of the respondent State by means of extraordinary rendition. The general principles deriving from the Court ’ s case-law under Article 46 as to when, in such a situation, the Court may be led to indicate to the State concerned the adoption of individual measures, including the taking of “all possible steps” to obtain the appropriate diplomatic assurances from the destination State have been summarised in Al Nashiri v. Poland (cited above, §§ 586-588, with further references to the Court ’ s case-law, in particular Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 209, ECHR 2012; Assanidze v. Georgia [GC], no. 71503/01, §§ 198 and 202, ECHR 2004-II; see Savriddin Dzhurayev v. Russia, no. 71386/10, §§ 138, 252-254 and 256, ECHR 2013 (extracts); and Al-Saadoon and Mufdhi, cited above, § 170). 739. The Court has already found that, through the actions and inaction of the Romanian authorities in the context of their complicity in the operation of the CIA HVD Programme on Romania ’ s territory, the applicant has been exposed to the risk of the death penalty being imposed on him (see paragraph 72 8 above). Even though the proceedings against him before the military commissions are still pending and the outcome of the trial remains uncertain, that risk still continues. For the Court, compliance with their obligations under Articles 2 and 3 of the Convention taken together with Article 1 of Protocol No. 6 to the Convention requires the Romanian Government to endeavour to remove that risk as soon as possible, by seeking assurances from the US authorities that he will not be subjected to the death penalty (see also Al Nashiri v. Poland, cited above, § 589). 740. The applicant also contended that the Romanian authorities were obliged under Article 46 of the Convention to put an end to the continuing violation of his rights by carrying out an effective investigation (see paragraph 735 above). In this connection, it can be inferred from the Court ’ s case-law that the obligation of a Contracting State to conduct an effective investigation under Article 3, as under Article 2, of the Convention persists as long as such an investigation remains feasible but has not been carried out or has not met the Convention standards (see, for instance, Association “21 December 1989” and Others v. Romania, nos. 33810/07 and 18817/08, § 202, 24 May 2011; Benzer and Others v. Turkey, no. 23502/06, §§ 218 ‑ 219, 12 November 2013; Mocanu and Others, cited above, §§ 314 ‑ 326; see also, mutatis mutandis, Jeronovičs v. Latvia GC , no. 44898/10, §§ 107 and 118, 5 July 2016). An ongoing failure to provide the requisite investigation will be regarded as a continuing violation of that provision (see, mutatis mutandis, Cyprus v. Turkey, cited above, § 136; and Aslakhanova and Others v. Russia, cited above, §§ 214 and 230). 741. In the present case, given the deficiencies of the investigative procedures carried out in the applicant ’ s case, the Court has concluded that to date Romania has failed to comply with the requirements of a “prompt”, “thorough” and “effective” investigation for the purposes of Article 3 of the Convention. In particular, it has found that, in the light of the material before it, no individuals bearing responsibility for Romanian ’ s role in the HVD Programme have so far been identified (see paragraphs 647 -65 6 above). On the basis of the elements in the case-file, there appear to be no insurmountable practical obstacles to the hitherto lacking effective investigation being carried out (see Abuyeva and Others v. Russia, no. 27065/05, §§ 240- 241, 2 December 2010). 742. Referring to its case - law cited above (see paragraph 7 40 above) regarding the kind of exceptional circumstances capable of justifying the indication to the respondent State of individual measures under Article 46 of the Convention, the Court considers it appropriate to give the following indications. First of all, having regard in particular to the nature of the procedural violation of Article 3 found in the present case, the obligation incumbent on Romania under Article 46 inevitably requires that all necessary steps to reactivate the still pending criminal investigation be taken without delay. Thereafter, in accordance with the applicable Convention principles (see paragraphs 63 8 -64 1 above, with references to the Court ’ s case-law), the criminal investigation should be brought to a close as soon as possible, once, in so far as this proves feasible, the circumstances and conditions under which the applicant was brought into Romania, treated in Romania and thereafter removed from Romania have been elucidated further, so as to enable the identification and, where appropriate, punishment of those responsible. 743. It is not, however, for the Court to give any detailed, prescriptive injunctions in that regard. It falls to the Committee of Ministers, acting under Article 46 of the Convention, to address the issue of what – in practical terms – may be required of the respondent Government by way of compliance (see, mutatis mutandis, Abuyeva and Others v. Russia, cited above, § 243); and Al Nashiri v. Poland (cited above), § 586, with further references to the Court ’ s case-law). XII. APPLICATION OF ARTICLE 41 OF THE CONVENTION 744. Article 41 of the Convention provides: “ If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party. ” A. Damage 745. The applicant made no claim for pecuniary damage. 746. As regards non-pecuniary damage, he submitted that Romania ’ s acts and omissions had resulted in his suffering very substantial pain and had caused significant harm to his mental health and overall well-being. 747. Emphasising the severity of the ill-treatment to which he had been subjected in Romania and the fact that he had endured incommunicado detention and the violation of his right to respect for his private and family life during his detention in Romania for a period of one year and some six months, he asked the Court to make an award of 300,000 euros (EUR) in that respect. In support of his claim, he cited a number of the Court ’ s judgments, including Assanidze, Selmouni (both cited above), Mikheyev v. Russia (no. 77617/01, judgment of 26 January 2006) and El-Masri (cited above). As regards the latter, the applicant maintained that Mr El-Masri, a victim of extremely serious violations of the Convention committed in the framework of the extraordinary rendition operations, had endured his ordeal for a period of four months, whereas the applicant had been secretly detained in Romania for a much longer period. In addition, he was subject to a criminal process, which entailed a violation of Article 6 § 1 and faced the death penalty if convicted. Consequently, the non-pecuniary damage that he had sustained was more severe. 748. The Government asked the Court to find that the claim was unsubstantiated since there had been no violation of the applicant ’ s rights under the Convention. Should the Court consider that the application was admissible and that the interference with his rights called for an award of just satisfaction, they maintained that the sum asked for was excessive in comparison, for instance, to the award made in El-Masri. 749. Article 41 empowers the Court to afford the injured party such satisfaction as appears to it to be appropriate. In the present case the Court has found serious violations of several Convention provisions by the respondent State. It has held that the responsibility of the respondent State is engaged in respect of the applicant ’ s treatment contrary to Article 3 and his secret detention in breach of Article 5. The respondent State has also failed to carry out an effective investigation as required under Articles 3 and 13 of the Convention. In addition, the Court has found a violation of the applicant ’ s rights under Article 8. Furthermore, the respondent State has been found responsible for enabling the CIA to transfer him from its territory, despite the serious risk that he could have a flagrantly unfair trial in breach of Article 6 § 1 and that the death penalty could be imposed on him, in violation of Articles 2 and 3 of the Convention taken together with Article 1 of Protocol No. 6 to the Convention (see paragraphs 656, 67 8 -67 9, 69 1 -69 2, 69 8 -69 9, 7 10, 72 2 and 72 9 above). In view of the foregoing, the Court considers that the applicant has undeniably sustained non-pecuniary damage which cannot be made good by the mere finding of a violation. 750. Consequently, regard being had to the extreme seriousness of the violations of the Convention of which the applicant has been a victim and ruling on an equitable basis, as required by Article 41 of the Convention (see El-Masri, cited above, § 270; Al Nashiri v. Poland, cited above, § 595; Husayn (Abu Zubaydah) v. Poland, cited above, § 567; and Nasr and Ghali, cited above, § 348 ), the Court awards him EUR 100,000, plus any tax that may be chargeable on that amount. B. Costs and expenses 751. The applicant made no claim for the costs and expenses incurred in the proceedings. 752. Accordingly, there is no call to award him any sum on that account. C. Default interest 753. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | In this case the Court had no access to the applicant as he was still being held by the US authorities in very restrictive conditions so it had to establish the facts from various other sources. In particular, it gained key information from a US Senate report on CIA torture which was released in December 2014. It also heard expert witness testimony. The Court held that in the applicant’s case there had been violations of Article 3 (prohibition of torture) of the Convention, because of the Romanian Government’s failure to effectively investigate the applicant’s allegations and because of its complicity in the CIA’s actions that had led to ill-treatment. The Court also held that there had been violations of Article 5 (right to liberty and security), Article 8 (right to respect for private life), and Article 13 (right to an effective remedy) in conjunction with Articles 3, 5 and 8. Lastly, it held that there had been violations of Article 6 § 1 (right to a fair trial within a reasonable time) of the Convention, and Articles 2 (right to life) and 3 of the Convention taken together with Article 1 (abolition of the death penalty) of Protocol No. 6 to the Convention because Romania had assisted in the applicant’s transfer from its territory in spite of a real risk that he could face a flagrant denial of justice and the death penalty. The Court noted in particular that Romania had hosted a secret CIA prison, which had the code name, Detention Site Black, between September 2003 and November 2005, that the applicant had been detained there for about 18 months, and that the domestic authorities had known the CIA would subject him to treatment contrary to the Convention. Romania had also permitted him to be moved to another CIA detention site located either in Afghanistan (Detention Site Brown) or in Lithuania (Detention Site Violet), thus exposing him to further ill-treatment. The Court therefore found that the applicant had been within Romania’s jurisdiction and that the country had been responsible for the violation of his rights under the Convention. It further recommended that Romania conclude a full investigation into the applicant’s case as quickly as possible and, if necessary, punish any officials responsible. The Court lastly held that the country should also seek assurances from the United States that the applicant would not suffer the death penalty. |
149 | Embryo donation and scientific research | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Law no. 40 of 19 February 2004, in force since 10 March 2004 (“Rules governing medically assisted fertilisation”) Section 1 – Purpose “(1) In order to remedy reproductive problems arising as a result of human sterility or infertility, recourse may be had to medically assisted reproduction in the conditions and in accordance with the procedures provided for by this Law, which guarantees the rights of all the persons concerned, including those of the subject thus conceived.” Section 5 – Conditions of access “... [only] couples [composed of persons] who have reached the age of majority, are of opposite sex, are married or cohabiting, are of reproductive age and living may have recourse to assisted reproduction techniques.” Section 13 – Experiments on human embryos “(1) It is forbidden to experiment on a human embryo. (2) Clinical and experimental research on a human embryo shall be authorised only on condition that it is performed exclusively for therapeutic or diagnostic purposes with the aim of protecting the health and development of the embryo and that no alternative methods exist. ... (4) Anyone who infringes the prohibition provided for in subsection 1 shall be liable to a term of imprisonment ranging from two to six years and to a fine of 50,000 to 150,000 euros. ... (5) Any health professional convicted of an offence provided for in this section shall be debarred from practising medicine for one to three years.” Section 14 – Limits on application of technology to embryos “(1) The cryopreservation or destruction of embryos is forbidden, without prejudice to the provisions of Law no. 194 of 22 May 1978 [rules on social protection of maternity and voluntary termination of pregnancy]. (2) Embryo production techniques shall not result in the creation of a higher number of embryos than that strictly required for a single and simultaneous implantation and in no circumstances shall more than three embryos be created. (3) Where the embryos cannot be implanted into the uterus for reasons of serious and proven force majeure affecting the state of health of the woman concerned which were unforeseeable at the time of fertilisation, cryopreservation of the embryos shall be authorised until the date of transfer, which shall be effected as soon as possible.” 18. By judgment no. 151 of 1 April 2009 (see paragraphs 29-31 below), the Constitutional Court declared unconstitutional the provision in section 14(2) of Law no. 40/2004 according to which embryo production techniques must not result in the creation of a higher number of embryos than that strictly required for “a single and simultaneous implantation and in no circumstances shall more than three embryos be created”. It also declared section 14(3) unconstitutional on the ground that it did not provide that the transfer of the embryos should be performed without jeopardising the woman’s health. B. Opinion of the National Bioethics Committee on adoption for birth (“ADP”) (18 November 2005) 19. Following the enactment of Law no. 40/2004, the National Bioethics Committee examined the issue of the fate of abandoned cryopreserved embryos, the Law making no specific provision in this regard but implicitly banning the use of surplus embryos for scientific research. 20. In that connection the Committee issued an opinion in favour of “adoption for birth”, a practice enabling a couple or a woman to adopt surplus embryos for implantation and thus allowing the embryos in question to be used for the purposes of bringing them to life and starting a family. C. Ministry of Health decree of 11 April 2008 (“Explanatory notes on assisted reproduction”) “... Cryopreservation of embryos: ... There are two categories of embryos amenable to cryopreservation: the first is embryos that are awaiting implantation, including those that were cryopreserved prior to the entry into force of Law no. 40 of 2004; the second is embryos that have been certified as abandoned ...” D. Final report of the “Study Commission on embryos” of 8 January 2010 21. By a decree of 25 June 2009, the Ministry of Health appointed a Study Commission on embryos stored in cryopreserved form in assisted reproduction centres. The following is a passage from the final report by that Commission, adopted by a majority on 8 January 2010. “The legal ban on the destruction of embryos is to be understood as prohibiting the interruption of cryopreservation other than in two cases: where the thawed embryo can be implanted in the uterus of the mother or another woman willing to have it implanted; or where natural death or permanent loss of viability as an organism can be medically certified. In the light of current [scientific] knowledge, the viability of an embryo cannot be certified unless it has been thawed, thus creating the paradoxical situation in which, once thawed, an embryo cannot be frozen a second time and if it is not immediately implanted into the uterus death will inevitably ensue. Hence, a tutiorist prospect of frozen embryos being stored for an indeterminate period. However, it can be assumed that advances in scientific research will make it possible to determine the criteria and methods for diagnosing death, or in any event loss of viability, of cryopreserved embryos. It will thus be possible to overcome the present – and legally inevitable – paradox of potentially indefinite cryopreservation. Pending those results, [it should be reaffirmed that] the explicit ban under section 14 of Law no. 40 of 2004 on the destruction of embryos, including therefore frozen embryos, cannot be ignored. That is not all, for as regards the fate of surplus embryos, the authors of Law no. 40 opted for their storage and not their destruction, thus establishing as a principle that they should be kept alive even where their fate is uncertain.” E. The Constitution of the Italian Republic 22. The relevant Articles of the Constitution provide as follows. Article 9 “The Republic promotes the development of culture and of scientific and technical research. ...” Article 32 “The Republic safeguards health as a fundamental right of the individual and as a collective interest. ...” Article 117 “Legislative power is exercised by the State and the Regions in compliance with the Constitution and the constraints deriving from the Community legal order and international obligations. ...” F. Constitutional Court judgments nos. 348 and 349 of 24 October 2007 23. These judgments address questions raised by the Court of Cassation and an appellate court regarding the compatibility of Legislative Decree no. 333 of 11 July 1992 on the criteria for calculating expropriation compensation with the Constitution and with Article 6 § 1 of the Convention and Article 1 of Protocol No. 1. They take account of the Court’s Grand Chamber judgment in Scordino v. Italy (no. 1) [GC], no. 36813/97, ECHR 2006 ‑ V. 24. In these judgments, after reiterating the legislature’s obligation to comply with international obligations (Article 117 of the Constitution), the Constitutional Court defined the place assigned to the European Convention on Human Rights in the Italian legal system, stating that it was of intermediate rank between an ordinary law and the Constitution. The Constitutional Court also stated that the courts below had to interpret rules of domestic law in a manner compliant with the Convention and the Court’s case-law (judgment no. 349, point 6.2, see paragraph 26 below) and that, where such an interpretation was impossible or the courts below doubted the compatibility of the domestic law with the Convention, they had to raise a question of constitutionality before the Constitutional Court. 25. The relevant passages of judgment no. 348 of 24 October 2007 read as follows. “4.2. ... It is necessary to define the rank and role of the provisions of the European Convention on Human Rights with a view to determining, in the light of [Article 117 of the Constitution], their impact on the Italian legal order. ... 4.3. While on the one hand [these provisions] complement the protection of fundamental rights, and therefore supplement the values and fundamental principles protected by the Italian Constitution itself, on the other hand they maintain their formal status as simple sources of ordinary legislation. ... Today the Constitutional Court is called upon to clarify the normative and institutional question [referred to above], which has significant practical implications for the everyday work of legal practitioners. ... The ordinary courts do not have the power to set aside ordinary legislation conflicting with the European Convention on Human Rights, since the alleged incompatibility between the two raises a question of constitutionality regarding a possible violation of Article 117 § 1 of the Constitution and [thus] falls within the exclusive jurisdiction of the Constitutional Court. ... 4.5. ... The principle enshrined in Article 117 § 1 of the Constitution will only become operative in practice if ‘the international law obligations’ binding on the legislative powers of the State and the Regions are duly specified. ... 4.6. Compared with other international law treaties, the European Convention on Human Rights has the particular feature of having instituted the jurisdiction of a court, the European Court of Human Rights, which is assigned the role of interpreting the provisions of the Convention. Article 32 § 1 [of the Convention] provides: ‘The jurisdiction of the Court shall extend to all matters concerning the interpretation and application of the Convention and the Protocols thereto which are referred to it as provided in Articles 33, 34, 46 and 47.’ Since legal provisions acquire meaning [ vivono ] through the interpretation which is given to them by legal practitioners, and in the first place the courts, the natural consequence of Article 32 § 1 of the Convention is that the international law obligations undertaken by Italy in signing and ratifying the European Convention on Human Rights include the duty to bring its own legislation into line with the provisions of the Convention in accordance with the meaning attributed to these by the [European] Court [of Human Rights], which was specifically set up to interpret and apply those provisions. It is therefore not correct to speak of a jurisdictional competence that operates in addition to that of the Italian courts, but rather of a pre-eminent interpretative role which the signatory States have recognised in the European Court, thus contributing to clarifying their international law obligations in that particular area. 4.7. It should not be inferred from the foregoing that the provisions of the European Convention on Human Rights, as interpreted by the Strasbourg Court, have the force of constitutional law and thus escape scrutiny by this court of their constitutional legitimacy. It is precisely because the provisions in question supplement constitutional principles, while remaining of lower rank, that it is necessary that they be in conformity with the Constitution. ... Since, as stated above, the provisions of the European Convention on Human Rights acquire meaning through the interpretation given to them by the European Court, scrutiny of their constitutionality must give consideration to the norms that result from that interpretation, and not the provisions considered in themselves. Moreover, the judgments of the Strasbourg Court are not unconditionally binding for the purposes of reviewing the constitutionality of national laws. This review must always be a balancing exercise between the constraints arising from international law obligations, as imposed by Article 117 § 1 of the Constitution, and the constitutionally protected interests enshrined in other Articles of the Constitution. ... 5. In the light of the methodological principles set out above, the constitutional review requested by the referring court must be carried out in such a way as to ascertain: (a) whether there is actually a conflict that cannot be resolved through interpretation between the domestic provision in question and the provisions of the European Convention on Human Rights, as interpreted by the European Court and regarded as a source supplementing the constitutional principle contained in Article 117 § 1, and (b) whether the provisions of the European Convention on Human Rights integrating that principle, and understood according to their interpretation by the [European] Court, are compatible with the Italian constitutional order. ...” 26. The relevant parts of judgment no. 349 of 24 October 2007 read as follows. “6.2. ... [The principle laid down] in Article 117 § 1 of the Constitution [does not mean] that the provisions laid down in international agreements and implemented by ordinary legislation, as is the case for the provisions of the European Convention on Human Rights, must be regarded as having constitutional status. As the constitutional principle in issue imposes a duty on the legislature to comply with those provisions, any national provision incompatible with the European Convention on Human Rights and thus with the ‘international law obligations’ referred to in Article 117 § 1 would ipso facto violate this constitutional principle. Article 117 § 1 ultimately creates a reference to Convention provisions which may be relevant in a particular case, giving life [ dà vita ] and substantive content to the international law obligations evoked generally and to the [underlying constitutional] principle, such as to be generally classified as ‘interposed provisions’, and which in turn are reviewed in terms of their compatibility with the Constitution, as will be discussed below. It follows that it is a matter for the ordinary courts to interpret national law in conformity with the international legal provision in question ... Where this is not possible, or where the court doubts the compatibility of the national law with the ‘interposed’ Convention provision, it must raise a question of constitutionality before the Constitutional Court in the light of Article 117 § 1 of the Constitution ... Regarding the European Convention on Human Rights, consideration must be given to its special nature compared with other international agreements since it goes further than simply listing reciprocal rights and duties of the signatory States. The latter have created a system for the uniform protection of fundamental rights. The application and interpretation of that system is naturally in the first instance a matter for the courts of the member States, which are the ordinary courts in relation to Convention law. Definitive uniformity in application is on the other hand guaranteed by the centralised interpretation of the European Convention on Human Rights – a task assigned to the European Court of Human Rights in Strasbourg, which has the last word and the jurisdiction of which ‘shall extend to all matters concerning the interpretation and application of the Convention and the Protocols thereto which are referred to it as provided [therein]’ (Article 32 § 1 of the Convention). ... The Constitutional Court and the Strasbourg Court ultimately have different roles, even though both share the same objective of protecting as effectively as possible fundamental rights. The interpretation of the Rome Convention and of the Protocols is a matter for the Strasbourg Court, which guarantees the application of a uniform level of protection throughout the member States. However, where a question is raised before the Constitutional Court regarding the constitutionality of a national provision in the light of Article 117 § 1 of the Constitution in respect of an incompatibility – insurmountable through interpretation – with one or more provisions of the European Convention on Human Rights, it is incumbent on this Court to determine whether there actually is an incompatibility and [where one is found to exist] to verify whether the actual provisions of the European Convention on Human Rights, as interpreted by the Strasbourg Court, guarantee a protection of fundamental rights that is at least equivalent to the level guaranteed by the Italian Constitution. This does not require an assessment of the interpretation by the Strasbourg Court of a provision of the European Convention on Human Rights ... but verification as to whether that provision, as interpreted by the court expressly charged with that task by the member States, is compatible with the relevant constitutional provisions. Accordingly, a correct balance will be struck between the duty imposed by the Constitution to guarantee respect for international obligations and the need to prevent this resulting in a breach of the Constitution itself.” G. The case-law of the Constitutional Court 1. Constitutional Court Order no. 369 of 24 October 2006 27. In this Order the Constitutional Court declared inadmissible a question of constitutionality raised by the Cagliari Court in respect of section 13 of Law no. 40/2004, which bans the use of pre-implantation diagnosis. 28. In ruling thus the Constitutional Court observed that the court referring the question for a preliminary ruling had confined itself to raising the question of the constitutionality of section 13 alone of Law no. 40/2004 whereas, according to the terms of the application for a preliminary ruling, other provisions of the same Law also had the effect of banning pre ‑ implantation diagnosis, particularly section 14(3). 2. Constitutional Court judgment no. 151 of 1 April 2009 29. This judgment concerns the constitutionality of the provisions of section 14(2) and section 14(3) of Law no. 40/2004, which provide for the creation of a limited number of embryos (maximum of three) and the obligation to implant them simultaneously and also prohibit the cryopreservation of surplus embryos. 30. The Constitutional Court held that the subsections in question were unconstitutional because they jeopardised women’s health by obliging them to undergo several cycles of ovarian stimulation and also to expose themselves to the risk of multiple pregnancies on account of the prohibition on selective abortion. 31. The judgment does not make any reference to the European Convention on Human Rights. Nor was the Convention cited by the referring courts (Lazio Regional Administrative Court and Florence Court). 3. Constitutional Court Order no. 97 of 8 March 2010 32. In this Order the Constitutional Court declared inadmissible the questions of constitutionality that the Milan Court had raised before it, as those questions had already been dealt with in its judgment no. 151/2009. 4. Constitutional Court Order no. 150 of 22 May 2012 33. In this Order, which referred to S.H. and Others v. Austria ([GC], no. 57813/00, ECHR 2011), the Constitutional Court remitted to the lower court the case brought before it concerning the ban on heterologous fertilisation laid down in Law no. 40/2004. 5. Constitutional Court judgment no. 162 of 10 June 2014 34. This judgment concerns the constitutionality of the blanket ban on access to heterologous fertilisation in the event of medically established sterility or infertility, as provided for in Law no. 40/2004. 35. Three courts of ordinary jurisdiction had sought a preliminary ruling from the Constitutional Court regarding the question whether the Law in issue was compatible with Articles 2 (inviolable rights), 3 (principle of equality), 29 (rights of the family), 31 (State’s obligations to protect rights of the family) and 32 (right to health) of the Constitution. One of those courts – the Milan Court – had also asked the Constitutional Court to rule on the compatibility of the Law in issue with Articles 8 and 14 of the Convention. 36. The Constitutional Court ruled the relevant legislative provisions unconstitutional. 37. It held in particular that the choice of the applicants in the proceedings to become parents and found a family with children was an aspect of their freedom of self-determination regarding the sphere of their private and family life which attracted the protection of Articles 2, 3 and 31 of the Constitution. It also observed that persons who were totally sterile or infertile had a right to protection of their health (Article 32 of the Constitution). 38. It found that, while the rights in question could be the subject of restrictions based on ethical considerations, those restrictions could not amount to a blanket ban unless it were otherwise impossible to protect other constitutionally guaranteed freedoms. 39. With regard to the compatibility of the legislative provisions in issue with Articles 8 and 14 of the Convention, the Constitutional Court confined itself to observing that the questions in that regard had been covered in the conclusions it had reached on the constitutionality of the provisions in issue (see above). H. Orders of the domestic courts regarding access to pre-implantation diagnosis 1. Cagliari Court Order of 22 September 2007 40. In this Order the Cagliari Court observed that the claimants had first instituted urgent proceedings in the context of which a question of constitutionality had been raised. It added that this question had then been declared inadmissible by Order no. 369 of the Constitutional Court adopted on 24 October 2006 (see paragraphs 27-28 above), which had therefore not provided any guidance regarding the interpretation to be given to domestic law in the light of the Constitution. 41. With regard to the civil proceedings brought before it, the court pointed out that there was no explicit ban under domestic law on access to pre-implantation diagnosis, and that interpreting the Law in such a way as to construe that a ban existed would have been contrary to the claimants’ right to be duly informed of the medical treatment that they sought to undergo. 42. Furthermore, it noted that a ban on pre-implantation diagnosis had been introduced subsequently by secondary legislation, namely, Ministry of Health Decree no. 15165 of 21 July 2004 (particularly the part providing that “tests to determine the state of health of embryos created in vitro, within the meaning of section 14(5) [of Law no. 40 of 2004], cannot be carried out for purposes other than observation of those embryos (“ dovrà essere di tipo osservazionale ”). It held that this was contrary to the principle of legality and the Council of Europe’s Oviedo Convention. 43. It observed, lastly, that interpreting Law no. 40/2004 so as to allow access to pre-implantation diagnosis was consonant with the right to health accorded to the mother. Consequently, it granted the claimants access to pre-implantation diagnosis. 2. Florence Court Order of 17 December 2007 44. In this Order the Florence Court referred to the Order of the Cagliari Court cited above and stated that it agreed with its interpretation of the domestic law. Accordingly, it granted the claimants access to pre-implantation diagnosis. 3. Bologna Court Order of 29 June 2009 45. In this Order the Bologna Court granted the claimants access to pre-implantation diagnosis, stating that this was consonant with the protection of women’s health recognised by the Constitutional Court’s interpretation of domestic law in its judgment no. 151 of 1 April 2009 (see paragraphs 29-31 above). 4. Salerno Court Order of 9 January 2010 46. In this Order, adopted following urgent proceedings, the Salerno Court referred to the new developments introduced by Ministry of Health Decree no. 31639 of 11 April 2008, namely the fact that tests to determine the state of health of embryos created in vitro were no longer limited to observation of those embryos and that access to assisted reproduction was authorised for couples where the man was a carrier of sexually transmitted viral diseases. 47. It concluded that pre-implantation diagnosis had to be regarded as just one of the antenatal treatment techniques designed to determine the state of health of the embryo. 48. Consequently, it authorised pre-implantation diagnosis of the claimants’ embryo in vitro. 5. Cagliari Court Order of 9 November 2012 49. In this Order the Cagliari Court referred to the reasoning in the above-cited Orders. It indicated, further, that judgments nos. 348 and 349 delivered by the Constitutional Court on 24 October 2007 showed that interpreting the law with a view to guaranteeing access to pre-implantation diagnosis was compatible with the European Convention on Human Rights, especially having regard to the judgment delivered by the Strasbourg Court in Costa and Pavan v. Italy (no. 54270/10, 28 August 2012). 6. Rome Court Order of 15 January 2014 50. In this Order the court raised the question of the constitutionality of sections 1(1) and (2) and 4(1) of Law no. 40/2004, which prohibit couples who are neither sterile nor infertile from using assisted reproduction techniques with a view to obtaining a pre-implantation diagnosis. The court also considered the matter from the standpoint of Articles 8 and 14 of the Convention. 51. While having regard to the judgment in Costa and Pavan (cited above), it found that the Law should not be interpreted extensively, since it did expressly provide that access to assisted reproduction techniques was reserved to sterile or infertile couples. I. Question of the constitutionality of section 13 of Law no. 40/2004 raised by the Florence Court 52. In a decision of 7 December 2012, the Florence Court raised the question of the constitutionality of the ban under section 13 of Law no. 40/2004 on donating surplus embryos to scientific research with regard to Articles 9 and 32 of the Constitution, which guarantee freedom of scientific research and the right to health respectively. 53. On 19 March 2014 the President of the Constitutional Court adjourned its examination of the case pending the decision of the Grand Chamber in the present application, Parrillo v. Italy (no. 46470/11). IV. RELEVANT EUROPEAN UNION LAW AND MATERIALS A. European Group on Ethics in Science and New Technologies (EGE) to the European Commission 56. Set up by the European Commission in 1991, the EGE is an independent body composed of experts whose task is to advise the European Commission on ethical questions relating to science and new technologies. The EGE has provided two opinions on the use of embryos in vitro for research purposes. 1. Opinion no. 12: Ethical aspects of research involving the use of human embryo in the context of the 5th Framework Programme, 23 November 1998 57. This opinion was published at the request of the European Commission following the proposal of the European Parliament to exclude research projects that resulted in the destruction of human embryos from Community funding in the context of the 5th Framework Programme. The relevant passages read as follows. “2.6 ... [I]n the scope of European research programmes, the question of research on the human embryo has to be approached, not only with regard to the respect for fundamental ethical principles, common to all Member States, but equally taking into consideration diverse philosophical and ethical conceptions, expressed through the practices and the national regulations in force in this field. ... 2.8 In the light of the aforementioned principles and specifications, the Group considers that according to the ethical dimension of the Community’s Fifth Framework Programme Community funding should not a priori exclude human embryo research which is the object of different ethical choices in different countries ...” 2. Opinion no. 15: Ethical aspects of human stem cell research and use, 14 November 2000 58. The relevant parts of this opinion read as follows. “2.3. Pluralism and European ethics ... In the context of European pluralism, it is up to each Member State to forbid or authorise embryo research. In the latter case, respect for human dignity requires regulation of embryo research and the provision of guarantees against risks of arbitrary experimentation and instrumentalisation of human embryos. 2.5. Ethical Acceptability of the field of the research concerned The Group notes that in some countries embryo research is forbidden. But when this research is allowed, with the purpose of improving treatment for infertility, it is hard to see any specific argument which would prohibit extending the scope of such research in order to develop new treatments to cure severe diseases or injuries. As in the case of research on infertility, stem cell research aims to alleviate severe human suffering. In any case, the embryos that have been used for research are required to be destroyed. Consequently, there is no argument for excluding funding of this kind of research from the Framework Programme of research of the European Union if it complies with ethical and legal requirements as defined in this programme.” B. Regulation (EC) No 1394/2007 of the European Parliament and of the Council of 13 November 2007 on advanced therapy medicinal products and amending Directive 2001/83/EC and Regulation (EC) No 726/2004 “... (7) The regulation of advanced therapy medicinal products at Community level should not interfere with decisions made by Member States on whether to allow the use of any specific type of human cells, such as embryonic stem cells, or animal cells. It should also not affect the application of national legislation prohibiting or restricting the sale, supply or use of medicinal products containing, consisting of or derived from these cells.” C. Judgment of the Court of Justice of the European Union (CJEU) of 18 October 2011 (C-34/10 Oliver Brüstle v. Greenpeace eV ) 59. In this judgment, delivered following a referral for a preliminary ruling from the German Federal Court of Justice ( Bundesgerichtshof ), the CJEU ruled on the interpretation to be given to Directive 98/44/EC of the European Parliament and of the Council of 6 July 1998 on the legal protection of biotechnological inventions. 60. In issue was the part of the Directive which, tempering the principle that the use of human embryos for industrial or commercial purposes could not be patented, specified that this exclusion from patentability did not affect “inventions for therapeutic or diagnostic purposes which are applied to the human embryo and are useful to it”. 61. The CJEU observed that the purpose of the Directive in question was not to regulate the use of human embryos in the context of scientific research. It was limited to the patentability of biotechnological inventions. The CJEU then considered that inventions involving the use of human embryos continued to be excluded from patentability even where they purported to serve scientific research (those purposes being indistinguishable, where patents were concerned, from other industrial and commercial aims). The CJEU indicated at the same time that this exclusion did not affect inventions for therapeutic or diagnostic purposes which were applied to the human embryo and were useful to it. D. European Union funding of research and technological development 62. Since 1984 the European Union has provided funding for scientific research through framework programmes covering periods spanning several years. 63. The relevant parts of Decision No 1982/2006/EC of 18 December 2006 concerning the Seventh Framework Programme of the European Community for research, technological development and demonstration activities (2007-2013) read as follows. Article 6 – Ethical principles “1. All the research activities carried out under the Seventh Framework Programme shall be carried out in compliance with fundamental ethical principles. 2. The following fields of research shall not be financed under this Framework Programme: – research activity aiming at human cloning for reproductive purposes, – research activity intended to modify the genetic heritage of human beings which could make such changes heritable, – research activities intended to create human embryos solely for the purpose of research or for the purpose of stem cell procurement, including by means of somatic cell nuclear transfer. 3. Research on human stem cells, both adult and embryonic, may be financed, depending both on the contents of the scientific proposal and the legal framework of the Member State(s) involved. ...” 64. The relevant parts of Regulation (EU) No 1291/2013 of the European Parliament and of the Council of 11 December 2013 establishing Horizon 2020 – the Framework Programme for Research and Innovation (2014-2020) and repealing Decision No 1982/2006/EC read as follows. Article 19 – Ethical principles “1. All the research and innovation activities carried out under Horizon 2020 shall comply with ethical principles and relevant national, Union and international legislation, including the Charter of Fundamental Rights of the European Union and the European Convention on Human Rights and its Supplementary Protocols. ... 3. The following fields of research shall not be financed: (a) research activity aiming at human cloning for reproductive purposes; (b) research activity intended to modify the genetic heritage of human beings which could make such changes heritable; (c) research activities intended to create human embryos solely for the purpose of research or for the purpose of stem cell procurement, including by means of somatic cell nuclear transfer. 4. Research on human stem cells, both adult and embryonic, may be financed, depending both on the contents of the scientific proposal and the legal framework of the Member States involved. No funding shall be granted for research activities that are prohibited in all the Member States. No activity shall be funded in a Member State where such activity is forbidden. ...” E. Communication from the European Commission on the European Citizens’ Initiative “One of Us” COM(2014) 355 final (Brussels, 28 May 2014) 65. On 10 April 2014 the citizens’ initiative “One of Us” had proposed legislative amendments to exclude from European funding scientific projects involving the destruction of human embryos. 66. In its Communication of 28 May 2014, the European Commission stated that it could not uphold the request on the ground that its proposal to fund the projects in question took account of ethical considerations, potential health benefits and support at European Union level for stem-cell research. V. RELEVANT INTERNATIONAL LAW MATERIALS A. Report of the Unesco International Bioethics Committee (IBC) on the ethical aspects of human embryonic stem cell research (6 April 2001) 67. The relevant parts of the conclusions of this report read as follows. “A. The IBC recognises that human embryonic stem cell research is a subject on which it is desirable for a debate to occur at national level to identify which position on this issue is to be adopted, including abstaining from this research. It urges that debates be conducted at appropriate national regulatory levels, enabling expression of a range of views, and whenever possible allowing a consensus to be reached on the limits of the permissible in this important new therapeutic research field. There should be an on-going process of education and information in this area. States should take appropriate measures to initiate an on-going dialogue within society on the ethical issues raised by such research, involving all actors concerned. B. Whatever form of research involving embryos is allowed, steps should be taken to ensure that such research be carried out within the framework of a State-sponsored regulatory system that would give due weight to ethical considerations, and set up appropriate guidelines. When authorisation of donations of supernumerary pre-implantation embryos from IVF treatments for therapeutic embryonic stem cell research is under consideration, particular attention should be given to the dignity and rights of both parental donors of embryos. Thus, it is essential that the donation be made only after the donors should have been given full information as to the implications of the research and have given their prior, free and informed consent. The purposes for which such research is carried out, and the way of its performance, should be subject to assessment by the appropriate ethics committees, which should be independent of the researchers involved. This assessment should include ex post facto ethical evaluation of such research.” B. Judgment of the Inter-American Court of Human Rights in Artavia Murillo et al. ( in vitro fertilization) v. Costa Rica (preliminary objections, merits, reparations and costs), judgment of 28 November 2012, Series C No. 257 68. In this case the Inter-American Court gave a ruling on the ban on carrying out in vitro fertilisation in Costa Rica. It held, inter alia, that an embryo could not be regarded as a “person” within the meaning of Article 4 § 1 of the American Convention on Human Rights (protecting the right to life), “conception” occurring only from the moment the embryo was implanted in the uterus. VI. COMPARATIVE LAW MATERIALS 69. According to the information available to the Court on the legislation of forty member States [1] regarding the use of human embryos for scientific research, three countries (Belgium, Sweden and the United Kingdom) allow scientific research on human embryos and the creation of embryos for that purpose. 70. The creation of embryos for scientific research is banned in fourteen countries [2]. However, research using surplus embryos is generally allowed in those countries, subject to certain conditions. 71. Like Italy, three member States (Slovakia, Germany and Austria) prohibit scientific research on embryos in principle, and permit it in very restricted cases, such as for the protection of the health of the embryo or where the research is carried out on cell lines imported from abroad. 72. In Slovakia any research on embryos is strictly forbidden, other than research for medical purposes for the benefit of the health of the persons directly participating in the research in question. 73. In Germany the importation and use for research purposes of embryonic cells is in principle banned by law and authorised only exceptionally and subject to strict conditions. 74. In Austria the law provides that “viable cells” cannot be used for purposes other than in vitro fertilisation. However, the concept of “viable cells” is not defined in the law. According to practice and legal commentary, the statutory ban concerns only “totipotent” embryonic cells [3]. 75. In four countries (Andorra, Latvia, Croatia and Malta) the law expressly prohibits any research on embryonic stem cells. 76. In sixteen countries (Armenia, Azerbaijan, Bosnia and Herzegovina, Georgia, Ireland, Liechtenstein, Lithuania, Luxembourg, the Republic of Moldova, Monaco, Poland, Romania, Russia, San Marino, Turkey and Ukraine) the matter is not regulated. Some of these States take a rather restrictive approach in practice (for example, Turkey and Ukraine), while others have a rather non-prohibitive practice (for example, Russia). THE LAW 77. The Court notes at the outset that the Government raised a number of objections to the admissibility of the present application. They submitted that the applicant had not exhausted the domestic remedies available to her in domestic law; that she had failed to lodge her application within the six-month time-limit provided for in Article 35 § 1 of the Convention; and that she did not have victim status. The Court will examine these objections below before analysing the other aspects of the application. I. NON-EXHAUSTION OF DOMESTIC REMEDIES A. The Government’s submissions 78. The Government submitted that the applicant could complain of the prohibition on donating her embryos to scientific research before an ordinary civil court on the ground that the ban was contrary to the Italian Constitution and the Convention. In support of that submission, they cited a number of domestic decisions in which the national courts had interpreted Law no. 40/2004 in the light of the Constitution and the European Convention on Human Rights, in particular regarding access to pre-implantation diagnosis (Orders of the Cagliari Court of 22 September 2007 and 9 November 2012 and those adopted by the Florence, Bologna and Salerno Courts on 17 December 2007, 29 June 2009 and 9 January 2010 respectively, see paragraphs 40-49 above). 79. According to the Government, the court in question would then have had to interpret the Law prohibiting the donation of embryos in the light of the Convention, as required by Constitutional Court judgments nos. 348 and 349 of 24 October 2007. 80. If the court had considered that there was an insurmountable conflict between its interpretation of the Law and the rights asserted by the claimant it would have had to submit a question of constitutionality to the Constitutional Court. That court would then have examined the issue of compatibility with human rights on the merits and would have been able to annul the domestic provisions with retroactive and erga omnes effect. 81. Moreover, several cases concerning the constitutionality of Law no. 40/2004 had already been brought before the Constitutional Court. A number of decisions had been delivered in that regard, particularly Constitutional Court Orders nos. 369, 97 and 150 (adopted on 24 October 2006, 8 March 2010 and 22 May 2012 respectively), judgment no. 151 delivered on 1 April 2009, a decision of the Florence Court of 7 December 2012 and an Order of the Rome Court adopted on 15 January 2014 (see paragraphs 27-33 and 50-53 above). 82. In the Government’s submission, the applicant had also breached the principle of subsidiarity laid down in Protocol No. 15 of 24 June 2013 because she had failed to use domestic remedies before lodging her complaints with the Court. 83. Lastly, a question of constitutionality concerning an identical case to the present one had been raised by the Florence Court before the Constitutional Court (see paragraphs 52-53 above). If the Constitutional Court’s decision were to go against the claimant, the latter would still be able to lodge an application with the Court. B. The applicant’s submissions 84. The applicant submitted that any action in the ordinary courts would have been bound to fail because domestic law imposed a blanket ban on donating embryos to scientific research. 85. She also submitted that a constitutional remedy could not be regarded as a remedy that had to be used for the purposes of Article 35 § 1 of the Convention, since the Italian legal system did not provide for direct application to the Constitutional Court. 86. Lastly, she indicated that on 19 March 2014 the President of the Constitutional Court had adjourned its examination of the question raised by the Florence Court to which the Government referred pending the Grand Chamber’s decision in the present case. C. The Court’s assessment 87. The Court reiterates first of all that under Article 35 § 1 it may only deal with a matter after all domestic remedies have been exhausted. Applicants must have provided the domestic courts with the opportunity, in principle intended to be afforded to Contracting States, of preventing or putting right the violations alleged against them. That rule is based on the assumption that there is an effective remedy available in the domestic system in respect of the alleged breach. The only remedies which Article 35 § 1 requires to be exhausted are those that relate to the breach alleged and are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness: it falls to the respondent State to establish that these conditions are satisfied (see, among many other authorities, McFarlane v. Ireland [GC], no. 31333/06, § 107, 10 September 2010; Mifsud v. France (dec.) [GC], no. 57220/00, § 15, ECHR 2002 ‑ VIII; Leandro Da Silva v. Luxembourg, no. 30273/07, §§ 40 and 42, 11 February 2010; and Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 69-77, 25 March 2014). 88. In the instant case, relying on the system of constitutional review instituted by Constitutional Court judgments nos. 348 and 349 of 24 October 2007, the Government submitted that the remedies available to the applicant in domestic law had not been exhausted. They cited examples of decisions on the merits and decisions of the Constitutional Court concerning Law no. 40/2004. 89. The Court observes at the outset that, in the above-mentioned judgments nos. 348 and 349, the Constitutional Court defined the place assigned to the Convention in the Italian legal system, considering that it was of intermediate rank between an ordinary law and the Constitution. It also found that it was incumbent on the judges of the ordinary courts to interpret domestic law in a manner compliant with the Convention and the Court’s case-law. It stated that, where such an interpretation was impossible or the ordinary court had doubts as to the compatibility of domestic law with the Convention, it was bound to raise a question of constitutionality before it. 90. The Court also reiterates that in the absence of a specifically introduced remedy, the development and availability of a remedy said to exist, and its scope and application, must be justified by the Government with reference to the domestic courts’ case-law (see, mutatis mutandis, Melnītis v. Latvia, no. 30779/05, § 50, 28 February 2012; McFarlane, cited above, §§ 115-27; Costa and Pavan v. Italy, no. 54270/10, § 37, 28 August 2012; and Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09, §§ 52-58, 7 November 2013). 91. In the instant case the Court observes that the Government referred to a number of cases concerning Law no. 40/2004 but did not provide any examples of domestic decisions in which the question of donating surplus embryos to research was determined. Moreover, the Court cannot properly criticise the applicant for failing to lodge an application for a measure prohibited by law. 92. With regard to the Government’s submission that, since the adoption of judgments nos. 348 and 349, the ordinary courts are obliged to interpret the Law giving rise to the prohibition in the light of the Convention and Strasbourg case-law whereas they were not formerly bound by such an obligation, a number of considerations lead the Court to conclude that this statement is not actually being followed, by established judicial practice, in, among others, the sphere of assisted reproduction. 93. The Court notes first of all that in a similar case to the present one, which concerned the ban on donating surplus embryos to scientific research, the Florence Court decided, on 7 December 2012, to raise before the Constitutional Court the question of the constitutionality of section 13 of Law no. 40/2004 with regard to Articles 9 and 32 of the Constitution, which guarantee the freedom of scientific research and the right to health respectively (see paragraph 22 above). The Court observes, however, that the lower court did not raise any question regarding the compatibility of the ban in question with the rights guaranteed by the Convention. 94. It notes, secondly, that, barring a few exceptions, the decisions of the lower courts and of the Constitutional Court regarding Law no. 40/2004 cited by the Government (see paragraphs 78 and 81 above) do not refer to the Convention. This is the case regarding Orders nos. 369/2006 and 97/2010 of the Constitutional Court and its judgment no. 151/2009, the Orders of the Cagliari, Florence, Bologna and Salerno Courts adopted on 22 September 2007, 17 December 2007, 29 June 2009 and 9 January 2010 respectively, and of the decision of the Florence Court of 7 December 2012. 95. Admittedly, in Order no. 150 of 22 May 2012, in which it remitted to the lower court a case concerning the ban on heterologous fertilisation, the Constitutional Court did refer, inter alia, to Articles 8 and 14 of the Convention. The Court cannot fail to observe, however, that in its judgment no. 162 of 10 June 2014 in the same case the Constitutional Court examined the prohibition in question only in the light of the Articles of the Constitution that were in issue (namely, Articles 2, 31 and 32). With regard to Articles 8 and 14 of the Convention, invoked by only one of the three lower courts (see paragraph 35 above), it merely observed that the questions raised under those provisions were covered by the conclusions it had reached regarding the constitutionality issue (see paragraph 39 above). 96. Accordingly, the Orders of the Cagliari Court (of 9 November 2012) and the Rome Court (of 15 January 2014) were the only two exceptions to the failure to take account of the Convention and its case-law. Having regard to the Court’s conclusions in Costa and Pavan (cited above), the Cagliari Court authorised access by the claimants to pre-implantation diagnosis and the Rome Court raised a question of constitutionality on that point before the Constitutional Court. The fact remains that these are just two isolated cases out of the eleven referred to by the Government, which concern a different subject from the one in issue here and one in respect of which the Court has already ruled. 97. Furthermore, as the compatibility of section 13 of Law no. 40/2004 with the rights guaranteed by the Convention is a new issue, the Court is not convinced that the possibility open to the applicant to bring her complaints before an ordinary court constitutes an effective remedy. 98. Judgments nos. 348 and 349 themselves clarify the difference between the respective roles of the Strasbourg Court and the Constitutional Court, finding that the former has the task of interpreting the Convention while the latter must determine whether there is a conflict between a particular domestic provision and the rights guaranteed by the Convention, inter alia, in the light of the interpretation provided by the European Court of Human Rights (see paragraph 26 above). 99. Moreover, the decision taken on 19 March 2014 by the President of the Constitutional Court to adjourn its examination of the question raised on 7 December 2012 by the Florence Court pending a ruling by the Court in the instant case (see paragraph 53 above) is consonant with this approach. 100. In this context the Court observes that, in a recent judgment (no. 49, deposited on 26 March 2015) in which it analysed, inter alia, the place of the Convention and the Court’s case-law in the domestic legal order, the Constitutional Court indicated that the ordinary courts were only bound to comply with the Court’s case-law where it was “well established” or expressed in a “pilot judgment”. 101. In any event the Court has observed on many occasions that, in the Italian legal system, litigants are not entitled to apply directly to the Constitutional Court. Only a court which is hearing the merits of a case has the possibility of making a reference to the Constitutional Court, at the request of a party or of its own motion. Accordingly, such an application cannot be a remedy whose exhaustion is required under the Convention (see, among other authorities, Brozicek v. Italy, 19 December 1989, § 34, Series A no. 167; Immobiliare Saffi v. Italy [GC], no. 22774/93, § 42, ECHR 1999 ‑ V; C.G.I.L. and Cofferati v. Italy, no. 46967/07, § 48, 24 February 2009; Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 75, 17 September 2009; and M.C. and Others v. Italy, no. 5376/11, § 47, 3 September 2013). However, the Commission and the Court have held, with regard to other member States, that direct application to the Constitutional Court was a domestic remedy that had to be used (see, for example, W. v. Germany, no. 10785/84, Commission decision of 18 July 1986, Decisions and Reports (DR) 48, p. 102, at p. 105; Union Alimentaria Sanders S.A. v. Spain, no. 11681/85, Commission decision of 11 December 1987, DR 54, p. 101, at 107; S.B. and Others v. Belgium (dec.), no. 63403/00, 6 April 2004; and Grišankova and Grišankovs v. Latvia (dec.), no. 36117/02, ECHR 2003 ‑ II). 102. Having regard to the foregoing, the Court cannot consider that the system requiring domestic provisions to be interpreted in the light of the Convention established by judgments nos. 348 and 349 constitutes a turning point capable of refuting that conclusion (see, by converse implication, the recent decisions of the Court acknowledging the effectiveness of applications to the Turkish Constitutional Court following the creation of a system of direct application to that court: Hasan Uzun v. Turkey (dec.), no. 10755/13, §§ 25-27, 30 April 2013, and Koçintar v. Turkey (dec.), no. 77429/12, 1 July 2014). 103. The principles established in judgments nos. 348 and 349 of 24 October 2007 are to be welcomed, particularly regarding the place assigned to the Convention in the Italian legal system and the encouragement given to the national judicial authorities to interpret domestic standards and the Constitution in the light of the Convention and the Court’s case-law. The Court also notes that, in areas other than assisted reproduction, there have been many decisions in which the Constitutional Court has ruled a domestic provision unconstitutional on the basis, inter alia, of its incompatibility with the rights guaranteed under the Convention and the Court’s case-law (see, for example, judgment no. 39 of 5 March 2008 regarding legal incapacities following bankruptcy, judgment no. 93 of 17 March 2010 on the public nature of hearings in proceedings for enforcement of interim measures, and judgment no. 210 of 3 July 2013 concerning the retrospective application of criminal law). 104. However, it should first be noted that the Italian system provides only for indirect application by individuals to the Constitutional Court. Furthermore, the Government have not shown, backed up by established case-law and practice, that, where the donation of embryos to research is concerned, an action by the applicant before the ordinary courts combined with the duty on those courts to raise a question of constitutionality before the Constitutional Court in the light of the Convention amounted to an effective remedy in the present case that the applicant should have used. 105. Having regard to the foregoing and to the fact that the Constitutional Court decided to suspend its examination of a similar case pending the Court’s decision in the instant case, the objection raised by the Government must be rejected. II. COMPLIANCE WITH THE SIX-MONTH TIME-LIMIT A. The Government’s submissions 106. At the hearing the Government objected that the application had been lodged out of time, submitting that the Law banning embryo donations for scientific research had come into force on 10 March 2004 and that the applicant had not sought release of her embryos for the purpose of donating them until 14 December 2011, in a letter sent on that date to the centre for reproductive medicine where the embryos were cryopreserved. B. The applicant’s submissions 107. The applicant replied to this objection during the hearing, submitting that she had indeed made a written request to the centre for reproductive medicine for release of her embryos on 14 December 2011, but had earlier made other identical requests verbally. 108. At all events the applicant maintained that any request to the centre for reproductive medicine was bound to fail, since the applicable Law categorically prohibited the donation of embryos to scientific research. C. The Court’s assessment 109. The Court has already acknowledged that where an interference with the right relied on by an applicant emanates directly from legislation, the very maintenance in force of the impugned legislation may constitute a continuing interference with the right in question (see, for example, Dudgeon v. the United Kingdom, 22 October 1981, § 41, Series A no. 45, and Norris v. Ireland, 26 October 1988, § 38, Series A no. 142, in which the applicants, who were homosexuals, complained that laws making homosexual practices criminal offences infringed their right to respect for their private life). 110. The Court has recently proceeded on that basis in Vallianatos and Others (cited above, § 54), in which the applicants complained of a continuing violation of Articles 14 and 8 of the Convention on account of their inability, as same-sex couples, to enter into a “civil union”, whereas different-sex couples were legally able to do so. Further, in S.A.S. v. France ([GC], no. 43835/11, § 110, ECHR 2014), which concerned the statutory ban on wearing clothing designed to conceal one’s face in public places, the Court observed that the applicant’s situation was similar to that of the applicants in Dudgeon and Norris (both cited above), in which it had found a continuing interference with the exercise of the rights protected by Article 8 of the Convention. 111. The Court acknowledges that in the above-cited cases the effect of the legislative measures complained of on the daily lives of the applicants was more substantial and more direct than in the present case. Nevertheless, the statutory ban on donating embryos to scientific research in issue here does undeniably have an impact on the applicant’s private life. That impact, which results from the biological link between the applicant and her embryos and the plan to start a family that was at the origin of their creation, is a direct result of the entry into force of Law no. 40/2004 and constitutes a continuing situation in that it has continuously affected the applicant since then (see the final report of the Study Commission on embryos of 8 January 2010, which refers to potentially indefinite cryopreservation of frozen embryos, paragraph 21 above). 112. In this type of case, according to the Court’s case-law, the six-month period does not start to run until the situation complained of has come to an end (see, among other authorities, Çınar v. Turkey, no. 17864/91, Commission decision of 5 September 1994, DR 79-B). Consequently, the Court does not accept the Government’s argument that the time period runs from the date on which the Law in issue came into force. 113. Moreover, the Government’s submission is tantamount to considering that the applicant wanted to donate her embryos from the date on which the Law in issue came into force, which is not a matter that is open to speculation by the Court. 114. The objection on the ground of delay in lodging the application, raised by the Government under Article 35 § 1 of the Convention, cannot therefore be upheld. III. THE APPLICANT’S VICTIM STATUS A. The Government’s submissions 115. The Government also objected on the ground that the applicant did not have victim status, submitting that, during the period from 12 November 2003 – the date of her partner’s death – to 10 March 2004, when Law no. 40/2004 came into force, the applicant could have donated her embryos to research since there were no regulations governing the matter at that time and a donation of that sort was therefore not prohibited. B. The applicant’s submissions 116. The applicant submitted at the hearing that a very short period of time had elapsed between the date of her partner’s death and the date when the Law came into force – approximately four months – and that she had not been able to make a clear decision during that time as to what she wanted to do with the embryos obtained from the IVF treatment she had undergone. C. The Court’s assessment 117. The Court reiterates that where an interference with an applicant’s private life emanates directly from legislation, the maintenance in force of the impugned legislation constitutes a continuing interference with the exercise of the right in question. In the personal circumstances of the applicant, the very existence of this legislation continuously and directly affects her private life (see Dudgeon, § 41, and Norris, § 34, both cited above). 118. In the instant case the applicant has been unable to donate her embryos to research since Law no. 40/2004 came into force (see also paragraph 113 above). As the situation has remained unchanged since then, the fact that the applicant wanted to donate her embryos to research at the time of lodging her application is sufficient for the Court to find that she has victim status. Furthermore, with regard to the Government’s argument that the applicant could have donated her embryos to scientific research during the period between her partner’s death and the entry into force of the Law, the Court takes note of the information submitted by the applicant according to which, during the short period referred to above, she had not been able to make a clear decision concerning the fate of the embryos. 119. The Government’s objection on the ground of the applicant’s lack of victim status must therefore be dismissed. IV. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 120. Relying on Article 8 of the Convention, the applicant alleged that the ban under section 13 of Law no. 40/2004 on donating embryos to scientific research resulted in a violation of her right to respect for her private life. The relevant parts of Article 8 provide: “1. Everyone has the right to respect for his private ... life ... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. The parties’ submissions 1. The Government’s submissions 121. The Government submitted at the outset that the question whether human embryos could be donated to scientific research did not fall within the concept of “right to respect for private life”. 122. At the hearing the Government contended that Article 8 of the Convention could have applied only “indirectly” in the present case, that is, only if the applicant had wanted to start a family by having her embryos implanted and had been prevented from doing so by the application of Law no. 40/2004. 123. In any event they maintained that the alleged interference with the applicant’s private life was in accordance with the law and pursued the legitimate aim of protecting the embryo’s potential for life. 124. With regard to the proportionality of the impugned measure, the Government confined themselves in their written observations to referring to the arguments they had submitted under Article 1 of Protocol No. 1. However, at the hearing the Government submitted that the Italian legislation was not inconsistent, arguing that the applicant had wrongly affirmed that cryopreserved embryos could not develop into human lives. In that connection they submitted that, if properly carried out, cryopreservation was not limited in duration and that there were currently no scientific means by which the viability of a cryopreserved embryo could be determined without thawing it. 125. The Government also submitted that Italian law, which allowed abortion, was not incompatible with the ban on donating embryos to research, since in the event of an abortion the protection of the life of the foetus clearly had to be weighed against the situation and interests of the mother. 126. During the hearing they also observed that embryos were definitely protected under European law. In their submission, the Council of Europe Convention on Human Rights and Biomedicine (Oviedo Convention) of 4 April 1997 certainly did not require States to authorise destructive scientific research on embryos, since, in their submission, the choice as regards carrying out such research fell within the wide margin of appreciation of the States in this sphere. 127. They went on to observe that the preparatory works to Law no. 40/2004 showed that it was the end-product of a substantial amount of work that had taken account of a range of scientific and ethical opinions and questions on the subject. Moreover, the Law in question had been the subject of several referendums, regarding, inter alia, maintaining section 13, which had been declared invalid because the required threshold of votes had not been reached. 128. Furthermore, while acknowledging that Italian scientific research used embryonic cell lines imported from abroad and resulting from the destruction of the original embryos, they pointed out that the production of these cell lines was not carried out at the request of Italian laboratories and observed that there were approximately 300 embryonic cell lines in the world that were made available to the entire scientific community. In that connection they pointed out that the deliberate destruction of a human embryo could not be compared with the use of cell lines from human embryos that had already been destroyed. 129. With regard to European Union funding for scientific research, the Government submitted that the Seventh Framework Programme for research, technological development and demonstration activities and the Horizon 2020 Framework Programme for Research and Innovation (see paragraphs 63-64 above) did not provide for funding of projects involving the destruction of embryos, whether these had been created in Europe or imported from third countries. 130. They observed, lastly, that in its opinion of 18 November 2005 on adoption for birth (see paragraphs 19-20 above), the National Bioethics Committee had already tackled the subject of the fate of surplus embryos with a view to finding solutions that would respect their lives. 131. In their view, this solution could now become a reality having regard to judgment no. 162 of 10 June 2014 in which the Constitutional Court had declared the ban on heterologous fertilisation unconstitutional, thus allowing the use of surplus embryos from an in vitro fertilisation for non-destructive purposes, in accordance with the objective pursued by Italian legislation in this area. 2. The applicant’s submissions 132. The applicant affirmed at the outset that according to the Court’s case-law “private life” was a broad concept (she referred to Pretty v. the United Kingdom, no. 2346/02, § 61, ECHR 2002 ‑ III, and Evans v. the United Kingdom [GC], no. 6339/05, § 71, ECHR 2007 ‑ I). 133. She went on to submit that she had lost her partner in tragic circumstances, which was why she had not been able to start a family as she had wished. At the hearing she explained that only four months had elapsed between her partner’s death and the Law’s entry into force, so she had not had the necessary time to reflect on her plans to start a family, and that in any event the implantation of embryos post mortem was illegal. 134. Accordingly, she considered that the State also required her to witness the destruction of her embryos rather than allowing her to donate them to research, which would pursue a noble cause and be a source of comfort to her after the painful events that had occurred in her life. In those circumstances she submitted that her right to her private life was in issue. 135. She also maintained that the ban on donating embryos was completely illogical, since the only alternative offered by the system was the death of the embryos. At the hearing she pointed to the inconsistencies in the Italian legal system, submitting that the embryo’s right to life relied on by the Government was irreconcilable with the possibility available to women to abort up until the third month of pregnancy and with the use by Italian laboratories of embryonic cell lines obtained from the destruction of embryos created abroad. 136. Furthermore, she considered that the possibility of donating embryos not destined for implantation also fulfilled a public interest since research on induced pluripotent stem cells had not yet replaced research on stem cells, which was why the latter continued to feature among the most promising research methods, particularly regarding the treatment of certain incurable diseases. 137. She also submitted that the State did not have a wide margin of appreciation in the present case, particularly given the existing European consensus regarding the possibility of donating to scientific research embryos that were not destined to be implanted. 138. At the hearing she referred to the judgment of 18 October 2011 of the Court of Justice of the European Union in Oliver Brüstle v. Greenpeace eV (see paragraphs 59-61 above). Noting that this judgment was limited to prohibiting the patentability of inventions involving the destruction of human embryos, she inferred that the inventions themselves – and the prior research – were not banned at European level. 139. Lastly, she submitted that the Communication from the European Commission on the European Citizens’ Initiative “One of Us” of 28 May 2014 (see paragraphs 65-66 above) confirmed that the funding of research on embryonic human stem cells was permitted. 3. Observations of the third-party interveners (a) The European Centre for Law and Justice (ECLJ) 140. The ECLJ submitted that in the present case the interests of science – to which the applicant attached importance – did not take precedence over the respect due to the embryo, in line with the principle of the “primacy of the human being” enshrined in Article 2 of the Oviedo Convention. 141. It also observed that in all the cases raising questions related to assisted reproduction that had been brought before the Court the interference with the applicants’ private and family life stemmed from a law that prevented the couple or the mother from having a child. The situation was different here in that the applicant had decided not to have the embryos implanted even though at the time she had undergone the IVF treatment there had been no law prohibiting gestation post mortem. 142. Lastly, referring to S.H. and Others v. Austria and Evans, both cited above, it observed that the member States were afforded a wide margin of appreciation in this area. (b) The associations Movimento per la vita, Scienza e vita and Forum delle associazioni familiari, represented by Mr Casini 143. These associations submitted that destructive experiments on human embryos, which were “subjects”, were banned by law and that the Oviedo Convention did not impose any obligation to authorise such experiments. 144. They also observed that the member States enjoyed a wide margin of appreciation in this area. (c) The associations Luca Coscioni, Amica Cicogna Onlus, L’Altra Cicogna Onlus and Cerco Un Bimbo and forty-six members of the Italian Parliament, represented by Ms Gallo 145. These third-party interveners submitted that the concept of “private life” was an evolving one, that it was not susceptible to exhaustive definition, and that the applicant claimed, inter alia, the right to respect for her choice to donate her own biological matter to research, namely, embryos that were no longer destined for a parental project and were in any event bound for destruction. 146. They added that the interference in question was not justified by the purpose relied on, since Italian law did not afford absolute protection to the embryo’s life. (d) The associations VOX – Osservatorio italiano sui Diritti, SIFES (Society of Fertility, Sterility and Reproductive Medicine) and Cittadinanzattiva, represented by Ms D’Amico, Ms Costantini, Mr Clara, Ms Ragni and Ms Liberali 147. These associations pointed out that section 13 of Law no. 40/2004 curtailed the freedom of individuals to decide the fate of their own embryos, which had to be cryopreserved indefinitely, thus incurring substantial costs. 148. According to them, cryopreservation was not in any way useful to embryos destined to die, nor to couples, who were not generally keen to use embryos that had been cryopreserved for a long time for implantation, as the “quality” of these embryos diminished over time. Cryopreservation was just as useless for the medical centres where the embryos were stored. B. The Court’s assessment 1. Applicability to the present case of Article 8 of the Convention and admissibility of the complaint raised by the applicant 149. In the present case the Court is called upon for the first time to rule on the question whether the “right to respect for private life” guaranteed by Article 8 of the Convention can encompass the right invoked before it by the applicant to make use of embryos obtained from in vitro fertilisation for the purposes of donating them to scientific research. 150. The Government submitted that the provision in question could have applied only indirectly in the instant case and exclusively under its “family life” aspect, that is, only if the applicant had wanted to start a family by means of cryopreservation and the subsequent implantation of her embryos and had been prevented from doing so by the application of Law no. 40/2004. 151. However, the applicant indicated in the application form (see paragraph 14 above) and repeated at the hearing (see paragraph 116 above) that, since the death of her partner, she was no longer intending to start a family. Moreover, she did not at any time allege before the Court that there had been a violation of her right to respect for her family life under Article 8 of the Convention. 152. In reality the subject matter of the case brought before the Court concerns the restriction of the right asserted by the applicant to decide the fate of her embryos, a right which at the very most relates to “private life”. 153. Like the applicant, the Court observes at the outset that, according to its case-law, the concept of “private life” within the meaning of Article 8 of the Convention is a broad one not susceptible to exhaustive definition and embraces, among other things, a right to self-determination (see Pretty, cited above, § 61). The concept also incorporates the right to respect for both the decisions to become and not to become a parent (see Evans, cited above, § 71, and A, B and C v. Ireland [GC], no. 25579/05, § 212, ECHR 2010). 154. In the cases examined by the Court that have raised the particular question of the fate of embryos obtained from assisted reproduction, the Court has had regard to the parties’ freedom of choice. 155. In Evans, when analysing the balance to be struck between the conflicting rights that the parties to in vitro fertilisation may rely on under Article 8 of the Convention, the Grand Chamber “[did] not consider that the applicant’s right to respect for the decision to become a parent in the genetic sense should be accorded greater weight than [her ex-partner]’s right to respect for his decision not to have a genetically related child with her” (see Evans, cited above, § 90). 156. Furthermore, in Knecht v. Romania (no. 10048/10, 2 October 2012), where the applicant complained, inter alia, of the refusal of the national authorities to authorise the transfer of her embryos from the medical centre where they were being stored to a specialised clinic of her choice, the Court held that Article 8 was applicable only from the standpoint of respect for the applicant’s private life (ibid., § 55) even though the applicant had also alleged an infringement of her right to respect for her family life (ibid., § 51). 157. With regard to domestic law, the Court observes that, as submitted by the Government at the hearing, judgment no. 162 of 10 June 2014 in which the Constitutional Court declared unconstitutional the ban on heterologous fertilisation (see paragraphs 34-39 above) should now allow “adoption for birth”, a practice which consists in a couple or a woman adopting surplus embryos in order to have them implanted, and had been envisaged by the National Bioethics Committee in 2005. Furthermore, the Court notes that in the judgment in question the Constitutional Court found that the applicants’ choice to become parents and found a family with children was an aspect of “their freedom of self-determination regarding the sphere of their private and family life” (see paragraph 37 above). This means that the Italian legal system also attaches importance to the freedom of choice of parties to in vitro fertilisation regarding the fate of embryos not destined for implantation. 158. In the instant case the Court must also have regard to the link existing between the person who has undergone in vitro fertilisation and the embryos thus conceived, which link is due to the fact that the embryos contain the genetic material of the person in question and accordingly represent a constituent part of that person’s genetic material and biological identity. 159. The Court concludes that the applicant’s ability to exercise a conscious and considered choice regarding the fate of her embryos concerns an intimate aspect of her personal life and accordingly relates to her right to self-determination. Article 8 of the Convention, from the standpoint of the right to respect for private life, is therefore applicable in the present case. 160. The Court observes, lastly, that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and cannot be declared inadmissible on any other grounds. It must therefore be declared admissible. 2. Merits of the complaint raised by the applicant (a) Whether there has been an “interference” “in accordance with the law” 161. Like the parties, the Court considers that the ban under section 13 of Law no. 40/2004 on donating to scientific research embryos obtained from an in vitro fertilisation and not destined for implantation constitutes an interference with the applicant’s right to respect for her private life. It points out in this connection that at the time when the applicant had recourse to in vitro fertilisation there were no legal provisions regulating the donation of non-implanted embryos obtained by that technique. Consequently, until the Law came into force the applicant was not in any way prevented from donating her embryos to scientific research. (b) The legitimacy of the aim pursued 162. During the hearing the Government submitted that the objective pursued by the measure complained of was to protect the “embryo’s potential for life”. 163. The Court reiterates that the enumeration of the exceptions to the individual’s right to respect for his private life, as listed in Article 8 § 2, is exhaustive and that their definition is restrictive. For it to be compatible with the Convention, a limitation of this freedom must, in particular, pursue an aim that can be linked to one of those listed in this provision (see S.A.S. v. France, cited above, § 113). 164. The Court observes that neither in their written observations nor in the reply to the question asked at the hearing did the Government refer to the provisions of paragraph 2 of Article 8 of the Convention. 165. However, in their written observations on Article 8 of the Convention the Government referred to the considerations they had set out regarding Article 1 of Protocol No. 1 (see paragraph 124 above) according to which, in the Italian legal system, the human embryo is considered as a subject of law entitled to the respect due to human dignity (see paragraph 200 below). 166. The Court also notes that, similarly, two third-party interveners (the ECLJ and the associations Movimento per la vita, Scienza e vita and Forum delle associazioni familiari) submitted that the human embryo had the status of “subject” (see paragraphs 140 and 143 above). 167. The Court acknowledges that the “protection of the embryo’s potential for life” may be linked to the aim of protecting morals and the rights and freedoms of others, in the terms in which this concept is meant by the Government (see also Costa and Pavan, cited above, §§ 45 and 59). However, this does not involve any assessment by the Court as to whether the word “others” extends to human embryos (see A, B and C v. Ireland, cited above, § 228). (c) Necessity of the measure in a democratic society (i) The principles established in the Court’s case-law regarding assisted reproduction 168. The Court reiterates that in determining whether an impugned measure was “necessary in a democratic society”, it will consider whether, in the light of the case as a whole, the reasons adduced to justify that measure were relevant and sufficient for the purposes of paragraph 2 of Article 8 (see, among many other authorities, S.H. and Others v. Austria, cited above, § 91; Olsson v. Sweden (no. 1), 24 March 1988, § 68, Series A no. 130; K. and T. v. Finland [GC], no. 25702/94, § 154, ECHR 2001 ‑ VII; Kutzner v. Germany, no. 46544/99, § 65, ECHR 2002 ‑ I; and P., C. and S. v. the United Kingdom, no. 56547/00, § 114, ECHR 2002 ‑ VI). 169. Furthermore, a number of factors must be taken into account when determining the breadth of the margin of appreciation to be enjoyed by the State in any case under Article 8. Where a particularly important facet of an individual’s existence or identity is at stake, the margin allowed to the State will usually be restricted (see Evans, cited above, § 77, and the other authorities cited therein, and Dickson v. the United Kingdom [GC], no. 44362/04, § 78, ECHR 2007 ‑ V). Where, however, there is no consensus within the member States of the Council of Europe, either as to the relative importance of the interest at stake or as to the best means of protecting it, particularly where the case raises sensitive moral or ethical issues, the margin will be wider (see S.H. and Others v. Austria, cited above, § 94; Evans, cited above, § 77; X, Y and Z v. the United Kingdom, 22 April 1997, § 44, Reports of Judgments and Decisions 1997 ‑ II; Fretté v. France, no. 36515/97, § 41, ECHR 2002 ‑ I; Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 85, ECHR 2002 ‑ VI; and A, B and C v. Ireland, cited above, § 232). 170. The Court has also observed that in any event “the solutions reached by the legislature are not beyond [its] scrutiny. It falls to the Court to examine carefully the arguments taken into consideration during the legislative process and leading to the choices that have been made by the legislature and to determine whether a fair balance has been struck between the competing interests of the State and those directly affected by those legislative choices” (see S.H. and Others v. Austria, cited above, § 97). 171. In the above-mentioned case the Court also observed that the Austrian Parliament had not yet “undertaken a thorough assessment of the rules governing artificial procreation, taking into account the dynamic developments in science and society” and pointed out that “this area, in which the law appear[ed] to be continuously evolving and which [was] subject to a particularly dynamic development in science and law, need[ed] to be kept under review by the Contracting States” (see S.H. and Others v. Austria, cited above, §§ 117-18). 172. In Costa and Pavan (cited above, § 64), the Court held that Italian legislation on pre-implantation diagnosis lacked consistency in that it did not permit implantation to be limited to the embryos not affected by the disease of which the individuals concerned were healthy carriers but did allow the applicant to abort a foetus which would have been born with the disease in question. 173. It also considered that it was not its task to substitute its own judgment for that of the national authorities in choosing the most appropriate regulations governing assisted reproduction, observing in particular that the use of in vitro fertilisation techniques raised sensitive moral and ethical questions in an area that was constantly evolving (see Knecht, cited above, § 59). (ii) Application of the above-mentioned principles to the present case 174. The Court observes at the outset that, unlike the above-cited cases, the instant case does not concern prospective parenthood. Accordingly, while it is of course important, the right invoked by the applicant to donate embryos to scientific research is not one of the core rights attracting the protection of Article 8 of the Convention, as it does not concern a particularly important aspect of the applicant’s existence and identity. 175. Consequently, and having regard to the principles established in its case-law, the Court considers that the respondent State should be afforded a wide margin of appreciation in the present case. 176. Furthermore, it observes that the question of the donation of embryos not destined for implantation clearly raises “delicate moral and ethical questions” (see Evans; S.H. and Others v. Austria; and Knecht, all cited above) and that the comparative law materials available to the Court (see paragraphs 69-76 above) show that, contrary to the applicant’s affirmations, there is no European consensus on the subject (see paragraph 137 above). 177. Admittedly, certain member States have adopted a non-prohibitive approach in this area: seventeen of the forty member States about which the Court has information allow research on human embryonic cell lines. In some other States there are no regulations, but the relevant practices are non-prohibitive. 178. However, certain States (Andorra, Latvia, Croatia and Malta) have enacted legislation expressly prohibiting any research on embryonic cells. Others allow research of this type only subject to strict conditions, requiring for example that the purpose be to protect the embryo’s health or that the research use cells imported from abroad (this is the case in Slovakia, Germany, Austria and Italy). 179. Italy is therefore not the only member State of the Council of Europe which bans the donation of human embryos to scientific research. 180. Furthermore, the above-cited Council of Europe and European Union materials confirm that the domestic authorities enjoy a broad margin of discretion to enact restrictive legislation where the destruction of human embryos is at stake, having regard, inter alia, to the ethical and moral questions inherent in the concept of the beginning of human life and the plurality of existing views on the subject among the different member States. 181. An example of this is the Oviedo Convention, Article 27 of which provides that none of its provisions should be interpreted as limiting the possibility for a Party to grant a wider measure of protection with regard to the application of biology and medicine. Opinion no. 15, adopted on 14 November 2000 by the European Group on Ethics in Science and New Technologies to the European Commission (see paragraph 58 above), Resolution 1352 (2003) of the Parliamentary Assembly of the Council of Europe on human stem cell research (see Part III, point F above) and Regulation (EC) No 1394/2007 of the European Parliament and of the Council of 13 November 2007 on advanced therapy medicinal products (see Part IV, point B above) contain similar provisions. 182. The limits imposed at European level aim rather to temper excesses in this area. This is the case for example of the ban on creating human embryos for scientific research provided for in Article 18 of the Oviedo Convention, or the ban on patenting scientific inventions where the process involves the destruction of human embryos (see the judgment of the Court of Justice of the European Union in Oliver Brüstle v. Greenpeace eV of 18 October 2011). 183. That being said, the State’s margin of appreciation is not unlimited and it is the Court’s task to examine the arguments to which the legislature has had regard in reaching the solutions it has retained and to determine whether a fair balance has been struck between the interests of the State and those of the individuals directly affected by the solutions in question (see Evans, cited above, § 86, and S.H. and Others v. Austria, cited above, § 97). 184. The Court notes in this context that, relying on documents relating to the preparatory works to Law no. 40/2004, the Government submitted at the hearing that the drafting of the Law had given rise to discussions that had taken account of the different scientific and ethical opinions and questions on the subject (see paragraph 127 above). 185. It can be seen from a report by the XIIth Standing Committee submitted to Parliament on 26 March 2002 that doctors, specialists and associations working in the field of assisted reproduction had contributed to the discussions and that the liveliest part of these had in general concerned the sphere of individual freedoms, pitting the advocates of a secular conception of the State against those in favour of a denominational approach. 186. Furthermore, during the discussions of 19 January 2004, Law no. 40/2004 had also been criticised on the ground, among others, that recognition of the embryo as a legal subject under section 1 of the Law gave rise, according to some, to a series of prohibitions, such as the use of heterologous fertilisation and the use of cryopreserved embryos not destined for implantation for scientific research. 187. Like the Government, the Court reiterates that Law no. 40/2004 was the subject of several referendums that were declared invalid for failure to reach the required threshold of votes cast. In order to promote the development of scientific research in Italy in the area of diseases that are difficult to cure, one such referendum proposed to repeal the part of section 13 that made authorisation to carry out scientific research on embryos conditional on protecting their health and development. 188. The Court therefore observes that, during the drafting process of the Law in question the legislature had already taken account of the different interests at stake, particularly the State’s interest in protecting the embryo and that of the persons concerned in exercising their right to individual self-determination in the form of donating their embryos to research. 189. The Court notes the applicant’s allegation that Italian legislation on medically assisted reproduction is inconsistent, in support of her submission that the interference complained of is disproportionate. 190. In her written observations and at the hearing, the applicant observed that it was difficult to reconcile the protection of the embryo advocated by the Government with a woman’s legal ability to terminate a pregnancy on therapeutic grounds up until the third month and also the use by Italian researchers of embryonic cell lines obtained from embryos that had been destroyed abroad. 191. The Court’s task is not to review the consistency of the Italian legislation in the abstract. In order to be relevant for the purposes of the Court’s analysis, the inconsistencies complained of by the applicant must relate to the subject of the complaint that she raises before the Court, namely, the restriction of her right to self-determination regarding the fate of her embryos (see, mutatis mutandis, Olsson, cited above, § 54, and Knecht, cited above, § 59). 192. With regard to the research carried out in Italy on imported embryonic cell lines taken from embryos that had been destroyed abroad, the Court observes that, while the right asserted by the applicant to decide the fate of her embryos relates to her wish to contribute to scientific research, that cannot however be seen as a circumstance directly affecting the applicant. 193. Furthermore, the Court takes note of the information provided by the Government during the hearing, according to which the embryonic cell lines used in Italian laboratories for research purposes are never produced at the request of the Italian authorities. 194. It agrees with the Government that the deliberate and active destruction of a human embryo cannot be compared with the use of cell lines obtained from human embryos destroyed at an earlier stage. 195. It concludes from the foregoing that, even supposing that there are inconsistencies in the legislation as alleged by the applicant, these are not capable of directly affecting the right invoked by her in the instant case. 196. Lastly, the Court observes that in this case the choice to donate the embryos in question to scientific research emanates from the applicant alone, since her partner is dead. The Court does not have any evidence that her partner, who had the same interest in the embryos in question as the applicant at the time of fertilisation, would have made the same choice. Moreover, there are no regulations governing this situation at domestic level. 197. For the reasons outlined above, the Court considers that the Government have not overstepped the wide margin of appreciation enjoyed by them in the present case and that the ban in question was “necessary in a democratic society” within the meaning of Article 8 § 2 of the Convention. 198. There has therefore been no violation of the applicant’s right to respect for her private life under Article 8 of the Convention. V. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 199. Relying on Article 1 of Protocol No. 1, the applicant complained that she was unable to donate her embryos and was obliged to keep them in a state of cryopreservation until their death. Article 1 of Protocol No. 1 provides: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” A. The parties’ submissions 1. The Government’s submissions 200. The Government submitted at the outset that the human embryo could not be regarded as a “thing” and that it was in any event unacceptable to assign an economic value to it. They observed that in the Italian legal system the human embryo was considered as a subject of law entitled to the respect due to human dignity. 201. They also submitted that the Court afforded member States a wide margin of appreciation regarding the determination of the beginning of human life (they referred to Evans, cited above, § 81), particularly in areas such as this, where complex moral and ethical questions were in issue that were not the subject of a consensus among the member States of the Council of Europe. 202. They concluded that there had been no violation of Article 1 of Protocol No. 1 in the present case. 2. The applicant’s submissions 203. The applicant submitted that embryos conceived by in vitro fertilisation could not be regarded as “individuals” because if they were not implanted they were not destined to develop into foetuses and be born. She concluded that, from a legal point of view, they were “possessions”. 204. In the circumstances she considered that she had a right of ownership of her embryos and that the State had imposed restrictions on that right that were not justified on any public-interest grounds. In her view, the protection of the embryos’ potential for life could not reasonably be invoked in that regard since they were destined to be eliminated. 3. Observations of the third parties (a) The European Centre for Law and Justice (ECLJ) 205. The ECLJ submitted that embryos could not be regarded as “things” and accordingly could not be deliberately destroyed. It also argued that the concept of “possession” had an inherently economic connotation which had to be ruled out in the case of human embryos. 206. Referring to Vo v. France ([GC], no. 53924/00, § 82, ECHR 2004 ‑ VIII), it pointed out, lastly, that the Court allowed States to determine in their domestic legal order “when the right to life begins” and that it afforded them a wide margin of appreciation in this area (see A, B and C v. Ireland, cited above, § 237). (b) The associations Movimento per la vita, Scienza e vita and Forum delle associazioni familiari, represented by Mr Casini 207. These third-party interveners submitted that the human embryo could never be regarded as a “thing”. 208. They submitted, further, that Italian legislation on the subject was consistent. While they acknowledged that abortion on therapeutic grounds was legal, they observed that this was not because the embryo could be regarded as a “thing” but because account was taken of the different interests involved, particularly those of the mother. (c) The associations Luca Coscioni, Amica Cicogna Onlus, L’Altra Cicogna Onlus and Cerco Un Bimbo and forty-six members of the Italian Parliament, represented by Ms Gallo 209. Ms Gallo reiterated the arguments submitted by the applicant concerning the status of the embryo. (d) The associations VOX – Osservatorio italiano sui Diritti, SIFES (Society of Fertility, Sterility and Reproductive Medicine) and Cittadinanzattiva, represented by Ms D’Amico, Ms Costantini, Mr Clara, Ms Ragni and Ms Liberali 210. These third-party interveners did not submit any observations under Article 1 of Protocol No. 1. B. The Court’s assessment 1. The principles established in the Court’s case-law 211. The Court reiterates that the concept of “possessions” within the meaning of Article 1 of Protocol No. 1 has an autonomous meaning which is not limited to ownership of material goods and is independent from the formal classification in domestic law: certain other rights and interests constituting assets can also be regarded as “property rights”, and thus as “possessions” for the purposes of this provision. In each case the issue that needs to be examined is whether the circumstances of the case, considered as a whole, conferred on the applicant title to a substantive interest protected by Article 1 of Protocol No. 1 (see Iatridis v. Greece [GC], no. 31107/96, § 54, ECHR 1999 ‑ II; Beyeler v. Italy [GC], no. 33202/96, § 100, ECHR 2000 ‑ I; and Broniowski v. Poland [GC], no. 31443/96, § 129, ECHR 2004 ‑ V). 212. Article 1 of Protocol No. 1 applies only to a person’s existing possessions. Future income cannot be considered to constitute a “possession” unless it has already been earned or is definitely payable. Further, the hope that a long-extinguished property right may be revived cannot be regarded as a “possession”; nor can a conditional claim which has lapsed as a result of a failure to fulfil the condition (see Gratzinger and Gratzingerova v. the Czech Republic (dec.), no. 39794/98, § 69, ECHR 2002 ‑ VII). 213. However, in certain circumstances a “legitimate expectation” of obtaining an asset may also enjoy the protection of Article 1 of Protocol No. 1. Thus, where a proprietary interest is in the nature of a claim, the person in whom it is vested may be regarded as having a legitimate expectation if there is a sufficient basis for the interest in national law, for example where there is settled case-law of the domestic courts confirming its existence (see Kopecký v. Slovakia [GC], no. 44912/98, § 52, ECHR 2004 ‑ IX). 2. Application of the above principles to the present case 214. The Court notes that the present case raises the preliminary question of the applicability of Article 1 of Protocol No. 1 to the facts of the instant case. It notes that the parties have diametrically opposed views on this matter, especially regarding the status of the human embryo in vitro. 215. It considers, however, that it is not necessary to examine here the sensitive and controversial question of when human life begins as Article 2 of the Convention is not in issue in the instant case. With regard to Article 1 of Protocol No. 1, the Court considers that it does not apply to the present case. Having regard to the economic and pecuniary scope of that Article, human embryos cannot be reduced to “possessions” within the meaning of that provision. 216. As Article 1 of Protocol No. 1 is not applicable in the instant case, this part of the application must be rejected as incompatible ratione materiae with the provisions of the Convention, in accordance with Article 35 §§ 3 and 4 thereof. | The Court, which was called upon for the first time to rule on this issue, held that Article 8 (right to respect for private and family life) of the Convention was applicable in this case under its “private life” aspect, as the embryos in question contained the applicant’s genetic material and accordingly represented a constituent part of her identity. The Court considered at the outset that Italy was to be given considerable room for manoeuvre (“wide margin of appreciation”) on this sensitive question, as confirmed by the lack of a European consensus and the international texts on this subject. It then noted that the drafting process for Law no. 40/2004 had given rise to considerable discussions and that the Italian legislature had taken account of the State’s interest in protecting the embryo and the interest of the individuals concerned in exercising their right to self-determination. The Court further stated that it was not necessary in this case to examine the sensitive and controversial question of when human life begins, as Article 2 (right to life) of the Convention was not in issue. Noting, lastly that there was no evidence that the applicant’s deceased partner would have wished to donate the embryos to medical research, the Court concluded that the ban in question had been necessary in a democratic society. In consequence, the Court held that there had been no violation of Article 8 of the Convention. Lastly, with regard to Article 1 (protection of property) of Protocol No. 1 to the Convention, the Court considered that it did not apply to the present case, since human embryos could not be reduced to “possessions” within the meaning of that provision. This complaint was accordingly dismissed. |
883 | Public or political figures | II. RELEVANT DOMESTIC AND EUROPEAN LAW A. The Basic Law 39. The relevant provisions of the Basic Law are worded as follows : Article 1 § 1 “ The dignity of human beings is inviolable. All public authorities have a duty to respect and protect it.” Article 2 § 1 “Everyone shall have the right to the free development of their personality provided that they do not interfere with the rights of others or violate the constitutional order or moral law [ Sittengesetz ]. ” Article 5 §§ 1 and 2 “1. Everyone shall have the right freely to express and disseminate his or her opinions in speech, writing and pictures and freely to obtain information from generally accessible sources. Freedom of the press and freedom of reporting on the radio and in films shall be guaranteed. There shall be no censorship. 2. These rights shall be subject to the limitations laid down by the provisions of the general laws and by statutory provisions aimed at protecting young people and to the obligation to respect personal honour [ Recht der persönlichen Ehre ]. ” Article 6 §§ 1 and 2 “1. Marriage and the family enjoy the special protection of the State. 2. The care and upbringing of children is the natural right of parents and a duty primarily incumbent on them. The State community shall oversee the performance of that duty. ” B. The Copyright ( Arts Domain ) Act 40. Section 22(1) of the Copyright ( Arts Domain ) Act provides that images can only be disseminated with the express approval of the person concerned. 41. Section 23(1) no. 1 of that Act provides for exceptions to that rule, particularly where the images portray an aspect of contemporary society ( Bildnisse aus dem Bereich der Zeitgeschichte ) on condition that publication does not interfere with a legitimate interest ( berechtigtes Interesse ) of the person concerned (section 23(2)). C. Resolution 1165 (1998) of the Parliamentary Assembly of the Council of Europe on the right to privacy 42. The full text of this resolution, adopted by the Parliamentary Assembly on 26 June 1998, is worded as follows: “1. The Assembly recalls the current affairs debate it held on the right to privacy during its September 1997 session, a few weeks after the accident which cost the Princess of Wales her life. 2. On that occasion, some people called for the protection of privacy, and in particular that of public figures, to be reinforced at the European level by means of a convention, while others believed that privacy was sufficiently protected by national legislation and the European Convention on Human Rights, and that freedom of expression should not be jeopardised. 3. In order to explore the matter further, the Committee on Legal Affairs and Human Rights organised a hearing in Paris on 16 December 1997 with the participation of public figures or their representatives and the media. 4. The right to privacy, guaranteed by Article 8 of the European Convention on Human Rights, has already been defined by the Assembly in the declaration on mass communication media and human rights, contained within Resolution 428 (1970), as ‘ the right to live one ’ s own life with a minimum of interference ’. 5. In view of the new communication technologies which make it possible to store and use personal data, the right to control one ’ s own data should be added to this definition. 6. The Assembly is aware that personal privacy is often invaded, even in countries with specific legislation to protect it, as people ’ s private lives have become a highly lucrative commodity for certain sectors of the media. The victims are essentially public figures, since details of their private lives serve as a stimulus to sales. At the same time, public figures must recognise that the special position they occupy in society - in many cases by choice - automatically entails increased pressure on their privacy. 7. Public figures are persons holding public office and/or using public resources and, more broadly speaking, all those who play a role in public life, whether in politics, the economy, the arts, the social sphere, sport or in any other domain. 8. It is often in the name of a one-sided interpretation of the right to freedom of expression, which is guaranteed in Article 10 of the European Convention on Human Rights, that the media invade people ’ s privacy, claiming that their readers are entitled to know everything about public figures. 9. Certain facts relating to the private lives of public figures, particularly politicians, may indeed be of interest to citizens, and it may therefore be legitimate for readers, who are also voters, to be informed of those facts. 10. It is therefore necessary to find a way of balancing the exercise of two fundamental rights, both of which are guaranteed by the European Convention on Human Rights: the right to respect for one ’ s private life and the right to freedom of expression. 11. The Assembly reaffirms the importance of every person ’ s right to privacy, and of the right to freedom of expression, as fundamental to a democratic society. These rights are neither absolute nor in any hierarchical order, since they are of equal value. 12. However, the Assembly points out that the right to privacy afforded by Article 8 of the European Convention on Human Rights should not only protect an individual against interference by public authorities, but also against interference by private persons or institutions, including the mass media. 13. The Assembly believes that, since all member states have now ratified the European Convention on Human Rights, and since many systems of national legislation comprise provisions guaranteeing this protection, there is no need to propose that a new convention guaranteeing the right to privacy should be adopted. 14. The Assembly calls upon the governments of the member states to pass legislation, if no such legislation yet exists, guaranteeing the right to privacy containing the following guidelines, or if such legislation already exists, to supplement it with these guidelines: (i) the possibility of taking an action under civil law should be guaranteed, to enable a victim to claim possible damages for invasion of privacy; (ii) editors and journalists should be rendered liable for invasions of privacy by their publications, as they are for libel; (iii) when editors have published information that proves to be false, they should be required to publish equally prominent corrections at the request of those concerned; ( iv) economic penalties should be envisaged for publishing groups which systematically invade people ’ s privacy; (v) following or chasing persons to photograph, film or record them, in such a manner that they are prevented from enjoying the normal peace and quiet they expect in their private lives or even such that they are caused actual physical harm, should be prohibited; (vi) a civil action (private lawsuit) by the victim should be allowed against a photographer or a person directly involved, where paparazzi have trespassed or used ‘ visual or auditory enhancement devices ’ to capture recordings that they otherwise could not have captured without trespassing; (vii) provision should be made for anyone who knows that information or images relating to his or her private life are about to be disseminated to initiate emergency judicial proceedings, such as summary applications for an interim order or an injunction postponing the dissemination of the information, subject to an assessment by the court as to the merits of the claim of an invasion of privacy; (viii) the media should be encouraged to create their own guidelines for publication and to set up an institute with which an individual can lodge complaints of invasion of privacy and demand that a rectification be published. 15. It invites those governments which have not yet done so to ratify without delay the Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data. 16. The Assembly also calls upon the governments of the member states to: (i) encourage the professional bodies that represent journalists to draw up certain criteria for entry to the profession, as well as standards for self-regulation and a code of journalistic conduct; (ii) promote the inclusion in journalism training programmes of a course in law, highlighting the importance of the right to privacy vis-à-vis society as a whole; (iii) foster the development of media education on a wider scale, as part of education about human rights and responsibilities, in order to raise media users ’ awareness of what the right to privacy necessarily entails; (iv) facilitate access to the courts and simplify the legal procedures relating to press offences, in order to ensure that victims ’ rights are better protected. ” THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 43. The applicant submitted that the German court decisions had infringed her right to respect for her private and family life, guaranteed by Article 8 of the Convention, which is worded as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Submissions of the parties and interveners 1. The applicant 44. The applicant stated that she had spent more than ten years in unsuccessful litigation in the German courts trying to establish her right to the protection of her private life. She alleged that as soon as she left her house she was constantly hounded by paparazzi who followed her every daily movement, be it crossing the road, fetching her children from school, doing her shopping, out walking, engaging in sport or going on holiday. In her submission, the protection afforded to the private life of a public figure like herself was minimal under German law because the concept of a “ secluded place ” as defined by the Federal Court of Justice and the Federal Constitutional Court was much too narrow in that respect. Furthermore, in order to benefit from that protection the onus was on her to establish every time that she had been in a secluded place. She was thus deprived of any privacy and could not move about freely without being a target for the paparazzi. She affirmed that in France her prior agreement was necessary for the publication of any photos not showing her at an official event. Such photos were regularly taken in France and then sold and published in Germany. The protection of private life from which she benefited in France was therefore systematically circumvented by virtue of the decisions of the German courts. On the subject of the freedom of the press, the applicant stated that she was aware of the essential role played by the press in a democratic society in terms of informing and forming public opinion, but in her case it was just the entertainment press seeking to satisfy its readers ’ voyeuristic tendencies and make huge profits from generally innocuous photos showing her going about her daily business. Lastly, the applicant stressed that it was materially impossible to establish in respect of every photo whether or not she had been in a secluded place. As the judicial proceedings were generally held several months after publication of the photos, she was obliged to keep a permanent record of her every movement in order to protect herself from paparazzi who might photograph her. With regard to many of the photos that were the subject of this application, it was impossible to determine the exact time and place at which they had been taken. 2. The Government 45. The Government submitted that German law, while taking account of the fundamental role of the freedom of the press in a democratic society, contained sufficient safeguards to prevent any abuse and ensure the effective protection of the private life of even public figures. In their submission, the German courts had in the instant case struck a fair balance between the applicant ’ s rights to respect for her private life guaranteed by Article 8 and the freedom of the press guaranteed by Article 10, having regard to the margin of appreciation available to the State in this area. The courts had found in the first place that the photos had not been taken in a secluded place and had, subsequently, examined the limits on the protection of private life, particularly in the light of the freedom of the press and even where the publication of photos by the entertainment press was concerned. The protection of the private life of a figure of contemporary society “ par excellence ” did not require the publication of photos without his or her authorisation to be limited to showing the person in question engaged in their official duties. The public had a legitimate interest in knowing how the person behaved generally in public. The Government submitted that this definition of the freedom of the press by the Federal Constitutional Court was compatible with Article 10 and the European Court ’ s relevant case-law. Furthermore, the concept of a secluded place was only one factor, albeit an important one, of which the domestic courts took account when balancing the protection of private life against the freedom of the press. Accordingly, while private life was less well protected where a public figure was photographed in a public place, other factors could also be taken into consideration, such as the nature of the photos, for example, which should not shock the public. Lastly, the Government observed that the decision of the Federal Court of Justice – which had held that the publication of photos of the applicant with the actor Vincent Lindon in a restaurant courtyard in Saint-Rémy-de-Provence were unlawful – showed that the applicant ’ s private life was protected even outside her home. 3. The interveners 46. The Association of German Magazine Publishers submitted that German law, which was halfway between French law and United Kingdom law, struck a fair balance between the right to protection of private life and the freedom of the press. In its submission, it also complied with the principles set out in Resolution 1165 of the Parliamentary Assembly of the Council of Europe on the right to privacy and the European Court ’ s case-law, which had always stressed the fundamental role of the press in a democratic society. The public ’ s legitimate interest in being informed was not limited to politicians, but extended to public figures who had become known for other reasons. The press ’ s role of “watchdog” could not be narrowly interpreted here. In that connection, account should also be taken of the fact that the boundary between political commentary and entertainment was becoming increasingly blurred. Given that there was no uniform European standard concerning the protection of private life, the State had a wide margin of appreciation in this area. 47. Burda joined the observations of the Association of German Magazine Publishers and stated that German law required the courts to balance the competing interests of informing the public and protecting the right to control the use of one ’ s image very strictly and on a case - by - case basis. Even figures of contemporary society “ par excellence ” enjoyed a not inconsiderable degree of protection, and recent case-law had even tended towards reinforcing that protection. Since the death of her mother in 1982, the applicant had officially been First Lady of the reigning family in Monaco and was as such an example for the public ( Vorbildfunktion ). Moreover, the Grimaldi family had always sought to attract media attention and was therefore itself responsible for the public interest in it. The applicant could not therefore, especially if account were taken of her official functions, be regarded as a victim of the press. The publication of the photos in question had not infringed her right to control the use of her image because they had been taken while she was in public and had not been damaging to her reputation. B. The Court ’ s assessment 1. As regards the subject of the application 48. The Court notes at the outset that the photos of the applicant with her children are no longer the subject of this application, as it stated in its admissibility decision of 8 July 2003. The same applies to the photos published in Freizeit Revue magazine ( issue no. 30 of 22 July 1993 ) showing the applicant with Vincent Lindon at the far end of a restaurant courtyard in Saint-Rémy-de-Provence (see paragraph 11 above). In its judgment of 19 December 1995, the Federal Court of Justice prohibited any further publication of the photos on the ground that they infringed the applicant ’ s right to respect for her private life (see paragraph 23 above). 49. Accordingly, the Court considers it important to specify that the present application concerns the following photos, which were published as part of a series of articles about the applicant : (i) the photo published in Bunte magazine ( issue no. 32 of 5 August 1993 ) showing the applicant on horseback (see paragraph 12 above) (ii) the photos published in Bunte magazine ( issue no. 34 of 19 August 1993) showing the applicant shopping on her own; with Mr Vincent Lindon in a restaurant; alone on a bicycle; and with her bodyguard at a market (see paragraph 13 above); (iii) the photos published in Bunte magazine ( issue no. 10 of 27 February 1997 ) showing the applicant on a skiing holiday in Austria (see paragraph 1 4 above); (iv ) the photos published in Bunte magazine ( issue no. 1 2 of 13 March 1997 ) showing the applicant with Prince Ernst August von Hannover and alone leaving her Parisian residence (see paragraph 15 above); (v) the photos published in Bunte magazine ( issue no. 16 of 10 April 1997 ) showing the applicant playing tennis with Prince Ernst August von Hannover and both of them putting their bicycles down (see paragraph 16 above); (vi) the photos published in Neue Post magazine ( issue no. 35/97) showing the applicant tripping over an obstacle at the Monte Carlo Beach Club (see paragraph 17 above). 2. Applicability of Article 8 50. The Court reiterates that the concept of private life extends to aspects relating to personal identity, such as a person ’ s name (see Burghartz v. Switzerland, judgment of 22 February 1994, Series A no. 280-B, p. 28, § 24), or a person ’ s picture (see Schüssel v. Austria (dec.), no. 42409/98, 21 February 2002). Furthermore, private life, in the Court ’ s view, includes a person ’ s physical and psychological integrity; the guarantee afforded by Article 8 of the Convention is primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings ( see, mutatis mutandis, Niemietz v. Germany, judgment of 16 December 1992, Series A no. 251-B, pp. 33 -34, § 29, and Botta v. Italy, judgment of 24 February 1998, Reports of Judgments and Decisions 1998- I, p. 422, § 32). There is therefore a zone of interaction of a person with others, even in a public context, which may fall within the scope of “private life” (see, mutatis mutandis, P.G. and J.H. v. the United Kingdom, no. 44787/98, § 56, ECHR 20 01- IX, and Peck v. the United Kingdom, no. 44647/98, § 57, ECHR 2003- I). 51. The Court has also indicated that, in certain circumstances, a person has a “legitimate expectation” of protection and respect for his or her private life. Accordingly, it has held in a case concerning the interception of telephone calls on business premises that the applicant “would have had a reasonable expectation of privacy for such calls ” (see Halford v. the United Kingdom, judgment of 25 June 1997, Reports 1997- III, p. 1016, § 45). 52. As regards photos, with a view to defining the scope of the protection afforded by Article 8 against arbitrary interference by public authorities, the European Commission of Human Rights had regard to whether the photographs related to private or public matters and whether the material thus obtained was envisaged for a limited use or was likely to be made available to the general public (see, mutatis mutandis, Friedl v. Austria, judgment of 31 January 1995, Series A no. 3 05- B, opinion of the Commission, p. 21, §§ 49-52; P.G. and J.H. v. the United Kingdom, cited above, § 58; and Peck, cited above, § 61). 53. In the present case there is no doubt that the publication by various German magazines of photos of the applicant in her daily life either on her own or with other people falls within the scope of her private life. 3. Compliance with Article 8 (a) The domestic courts ’ position 54. The Court notes that, in its landmark judgment of 15 December 1999, the Federal Constitutional Court interpreted sections 22 and 23 of the Copyright (Arts Domain) Act (see paragraphs 40-41 above) by balancing the requirements of the freedom of the press against those of the protection of private life, that is, the public interest in being informed against the legitimate interests of the applicant. In doing so the Federal Constitutional Court took account of two criteria under German law, one functional and the other spatial. It considered that the applicant, as a figure of contemporary society “ par excellence ”, enjoyed the protection of her private life even outside her home but only if she was in a secluded place out of the public eye to which persons retire “ with the objectively recognisable aim of being alone and where, confident of being alone, they behave in a manner in which they would not behave in public ”. In the light of those criteria, the Federal Constitutional Court held that the Federal Court of Justice ’ s judgment of 19 December 1995 regarding publication of the photos in question was compatible with the Basic Law. The court attached decisive weight to the freedom of the press, even the entertainment press, and to the public interest in knowing how the applicant behaved outside her representative functions (see paragraph 25 above). 55. Referring to its landmark judgment, the Federal Constitutional Court did not entertain the applicant ’ s appeals in the subsequent proceedings brought by her (see paragraphs 32 and 38 above). ( b ) General principles governing the protection of private life and the freedom of expression 56. In the present case the applicant did not complain of an action by the State, but rather of the lack of adequate State protection of her private life and her image. 57. The Court reiterates that, although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves (see, mutatis mutandis, X and Y v. the Netherlands, judgment of 26 March 1985, Series A no. 91, p. 11, § 23; Stjerna v. Finland, judgment of 25 November 1994, Series A no. 299- B, pp. 60-61, § 38; and Verliere v. Switzerland (dec.), no. 41953/98, ECHR 2001 ‑ VII). That also applies to the protection of a person ’ s picture against abuse by others ( see Schüssel, cited above). The boundary between the State ’ s positive and negative obligations under this provision does not lend itself to precise definition. The applicable principles are, nonetheless, similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation ( see, among many other authorities, Keegan v. Ireland, judgment of 26 May 1994, Series A no. 290, p. 19, § 49, and Botta, cited above, p. 427, § 33). 58. That protection of private life has to be balanced against the freedom of expression guaranteed by Article 10 of the Convention. In that context, the Court reiterates that freedom of expression constitutes one of the essential foundations of a democratic society. Subject to paragraph 2 of Article 10, it is applicable not only to “information ” or “ ideas ” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society” (see Handyside v. the United Kingdom, judgment of 7 December 1976, Series A no. 24, p. 23, § 49). In that connection, the press plays an essential role in a democratic society. Although it must not overstep certain bounds, in particular in respect of the reputation and rights of others, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest (see, among many authorities, Observer and Guardian v. the United Kingdom, judgment of 26 November 1991, Series A no. 216, pp. 29-30, § 59, and Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 59, ECHR 1999- III). Journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation (see Prager and Oberschlick v. Austria, judgment of 26 April 1995, Series A no. 313, p. 19, § 38; Tammer v. Estonia, no. 41205/98, §§ 59-63, ECHR 2001- I; and Prisma Presse v. France (dec.), nos. 66910/01 and 71612/01, 1 July 2003). 59. Although freedom of expression also extends to the publication of photos, this is an area in which the protection of the rights and reputation of others takes on particular importance. The present case does not concern the dissemination of “ideas”, but of images containing very personal or even intimate “information” about an individual. Furthermore, photos appearing in the tabloid press are often taken in a climate of continual harassment which induces in the person concerned a very strong sense of intrusion into their private life or even of persecution. 60. In the cases in which the Court has had to balance the protection of private life against freedom of expression, it has always stressed the contribution made by photos or articles in the press to a debate of general interest (see, as a recent authority, Tammer, cited above, §§ 59 et seq.; News Verlags GmbH & Co. KG v. Austria, no. 31457/96, §§ 52 et seq., ECHR 2000-I; and Krone Verlag GmbH & Co. KG v. Austria, no. 34315/96, §§ 33 et seq., 26 February 2002). The Court thus found, in one case, that the use of certain terms in relation to an individual ’ s private life was not “ justified by considerations of public concern ” and that those terms did not “[bear] on a matter of general importance” (see Tammer, cited above, § 68) and went on to hold that there had not been a violation of Article 10. In another case, however, the Court attached particular importance to the fact that the subject in question was a news item of “major public concern” and that the published photographs “did not disclose any details of [the] private life” of the person in question (see Krone Verlag GmbH & Co. KG, cited above, § 37) and held that there had been a violation of Article 10. Similarly, in a recent case concerning the publication by President Mitterrand ’ s former private doctor of a book containing revelations about the President ’ s state of health, the Court held that “the more time that elapsed, the more the public interest in discussion of the history of President Mitterrand ’ s two terms of office prevailed over the requirements of protecting the President ’ s rights with regard to medical confidentiality” (see Editions Plon v. France, no. 58148/00, § 53, ECHR 2004-IV ) and held that there had been a breach of Article 10. ( c ) Application of these general principles by the Court 61. The Court notes at the outset that in the present case the photos of the applicant in the various German magazines show her in scenes from her daily life, thus involving activities of a purely private nature such as engaging in sport, out walking, leaving a restaurant or on holiday. The photos, in which the applicant appears sometimes alone and sometimes in company, illustrate a series of articles with such innocuous titles as “Pure happiness”, “Caroline ... a woman returning to life”, “Out and about with Princess Caroline in Paris ” and “The kiss. Or: they are not hiding anymore ” (see paragraphs 11-17 above). 62. The Court also notes that the applicant, as a member of the Prince of Monaco ’ s family, represents the ruling family at certain cultural or charitable events. However, she does not exercise any function within or on behalf of the State of Monaco or any of its institutions (see paragraph 8 above). 63. The Court considers that a fundamental distinction needs to be made between reporting facts – even controversial ones – capable of contributing to a debate in a democratic society relating to politicians in the exercise of their functions, for example, and reporting details of the private life of an individual who, moreover, as in this case, does not exercise official functions. While in the former case the press exercises its vital role of “ watchdog” in a democracy by contributing to “impart[ing] information and ideas on matters of public interest ( see Observer and Guardian, loc. cit. ), it does not do so in the latter case. 64. Similarly, although the public has a right to be informed, which is an essential right in a democratic society that, in certain special circumstances, can even extend to aspects of the private life of public figures, particularly where politicians are concerned (see Editions Plon, loc. cit .), this is not the case here. The situation here does not come within the sphere of any political or public debate because the published photos and accompanying commentaries relate exclusively to details of the applicant ’ s private life. 65. As in other similar cases it has examined, the Court considers that the publication of the photos and articles in question, the sole purpose of which was to satisfy the curiosity of a particular readership regarding the details of the applicant ’ s private life, cannot be deemed to contribute to any debate of general interest to society despite the applicant being known to the public (see, mutatis mutandis, Campmany y Diez de Revenga and Lopez Galiacho Perona v. Spain (dec.), no. 54 224/00, ECHR 2000-XII; Julio Bou Gibert and El Hogar Y La Moda J.A. v. Spain ( dec.), no. 14929/02, 13 May 2003; and Prisma Presse, cited above). 66. In these conditions freedom of expression calls for a narrower interpretation (see Prisma Presse, cited above, and, by converse implication, Krone Verlag GmbH & Co. KG, cited above, § 37). 67. In that connection, the Court also takes account of the resolution of the Parliamentary Assembly of the Council of Europe on the right to privacy, which stresses the “one-sided interpretation of the right to freedom of expression ” by certain media which attempt to justify an infringement of the rights protected by Article 8 of the Convention by claiming that “ their readers are entitled to know everything about public figures ” (see paragraph 42 above, and Prisma Presse, cited above). 68. The Court finds another point to be of importance: even though, strictly speaking, the present application concerns only the publication of the photos and articles by various German magazines, the context in which these photos were taken – without the applicant ’ s knowledge or consent –and the harassment endured by many public figures in their daily lives cannot be fully disregarded (see paragraph 59 above). In the present case this point is illustrated in particularly striking fashion by the photos taken of the applicant at the Monte Carlo Beach Club tripping over an obstacle and falling down (see paragraph 17 above). It appears that these photos were taken secretly at a distance of several hundred metres, probably from a neighbouring house, whereas journalists ’ and photographers ’ access to the club was strictly regulated (see paragraph 33 above). 69. The Court reiterates the fundamental importance of protecting private life from the point of view of the development of every human being ’ s personality. That protection – as stated above – extends beyond the private family circle and also includes a social dimension. The Court considers that anyone, even if they are known to the general public, must be able to enjoy a “legitimate expectation” of protection of and respect for their private life (see paragraph 51 above and, mutatis mutandis, Halford, cited above, p. 1016, § 45). 70. Furthermore, increased vigilance in protecting private life is necessary to contend with new communication technologies which make it possible to store and reproduce personal data (see point 5 of the Parliamentary Assembly ’ s resolution on the right to privacy, paragraph 42 above, and, mutatis mutandis, Amann v. Switzerland [GC], no. 27798/95, § § 65-67, ECHR 2000- II; Rotaru v. Romania [GC], no. 28341/95, § § 43-44, ECHR 2000- V; P.G. and J.H. v. the United Kingdom, cited above, § § 57 ‑ 60; and Peck, cited above, §§ 59-63 and 78). This also applies to the systematic taking of specific photos and their dissemination to a broad section of the public. 71. Lastly, the Court reiterates that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective (see Artico v. Italy, judgment of 13 May 1980, Series A no. 37, pp. 15-16, § 33). 72. The Court finds it hard to agree with the domestic courts ’ interpretation of section 23(1) of the Copyright (Arts Domain) Act, which consists in describing a person as such as a figure of contemporary society “ par excellence ”. Since that definition affords the person very limited protection of their private life or the right to control the use of their image, it could conceivably be appropriate for politicians exercising official functions. However, it cannot be justified for a “private” individual, such as the applicant, in whom the interest of the general public and the press is based solely on her membership of a reigning family, whereas she herself does not exercise any official functions. In any event the Court considers that, in these conditions, the Act has to be interpreted narrowly to ensure that the State complies with its positive obligation under the Convention to protect private life and the right to control the use of one ’ s image. 73. Lastly, the distinction drawn between figures of contemporary society “ par excellence ” and “relatively ” public figures has to be clear and obvious so that, in a State governed by the rule of law, the individual has precise indications as to the behaviour he or she should adopt. Above all, they need to know exactly when and where they are in a protected sphere or, on the contrary, in a sphere in which they must expect interference from others, especially the tabloid press. 74. The Court therefore considers that the criteria on which the domestic courts based their decisions were not sufficient to protect the applicant ’ s private life effectively. As a figure of contemporary society “ par excellence ” she cannot – in the name of freedom of the press and the public interest – rely on protection of her private life unless she is in a secluded place out of the public eye and, moreover, succeeds in proving it (which can be difficult). Where that is not the case, she has to accept that she might be photographed at almost any time, systematically, and that the photos are then very widely disseminated even if, as was the case here, the photos and accompanying articles relate exclusively to details of her private life. 75. In the Court ’ s view, the criterion of spatial isolation, although apposite in theory, is in reality too vague and difficult for the person concerned to determine in advance. In the present case, merely classifying the applicant as a figure of contemporary society “ par excellence ” does not suffice to justify such an intrusion into her private life. ( d ) Conclusion 76. As the Court has stated above, it considers that the decisive factor in balancing the protection of private life against freedom of expression should lie in the contribution that the published photos and articles make to a debate of general interest. It is clear in the instant case that they made no such contribution, since the applicant exercises no official function and the photos and articles related exclusively to details of her private life. 77. Furthermore, the Court considers that the public does not have a legitimate interest in knowing where the applicant is and how she behaves generally in her private life even if she appears in places that cannot always be described as secluded and despite the fact that she is well known to the public. Even if such a public interest exists, as does a commercial interest of the magazines in publishing these photos and these articles, in the instant case those interests must, in the Court ’ s view, yield to the applicant ’ s right to the effective protection of her private life. 78. Lastly, in the Court ’ s opinion the criteria established by the domestic courts were not sufficient to ensure the effective protection of the applicant ’ s private life and she should, in the circumstances of the case, have had a “legitimate expectation” of protection of her private life. 79. Having regard to all the foregoing factors, and despite the margin of appreciation afforded to the State in this area, the Court considers that the German courts did not strike a fair balance between the competing interests. 80. There has therefore been a breach of Article 8 of the Convention. 81. Having regard to that finding, the Court does not consider it necessary to rule on the applicant ’ s complaint relating to her right to respect for her family life. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 82. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 83. The applicant claimed 50,000 euros (EUR) for non-pecuniary damage on the ground that the German courts ’ decisions prevented her from leading a normal life with her children without being hounded by the media. She also claimed EUR 142,851.31 in reimbursement of her costs and expenses for the many sets of proceedings she had had to bring in the German courts. 84. The Government contested the amounts claimed. As regards non-pecuniary damage, they reiterated that, under German law, the applicant enjoyed protection of her private life even outside her home, particularly where her children were concerned. With regard to costs and expenses, they submitted that not all the proceedings could be taken into account, that the value of parts of the subject matter was less than the amount stated, and that the legal fees being claimed, in view of the amount concerned, could not be reimbursed. 85. The Court considers that the question of the application of Article 41 is not ready for decision. Accordingly, it shall be reserved and the subsequent procedure fixed having regard to any agreement which might be reached between the Government and the applicant. | The European Court of Human Rights held that there had been a violation of Article 8 (right to respect for private life) of the European Convention on Human Rights, finding that the German courts had not, in the present case, struck a fair balance between the interests at stake. It observed in particular that, while the general public might have a right to information, including, in special circumstances, on the private life of public figures, they did not have such a right in this instance. The Court considered that the general public did not have a legitimate interest in knowing the applicant’s whereabouts or how she behaved generally in her private life even if she appeared in places that could not always be described as secluded and was well known to the public. Even if such a public interest existed, just as there existed a commercial interest for the magazines to publish the photographs and articles, those interests had, in the Court’s view, to yield to the applicant’s right to the effective protection of her private life. |
245 | The definition of idem | II. RELEVANT DOMESTIC LAW AND PRACTICE A. The Constitution 31. Article 132 § 1 of the Constitution, on the status of public prosecutors, reads as follows : “Public prosecutors shall carry out their activity in accordance with the principles of legality, impartiality, and hierarchical supervision under the authority of the Minister of Justice. ” B. Government Emergency Ordinance no. 195/2002 32. The relevant provisions of Government Emergency Ordinance no. 195/2002 on road traffic (“Ordinance no. 195/2002”) read as follows: Chapter IGeneral provisionsArticle 1 “1. Road traffic involving vehicles, pedestrians and other categories of [road] users, the rights, obligations and responsibilities of natural and legal persons, and the powers of certain public authorities, institutions and organisations, are governed by the provisions of the present emergency ordinance. 2. The provisions of this emergency ordinance are designed to ensure a safe traffic flow on public roads, and to protect the lives, physical integrity and health of [road] users or anyone in the vicinity of public roads, [and] to protect the legitimate rights and interests of those persons, of public and private property and of the environment. ... 5. The provisions of the present emergency ordinance shall be applicable to all [road] users, and to the authorities vested with powers in the spheres of road traffic and safety and environmental protection.” Chapter VIOffences and penaltiesArticle 84 “A failure to comply with road traffic provisions that entails all the constituent elements of a criminal offence shall give rise to criminal responsibility and be punished in accordance with this emergency ordinance.” Article 87 § 5 “The refusal ... by a driver of a motor vehicle ... to give a biological sample or to submit to a test of exhaled air in order to establish blood alcohol level or the presence of narcotic products or substances or drugs with similar effects, shall be punished by a sentence of between two and seven years ’ imprisonment.” C. The Criminal Code 33. The provisions of the Criminal Code in force at the material time which are relevant to the present case were worded as follows: Article 17 “A criminal offence is an act which poses a danger to society, is committed with culpable intent ( vinovăţie ) and is provided for by criminal law. Only a criminal offence may constitute grounds for criminal liability .” Article 18 “An act posing a danger to society for the purposes of the criminal law shall be understood as any action or inaction which undermines one of the values mentioned in Article 1 and which requires the imposition of a penalty. ” Article 18 1 “1. An act punishable by criminal law shall not constitute a criminal offence if, in view of its minimal interference with one of the values safeguarded by criminal law and the manifestly insignificant nature of its specific content, it does not attain the degree of danger to society associated with a criminal offence. 2. In determining the degree of danger to society, account must be taken of the manner and means by which the act was committed, the aim pursued, the circumstances in which the act was committed, the result which was produced or could have been produced, and the person and conduct of the perpetrator, if known. 3. In the case of such an act, the public prosecutor or the court shall impose one of the administrative penalties provided for in Article 91. ” Article 91 “Where a court has recourse to [another form of liability] instead of criminal liability, it shall order one of the following administrative penalties: ... (c) a fine of between 10 lei and 1,000 lei.” Article 141 “ ‘ Criminal law ’ shall be understood as referring to any criminal provision set forth in laws or decrees.” D. The Code of Criminal Procedure 34. The relevant provisions of the CCP as in force at the material time were as follows: Article 10 “1. Criminal proceedings cannot be instituted or continued if: ... (b 1 ) the act did not attain the degree of danger required to be classified as a criminal offence; ... (g) the offence is statute-barred ...; ... (j) [ a prior decision] has become res judicata ...” Article 11 “Where one of the cases set out in Article 10 is observed: 1. during the criminal proceedings, the public prosecutor, on an application by the prosecuting authority or proprio motu, shall order: ... (b) the discontinuance of the proceedings ( scoaterea de sub urmărire ) in favour of the suspect or accused in the cases set out in Article 10 (a) to (e). ...” Article 22 § 1 “The final decision given by the criminal court shall constitute res judicata before the civil court adjudicating the civil claim, as regards the existence of the facts, the perpetrator and the latter ’ s guilt.” Article 229 The suspect “The suspect is a person who is the subject of a criminal investigation, until such time as a prosecution is brought.” Article 246 “1. A copy of the discontinuance order ... shall be transmitted to the ... suspect or accused ....” Article 249 “1. Criminal proceedings shall be discontinued ( scoaterea de sub urmărirea penală ) where one of the cases listed in Article 10 (a) to (e) is observed and where there is a suspect or accused person in the case. ... 3. In the case mentioned in Article 10 (b 1 ), the public prosecutor shall decide by means of an order.” Article 249 1 “... 3. An order concerning the discontinuance of proceedings on the basis of Article 10 (b 1 ) may be the subject of an appeal ( plîngere ) within twenty days of the date on which the notification provided for in Article 246 has taken place. 4. An order imposing an administrative fine shall be enforced on expiry of the term specified in paragraph 3 above or, where an appeal ( plîngere ) has been lodged and dismissed, after the dismissal of that appeal.” Article 262 “Where the public prosecutor finds that the statutory provisions ensuring the discovery of the truth have been complied with, that the criminal proceedings have been completed and that the necessary evidence has been lawfully examined, he or she shall, as appropriate: ... 2. issue an order by which: (a) the criminal proceedings are closed ( clasează ), discontinued ( scoate de sub urmărire ) or terminated ( încetează ) in accordance with the provisions of Article 11. Where the public prosecutor discontinues the proceedings on the basis of Article 10 (b 1 ), he or she shall apply Article 18 1 § 3 of the Criminal Code; ... ” Article 270 “1. Criminal proceedings shall be resumed in the event that : ... (c) the criminal proceedings have been reopened...” Article 273 “1. The public prosecutor may order the reopening of criminal proceedings if, following [a decision] discontinuing the proceedings ( scoaterea de sub urmărirea penală ), it is established that the grounds on which the previous decision was based did not actually exist or no longer exist. ... 2. Proceedings shall be reopened following an order by the public prosecutor to that effect.” Article 275 “Any person may lodge a complaint in respect of measures and decisions taken during criminal investigation proceedings, if these have harmed his or her legitimate interests ...” Article 278 “Complaints against measures or decisions taken by a prosecutor or implemented at the latter ’ s request shall be examined by ... the chief prosecutor in the relevant department ....” Article 278 1 “1. Following the dismissal by the prosecutor of a complaint lodged in accordance with Articles 275 to 278 in respect of the discontinuation of a criminal investigation ... through a decision not to prosecute ( neurmărire penală ) ..., the injured party, or any other person whose legitimate interests have been harmed, may complain within twenty days following notification of the impugned decision, to the judge of the court that would normally have jurisdiction to deal with the case at first instance ...” Article 415 “1. Judgments of criminal courts ( hotărîrile instanţelor ) shall be enforceable on the date on which they become final. 2. Non-final judgments shall be enforceable [where explicitly provided for by law].” Article 441 1 “... [T]he penalty of a fine shall be imposed as laid down in Articles 442 and 443. ” Article 442 “The judicial body imposing a fine shall ensure that it is enforced. Judicial fines shall be enforced by sending a copy of the relevant section of the operative part of the judgment imposing the fine to the authority responsible by law for enforcing criminal fines. Judicial fines shall be enforced by the authority mentioned in the previous paragraph.” Article 443 “... Where the obligation to pay court fees advanced by the State is imposed by order, it shall be enforced by the public prosecutor, in accordance with ... the provisions of Article 442 § 2.” 35. The Government produced examples of case-law to the effect that only court judgments constitute res judicata, and not decisions taken by the public prosecutor before the case is referred to a court, such as, for instance, an order discontinuing criminal proceedings (judgment no. 346 of 30 January 2015 of the High Court of Cassation and Justice and a decision given on 14 November 2017 by the Bucharest Court of Appeal). IV. RELEVANT INTERNATIONAL-LAW MATERIAL 38. Article 14 § 7 of the United Nations Covenant on Civil and Political Rights is worded as follows: “No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.” 39. The 1969 Vienna Convention on the Law of Treaties provides: Article 31 General rule of interpretation “1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: ( a ) Any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty; ( b ) Any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. 3. There shall be taken into account, together with the context: ( a ) Any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; ( b ) Any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; ( c ) Any relevant rules of international law applicable in the relations between the parties. 4. A special meaning shall be given to a term if it is established that the parties so intended.” Article 32 Supplementary means of interpretation “Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: ( a ) Leaves the meaning ambiguous or obscure; or ( b ) Leads to a result which is manifestly absurd or unreasonable.” Article 33 Interpretation of treaties authenticated in two or more languages “1. When a treaty has been authenticated in two or more languages, the text is equally authoritative in each language, unless the treaty provides or the parties agree that, in case of divergence, a particular text shall prevail. 2. A version of the treaty in a language other than one of those in which the text was authenticated shall be considered an authentic text only if the treaty so provides or the parties so agree. 3. The terms of the treaty are presumed to have the same meaning in each authentic text. 4. Except where a particular text prevails in accordance with paragraph 1, when a comparison of the authentic texts discloses a difference of meaning which the application of articles 31 and 32 does not remove, the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted.” V. EUROPEAN UNION LAW AND CASE-LAW OF THE COURT OF JUSTICE OF THE EUROPEAN UNION 40. Article 50 of the Charter of Fundamental Rights of the European Union as adopted on 12 December 2007 provides: “No one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with the law.” 41. Article 54 of the Convention implementing the Schengen Agreement (CISA) of 14 June 1985 provides as follows: “A person whose trial has been finally disposed of in one Contracting Party may not be prosecuted in another Contracting Party for the same acts provided that, if a penalty has been imposed, it has been enforced, is actually in the process of being enforced or can no longer be enforced under the laws of the sentencing Contracting Party.” 42. The judgment delivered by the Court of Justice of the European Communities on 11 February 2003 in Hüseyin Gözütok and Klaus Brügge (joined cases C-187/01 and C-385/01, EU:C:2003:87, § 31) states that “(t)he fact that no court is involved in such a procedure and that the decision in which the procedure culminates does not take the form of a judicial decision does not cast doubt on that interpretation”, that is to say does not prevent the application of the ne bis in idem principle. 43. In its judgment in Piotr Kossowski v. Generalstaatsanwaltschaft Hamburg of 29 June 2016, the Court of Justice of the European Union (CJEU; (Grand Chamber), ECLI:EU:C:2016:483) explained the concept of a person whose trial has been “finally disposed of” as follows: “34. For a person to be regarded as someone whose trial has been ‘ finally disposed of ’ within the meaning of Article 54 of the CISA, in relation to the acts which he is alleged to have committed, it is necessary, in the first place, that further prosecution has been definitively barred (see, to that effect, judgment of 5 June 2014 in M, C ‑ 398/12, EU:C:2014:1057, paragraph 31 and the case-law cited). 35. That first condition must be assessed on the basis of the law of the Contracting State in which the criminal-law decision in question has been taken. A decision which does not, under the law of the Contracting State which instituted criminal proceedings against a person, definitively bar further prosecution at national level cannot, in principle, constitute a procedural obstacle to the opening or continuation of criminal proceedings in respect of the same acts against that person in another Contracting State (see, to that effect, judgments of 22 December 2008 in Turanský, C ‑ 491/07, EU:C:2008:768, paragraph 36, and 5 June 2014 in M, C ‑ 398/12, EU:C:2014:1057, paragraphs 32 and 36). 36. The order for reference indicates that, in the case in the main proceedings, under Polish law the decision of the Kołobrzeg District Public Prosecutor ’ s Office terminating the criminal proceedings precludes any further prosecution in Poland. ... 38. As regards the fact that ( i ) the decision at issue in the main proceedings was taken by the Kołobrzeg District Public Prosecutor ’ s Office in its capacity as a prosecuting authority and (ii) no penalty was enforced, neither of those factors is decisive for the purpose of ascertaining whether that decision definitively bars prosecution. 39. Article 54 of the CISA is also applicable where an authority responsible for administering criminal justice in the national legal system concerned, such as the Kołobrzeg District Public Prosecutor ’ s Office, issues decisions definitively discontinuing criminal proceedings in a Member State, although such decisions are adopted without the involvement of a court and do not take the form of a judicial decision (see, to that effect, judgment of 11 February 2003 in Gözütok and Brügge, C ‑ 187/01 and C ‑ 385/01, EU:C:2003:87, paragraphs 28 and 38). 40. As regards the absence of a penalty, the Court observes that it is only where a penalty has been imposed that Article 54 of the CISA lays down the condition that the penalty has been enforced, is actually in the process of being enforced or can no longer be enforced under the laws of the Contracting State of origin. 41. The reference to a penalty cannot therefore be interpreted in such a way that the application of Article 54 of the CISA is – other than in a case in which a penalty has been imposed – subject to an additional condition. 42. In order to determine whether a decision such as that at issue in the main proceedings constitutes a decision finally disposing of the case against a person for the purposes of Article 54 of the CISA, it is necessary, in the second place, to be satisfied that that decision was given after a determination had been made as to the merits of the case (see, to that effect, judgments of 10 March 2005 in Miraglia, C ‑ 469/03, EU:C:2005:156, paragraph 30, and 5 June 2014 in M, C ‑ 398/12, EU:C:2014:1057, paragraph 28). 43. It is necessary, for that purpose, to take into account both the objective of the rules of which Article 54 of the CISA forms part and the context in which it occurs (see, to that effect, judgment of 16 October 2014 in Welmory, C ‑ 605/12, EU:C:2014:2298, paragraph 41 and the case-law cited). ... 47. Therefore, the interpretation of the final nature, for the purposes of Article 54 of the CISA, of a decision in criminal proceedings in a Member State must be undertaken in the light not only of the need to ensure the free movement of persons but also of the need to promote the prevention and combating of crime within the area of freedom, security and justice. 48. In view of the foregoing considerations, a decision terminating criminal proceedings, such as the decision in issue before the referring court – which was adopted in a situation in which the prosecuting authority, without a more detailed investigation having been undertaken for the purpose of gathering and examining evidence, did not proceed with the prosecution solely because the accused had refused to give a statement and the victim and a hearsay witness were living in Germany, so that it had not been possible to interview them in the course of the investigation and had therefore not been possible to verify statements made by the victim – does not constitute a decision given after a determination has been made as to the merits of the case. ...” THE LAW I. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL No. 7 TO THE CONVENTION 44. The applicant complained that he had been tried and convicted twice in criminal proceedings for the same offence, in breach of Article 4 § 1 of Protocol No. 7. He also submitted that the reopening of the proceedings against him had not been in conformity with the criteria set out in Article 4 § 2. Article 4 of Protocol No. 7 to the Convention provides : “1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State. 2. The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case. 3. No derogation from this Article shall be made under Article 15 of the Convention.” 45. The Government contested that argument. A. Admissibility 46. In the Court ’ s view, the application raises complex issues of fact and Convention law, such that it cannot be rejected on the ground of being manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds, and must therefore be declared admissible. B. Merits 47. The Court reiterates that the guarantee enshrined in Article 4 of Protocol No. 7 occupies a prominent place in the Convention system of protection, as is underlined by the fact that no derogation from it is permissible under Article 15 of the Convention in time of war or other public emergency. 48. The protection against duplication of criminal proceedings is one of the specific safeguards associated with the general guarantee of a fair hearing in criminal proceedings. Article 4 of Protocol No. 7 to the Convention enshrines a fundamental right guaranteeing that no one is to be tried or punished in criminal proceedings for an offence of which he or she has already been finally convicted or acquitted (see Marguš v. Croatia [GC], no. 4455/10, § 114, ECHR 2014 (extracts); Sergey Zolotukhin v. Russia [GC], no. 14939/03, § 58, ECHR 2009; Nikitin v. Russia, no. 50178/99, § 35, ECHR 2004-VIII; and Kadušić v. Switzerland, no. 43977/13, § 82, 9 January 2018). The repetitive aspect of trial or punishment is central to the legal problem addressed by Article 4 of Protocol No. 7 (see Nikitin, cited above, § 35). 49. The Court observes that the wording of the first paragraph of Article 4 of Protocol No. 7 sets out the three components of the ne bis in idem principle: the two sets of proceedings must be “criminal” in nature (1); they must concern the same facts (2); and there must be duplication of the proceedings (3). It will assess each of those components in turn. 1. Whether the proceedings giving rise to the order of 7 August 2008 were criminal in nature 50. It should be pointed out that by order of 7 August 2008 the public prosecutor ’ s office discontinued the criminal proceedings brought against the applicant for having refused to give a biological sample to establish his blood alcohol level, finding that the acts committed did not constitute an offence under criminal law. However, in the same order, the prosecutor ’ s office imposed on the applicant a penalty designated as “administrative” in the Criminal Code. Thus, in order to determine whether the applicant was “finally acquitted or convicted in accordance with the law and penal procedure of [the] State”, the first issue to be decided is whether those proceedings concerned a “criminal” matter within the meaning of Article 4 of Protocol No. 7. (a) The parties ’ submissions ( i ) The Government 51. The Government pointed out that Article 87 § 5 of Ordinance no. 194/2002 came under Romanian criminal law in view of the aim pursued by that provision, the classification of the acts as a criminal offence and the penalty imposed. They submitted that the imposition of an administrative penalty on the applicant had not altered the nature of the proceedings, which had remained criminal in nature, only “borrowing” the penalty from the administrative sphere. (ii) The applicant 52. The applicant submitted that the fine imposed by the order of the public prosecutor ’ s office of 7 August 2008 had been “criminal” within the meaning of Article 4 of Protocol No. 7. (b) The Court ’ s assessment 53. The Court reiterates that the legal characterisation of the procedure under national law cannot be the sole criterion of relevance for the applicability of the ne bis in idem principle under Article 4 § 1 of Protocol No. 7. 54. The Court reiterates that the concept of a “criminal charge” within the meaning of Article 6 § 1 is an autonomous one. Its established case-law sets out three criteria, commonly known as the “ Engel criteria”, to be considered in determining whether or not there was a “criminal charge” ( see Engel and Others v. the Netherlands, 8 June 1976, § 82, Series A no. 22; A and B v. Norway [GC], nos. 24130/11 and 29758/11, § 107, 15 November 2016; and Ramos Nunes de Carvalho e Sá v. Portugal [GC], nos. 55391/13 and 2 others, § 122, 6 November 2018). The first criterion is the legal classification of the offence under national law, the second is the very nature of the offence, and the third is the degree of severity of the penalty that the person concerned risks incurring. The second and third criteria are alternative and not necessarily cumulative. This does not preclude a cumulative approach where separate analysis of each criterion does not make it possible to reach a clear conclusion as to the existence of a criminal charge (see Sergey Zolotukhin, cited above, § 53, and A and B v. Norway, cited above, § 105; see also Escoubet v. Belgium [GC], no. 26780/95, § 32, ECHR 1999 ‑ VII). 55. The Court will examine below whether, in accordance with the aforementioned Engel criteria, the imposition of an administrative fine on the applicant for the offence of which he was accused is covered by the concept of “penal procedure”. ( i ) Legal characterisation of the offence under national law 56. The Court notes that the offence for which the applicant was prosecuted, that is, his refusal to give a biological sample to establish his blood alcohol level, was punishable under Article 87 § 5 of Ordinance no. 195/2002, as set out in the section on “offences and penalties”, and that they could give rise to a prison sentence. Both parties accepted that these legal provisions formed part of Romanian criminal law. 57. The Court further notes the application in the present case of Article 18 1 of the Criminal Code, providing that an act falling under the criminal law did not constitute a criminal offence if it did not attain the requisite level of seriousness, on account of the minimal interference with one of the values safeguarded by criminal law, and its specific content (see paragraph 33 above). In such circumstances, the public prosecutor could decide to discontinue the prosecution and, instead of imposing the criminal penalty provided for in the definition of the offence of which the person had been accused, impose another penalty that was likewise provided for in the Criminal Code but was designated therein as “administrative”. 58. In the instant case, by order of 7 August 2008, the public prosecutor ’ s office discontinued the proceedings against the applicant, noting that although his acts fell under the criminal law, they did not amount to a criminal offence, and it imposed an administrative penalty on him. Be that as it may, the characterisation under domestic law is merely a starting-point, and the indications so afforded have only a formal and relative value (see, among many other authorities, Engel and Others, cited above, § 82, and Sergey Zolotukhin, cited above, § 53). The Court will therefore undertake a more detailed analysis of the actual nature of the domestic provision forming the legal basis of the penalty imposed on the applicant and its severity. (ii) Actual nature of the applicable legal provision 59. By its very nature, the inclusion in Ordinance no. 195/2002 of the offence of refusing to give a biological sample for determining blood alcohol level pursued aims, as specified in Article 1 § 2 of the Ordinance, such as protecting the life, physical integrity, health and legitimate rights and interests of road users, and protecting public and private property and the environment – values falling within the sphere of protection of the criminal law. The provisions of the Ordinance were applicable, in accordance with Article 1 § 5, to all road users rather than to a group possessing a special status. The penalty laid down for commission of the offence defined in Article 87 § 5 of Ordinance no. 195/2002 was severe – between two and seven years ’ imprisonment – and was aimed at punishing and deterring behaviours liable to undermine the social values safeguarded by law (see paragraph 32 above). 60. The Court also considers it important to note that although the acts of which the applicant was accused were not deemed to constitute a criminal offence in the order of 7 August 2008, they nevertheless fell within the scope of a provision of criminal law. The fact that the criminal acts of which the applicant was accused were initially regarded as manifestly insignificant on account of their minimal interference with one of the values safeguarded by criminal law and their specific content does not in itself preclude their classification as “criminal” within the autonomous Convention meaning of the term, as there is nothing in the Convention to suggest that the criminal nature of an offence, within the meaning of the “ Engel criteria”, necessarily requires a certain degree of seriousness (see Ezeh and Connors v. the United Kingdom [GC], nos. 39665/98 and 40086/98, § 104, ECHR 2003-X). Moreover, in the second set of proceedings, the same acts were found to constitute a criminal offence. The Court accepts that the legal provision on the basis of which the prosecutor ’ s office prosecuted and punished the applicant by means of the order of 7 August 2008 was criminal in nature. (iii) Degree of severity of the penalty 61. As to the degree of severity of the penalty, it is determined by reference to the maximum penalty for which the relevant law provides. The actual penalty imposed is relevant to the determination but it cannot diminish the importance of what was initially at stake (see Sergey Zolotukhin, cited above, § 56; Grecu v. Romania, no. 75101/01, § 54, 30 November 2006; and Tomasović v. Croatia, no. 53785/09, § 23, 18 October 2011). 62. In the present case, Article 87 § 5 of Ordinance no. 195/2002 provided that acts constituting the offence of refusing to give a biological sample for determining blood alcohol level were punishable by a sentence of two to seven years ’ imprisonment. Even though the public prosecutor ’ s office did not consider that the acts in issue constituted an offence for the purposes of criminal law, it was required by law to impose a penalty where the legal basis for discontinuing the proceedings was Article 18 1 of the Criminal Code (see paragraph 33 above). The applicant was fined 1,000 Romanian lei (RON – approximately 250 euros (EUR) at the time) for the acts of which he was accused. That sum corresponded to the maximum fine that could be imposed under Article 91 of the Criminal Code. Although the Criminal Code designates this penalty as “administrative”, the purpose of the fine was not to repair the damage caused by the applicant but to punish him and deter him from committing further criminal acts (compare Ioan Pop v. Romania ( dec. ), no. 40301/04, § 25, 28 June 2011, where the Court found that an administrative fine of approximately EUR 50 imposed on the applicant under Ordinance no. 195/2002 for failing to stop and give way to an official vehicle was “criminal” for the purposes of Article 6 of the Convention; and Sancaklı v. Turkey, no. 1385/07, § 30, 15 May 2018, where the Court found that a fine classified as administrative in Turkish law, amounting to approximately EUR 62, was “criminal” for the purposes of Article 6). Accordingly, although domestic law classifies the fine imposed on the applicant as “administrative”, it has a punitive and deterrent purpose and is therefore akin to a criminal penalty. (iv) Conclusion concerning the nature of the proceedings leading to the order of 7 August 2008 63. Having regard to the foregoing, the Court concludes that the nature of the offence for which the applicant was prosecuted and the penalty imposed on him link the proceedings leading to the order of 7 August 2008 to the concept of “penal procedure” for the purposes of Article 4 of Protocol No. 7. 64. Moreover, it is beyond doubt that the applicant ’ s suspended sentence of one year ’ s imprisonment, imposed by the Galați Court of Appeal ’ s judgment of 14 June 2010, was a criminal penalty (see paragraph 25 above). Since the proceedings described by the applicant were criminal in nature, the first criterion for the applicability of Article 4 of Protocol No. 7 is fulfilled. 2. Whether the applicant was prosecuted twice for the same offence ( idem ) (a) The parties ’ submissions ( i ) The Government 65. The Government did not deny that the offence of which the applicant had been convicted by the Focșani District Court in its judgment of 18 November 2009 entailed the same facts on the basis of which he had been fined in the order of 7 August 2008. (ii) The applicant 66. The applicant submitted that the offence of which he had been convicted by the Focşani District Court in its judgment of 18 November 2009 entailed the same facts on the basis of which he had been fined by the public prosecutor ’ s office in its order of 7 August 2008. (b) The Court ’ s assessment 67. In Sergey Zolotukhin (cited above, § 82) the Court found that Article 4 of Protocol No. 7 had to be understood as prohibiting prosecution or trial for a second “offence” in so far as it arose from identical facts or facts which were substantially the same. This factual approach has been explicitly reiterated by the Court in subsequent cases (see, for example, Marguš, cited above, § 114; A and B v. Norway, cited above, § 108; and Ramda v. France, no. 78477/11, § 81, 19 December 2017). 68. In the present case, the Court notes that, on the basis of the order of 7 August 2008 and the final judgment delivered by the Galați Court of Appeal on 14 June 2010, the applicant was found guilty of having refused to undergo a blood alcohol test during the night of 2 to 3 May 2008, following a preventive control carried out by the traffic police, and was penalised for that offence. That being so, in so far as the two above-mentioned decisions concerned the same facts and the same accusations, the applicant was indeed tried and punished twice for the same offence. 3. Whether there was a duplication of proceedings ( bis ) (a) The parties ’ submissions ( i ) The Government 69. The Government submitted that the present case concerned a “single” set of proceedings which had been finally determined by the judgment delivered by the Galați Court of Appeal on 14 June 2010, and not two separate sets of proceedings combining to form a coherent whole. 70. In the Government ’ s submission, the prosecutor ’ s order of 7 August 2008 had amounted to a discontinuance of the proceedings and had not been final. Although the order could have been challenged within twenty days of the date on which the applicant had been notified of it, that fact was insufficient to establish whether the order in question had become final. Referring to the decisions given by the Court in the cases of Horciag v. Romania (( dec. ), no. 70982/01, 15 March 2005), and Sundqvist v. Finland (( dec. ), no. 75602/01, 22 November 2005), the Government contended that regard should also be had to the option available under domestic law whereby the higher-ranking prosecutor could order the reopening of the criminal proceedings, an option they regarded as an ordinary remedy within the meaning of the Court ’ s relevant case-law. 71. On that subject, the Government submitted first of all that, according to information from certain domestic courts, decisions to discontinue or terminate criminal proceedings were very seldom set aside by either prosecutors or judges. They emphasised that the number of cases in which the prosecutor set aside a decision proprio motu was comparable to the number in which the judge did so acting on a complaint by the interested party against the prosecutor ’ s decision. The similar frequency of the use of both these options indicated that the possibility for the higher-ranking prosecutor to reopen proceedings had to be recognised as having the same legal status as an appeal lodged by the injured party against the prosecutor ’ s decision, namely that of an ordinary remedy. Referring to statistics provided by various domestic public prosecutors ’ offices, the Government explained that the proportion of cases where decisions to discontinue or terminate criminal proceedings were set aside by the public prosecutor or judge was very low, approximately 1%. In the case of intervention by the public prosecutor leading to this outcome, the percentage was even lower, less than 0.5%. 72. In the Government ’ s submission, the limited number of cases where the public prosecutor intervened proprio motu could be explained, firstly, by the need to avoid undermining public trust in the quality of the work performed by public prosecutors and, secondly, by the requirement to strike a balance between the aim pursued by setting aside the initial decision and the stability of the legal situations created as a result of the decision. In the instant case the higher-ranking prosecutor had intervened promptly, about five months after the order of 7 August 2008. 73. Relying on the Court ’ s case-law (citing Smirnova and Smirnova v. Russia ( dec. ), nos. 46133/99 and 48183/99, 3 October 2002, and Harutyunyan v. Armenia ( dec. ), no. 34334/04, 7 December 2006), the Government submitted that only decisions determining the merits of a case could constitute res judicata, and that the discontinuance of criminal proceedings by a public prosecutor did not amount to either a conviction or an acquittal. Under domestic law, only court decisions, and not prosecutors ’ orders, were deemed to constitute res judicata (see paragraphs 34 and 35 above). 74. The Government also explained that the enforcement – whether voluntary or not – of a penalty imposed by a prosecutor ’ s order had no bearing on the nature of that order: domestic law did not prescribe that the enforcement of such a penalty precluded the reopening of criminal proceedings. By setting aside an order of that kind, the higher-ranking prosecutor also set aside the penalty. 75. The Government submitted that even from the perspective of the case-law of the CJEU, the order of 7 August 2008 did not constitute a “final” decision. Referring to judgments delivered by the CJEU (for example, those delivered on 29 June 2016 and 22 December 2008 respectively in the cases of Kossowski v. Generalstaatwaltschaft Hamburg (C-486/14, EU:C:2016:483), and Vladimir Turanský (C-491/07, EU:C:2008:768)), they explained that for a person to be regarded as someone whose trial had been “finally disposed of”, it was necessary, in the first place, that further prosecution had been “definitively barred”, a question which had to be assessed on the basis of the law of the Contracting State in which the criminal-law decision in issue had been taken. Next, referring to the judgments delivered by the CJEU in Filomeno Mario Miraglia (10 March 2005, C-469/03, EU:C:2005:156); M. (5 June 2014, C-398/12, EU:C:2014:1057); and Kossowski (cited above), the Government noted that the CJEU had ruled that even where, under domestic law, further prosecution had been definitively barred by a decision, that decision only qualified as “final” if it was given after a determination had been made as to the merits of the case. In the present case, the possibility for the public prosecutor ’ s office to issue an order under Article 10 (b 1 ) of the CCP without determining all the aspects of the criminal proceedings (see paragraph 33 above) argued in favour of regarding the prosecutor ’ s order of 7 August 2008 as “not final”. Furthermore, Article 273 § 1 of the CCP had not restricted the reopening of proceedings to exceptional circumstances or made it subject to the discovery of new evidence: reopening could be ordered wherever the higher-ranking prosecutor found that the proceedings had been discontinued on non-existent factual or legal grounds. 76. Finally, the Government submitted that even supposing that the public prosecutor ’ s office ’ s order of 7 August 2008 constituted a final decision, the order given by the higher-ranking prosecutor ’ s office on 7 January 2009 had led not to the resumption of the prosecution, but to the reopening of the case for the purposes of Article 4 § 2 of Protocol No. 7. The reopening had been justified by a fundamental defect in the order previously issued. With reference to the Prosecutor General ’ s memorandum of 17 January 2013 (see paragraph 27 above), they explained that the higher-ranking prosecutor ’ s oversight of decisions taken by public prosecutors under his or her authority pursued the aim, inter alia, of standardising the practice of public prosecutors ’ offices, particularly as regards the assessment of the degree of danger to society posed by a road traffic offence. Even though the memorandum in question had been issued after the facts of the present case, it proved that the standardisation of judicial practice had been a constant concern of the judicial authorities. Furthermore, for offences of this kind there was generally no other party with an interest in challenging the prosecutor ’ s decision to discontinue the proceedings. Had the higher-ranking prosecutor not intervened, a decision based on an erroneous assessment could not have been amended. (ii) The applicant 77. The applicant submitted that the order of 7 August 2008 by the public prosecutor ’ s office had amounted to a final decision for the purposes of Article 4 of Protocol No. 7. He first of all observed that in his case, unlike in A and B v. Norway (cited above), there had not been two complementary sets of proceedings pursuing different social purposes. In support of that contention he pointed out that in both sets of proceedings he had been prosecuted for the same offence punishable under the same legislation, and that the evidence produced had been the same. The second set of proceedings had unforeseeably overturned the first set after a considerable period of time, thus demonstrating that there had not been two complementary sets of proceedings. 78. The applicant further submitted that the prosecutor ’ s order of 7 August 2008 had become final in so far as it had not been challenged within the time-limit set out in Articles 249 1, 278 and 278 1 of the CCP for lodging an appeal, and the fine had consequently been paid. Under domestic law, both the courts and the public prosecutors ’ offices had had jurisdiction to apply Articles 18 1 and 91 of the Criminal Code as in force at the material time. In order to apply those provisions, and above all to impose one of the penalties laid down in Article 91 of the Criminal Code, the authority with jurisdiction had been required to carry out a thorough investigation of the facts of the case and to assess the behaviour of the person concerned. Referring to the judgment delivered by the CJEU in Kossowski v. Generalstaatwaltschaft Hamburg (cited above), the applicant stated that in the present case, in issuing the order of 7 August 2008, the public prosecutor ’ s office had conducted an in-depth investigation: it had interviewed the suspect and a witness and had made its own assessment of the circumstances surrounding the commission of the acts, before deciding on the most appropriate penalty to be imposed in this case. The detailed nature of the investigation meant that the order of 7 August 2008 should be characterised as “final”. 79. The applicant added that pursuant to Article 249 1 of the CCP, the fine imposed had been enforceable on expiry of the twenty-day time-limit within which he could, under the CCP, have challenged the order in question. The enforceability – as required by law – of the order on expiry of the time-limit for appeal had rendered the order final, such that after its enforcement the proceedings could no longer have been reopened by the public prosecutor ’ s office on the basis of Article 273 of the CCP. 80. Finally, in the applicant ’ s submission, the fact that Article 273 of the CCP as in force at the material time had allowed the higher-ranking public prosecutor ’ s office to reopen criminal proceedings had not constituted an extraordinary remedy for the purposes of the case-law of the Court, but rather a reopening of the case, to be assessed under Article 4 § 2 of Protocol No. 7. The higher-ranking prosecutor ’ s decision of 7 January 2009 had been contrary both to domestic law and to Article 4 § 2 of Protocol No. 7. The applicant argued, in that connection, that the reopening had been based on a different assessment of the circumstances surrounding the commission of the offence and of the appropriateness of the penalty imposed, and not on the finding that the grounds forming the basis of the previous decision had never actually existed or no longer existed – as required by Article 273 of the CCP as in force at the material time – or on the emergence of new facts or a fundamental defect in the previous proceedings, as required by Article 4 § 2 of Protocol No. 7. (b) The Court ’ s assessment 81. The Court reiterates that the aim of Article 4 of Protocol No. 7 is to prohibit the repetition of criminal proceedings that have been concluded by a final decision (see Sergey Zolotukhin, cited above, § 107, with further references). ( i ) Preliminary observations on whether the two sets of proceedings were complementary 82. The Court considers it useful first of all to consider whether the facts of the present case point to “dual” sets of proceedings with a sufficiently close connection, given that the issue as to whether a decision is “final” or not is devoid of relevance when there is no real duplication of proceedings but rather a combination of proceedings considered to constitute an integrated whole (see A and B v. Norway, cited above, § 142). 83. It observes that in the case of A and B v. Norway (cited above, §§ 126 and 130-34) it reiterated and developed the principle of a “sufficiently close connection in substance and in time” between proceedings: where this connection allows the two sets of proceedings to be treated as forming part of an integrated scheme of sanctions under the domestic law in question, there is no duplication of proceedings but rather a combination of proceedings compatible with Article 4 of Protocol No. 7. 84. In the present case, the applicant was prosecuted in “both” sets of proceedings for a single offence punishable by a single legal provision, namely Article 87 § 5 of Ordinance no. 195/2002. The proceedings and the two penalties imposed on the applicant pursued the same general purpose of deterring conduct posing a risk to road safety. The “first” set of proceedings as a whole and the initial part of the “second” set of proceedings were conducted by the same authority, that is to say the public prosecutor ’ s office at the Focşani District Court, and in “both” sets of proceedings the same evidence was produced. In the present case the two penalties imposed on the applicant were not combined: either of the two penalties should have been imposed depending on whether the investigating authorities characterised the facts as constituting a criminal offence. The “two” sets of proceedings took place one after the other and were not conducted simultaneously at any time. 85. Having regard to those factors, the Court agrees with the parties and finds that the two sets of proceedings were not combined in an integrated manner such as to form a coherent whole, connecting dual proceedings “sufficiently closely in substance and in time” to be compatible with the “ bis ” criterion under Article 4 of Protocol No. 7 (compare A and B v. Norway, cited above, §§ 112-34, and Jóhannesson and Others v. Iceland, no. 22007/11, §§ 48-49, 18 May 2017). 86. In order to determine further whether, in the instant case, there was duplication of proceedings (“ bis ”) for the purposes of Article 4 of Protocol No. 7, the Court will examine whether the prosecutor ’ s order of 7 August 2008 constituted a “final” decision “acquitting or convicting” the applicant. In the affirmative, the Court must establish whether the decision given by the higher-ranking prosecutor on 7 January 2009 was covered by the exception set out in Article 4 § 2 of Protocol No. 7 and therefore amounted to a reopening of the case compatible with Article 4 of Protocol No. 7. (ii) Whether the order of 7 August 2008 constituted a final acquittal or conviction 87. The Court notes that the parties disagreed on this point: the Government submitted that the order of 7 August 2008 had merely entailed the discontinuance of the proceedings by the public prosecutor ’ s office, whereas the applicant contended that it had entailed his conviction. Likewise, the applicant argued that the order of 7 August 2008 was a final decision, but the Government disputed this. 88. The Court notes that Article 4 of Protocol No. 7 states that the ne bis in idem principle is intended to protect persons who have already been “finally acquitted or convicted”. The explanatory report on Protocol No. 7 states, as regards Article 4, that “[t]he principle established in this provision applies only after the person has been finally acquitted or convicted in accordance with the law and penal procedure of the State concerned” (see paragraph 29 of the explanatory report, cited in paragraph 37 above). For a person to qualify for protection under this Article, a final decision is therefore not sufficient; the final decision must also involve the person ’ s acquittal or conviction. 89. In the present case, the Court must first of all determine whether the order of 7 August 2008 did indeed constitute an acquittal or conviction. If so, it must ascertain whether the order was a “final” decision for the purposes of Article 4 of Protocol No. 7. In order to answer those questions, it must conduct a broader analysis of Article 4 of Protocol No. 7 in the light of its relevant case-law. 90. To that end, it reiterates that as an international treaty, the Convention must be interpreted in the light of the rules of interpretation provided for in Articles 31 to 33 of the Vienna Convention of 23 May 1969 on the Law of Treaties (see Golder v. the United Kingdom, 21 February 1975, § 29, Series A no. 18, and Magyar Helsinki Bizottság v. Hungary [GC], no. 18030/11, § 118, 8 November 2016). Thus, in accordance with the Vienna Convention, the Court is required to ascertain the ordinary meaning to be given to the words in their context and in the light of the object and purpose of the provision from which they are drawn (see Johnston and Others v. Ireland, 18 December 1986, § 51, Series A no. 112, and Article 31 § 1 of the Vienna Convention, cited in paragraph 39 above ). 91. Furthermore, in order to interpret the provisions of the Convention and the Protocols thereto in the light of their object and purpose, the Court has developed additional means of interpretation through its case-law, namely the principles of autonomous interpretation and evolutive interpretation, and that of the margin of appreciation. These principles require the provisions of the Convention and the Protocols thereto to be interpreted and applied in a manner which renders their safeguards practical and effective, not theoretical and illusory (see Soering v. the United Kingdom, 7 July 1989, § 87, Series A no. 161). 92. Regard must also be had to the fact that the context of the provision in question is a treaty for the effective protection of individual human rights and that the Convention must be read as a whole, and interpreted in such a way as to promote internal consistency and harmony between its various provisions (see Stec and Others v. the United Kingdom ( dec. ) [GC], nos. 65731/01 and 65900/01, §§ 47-48, ECHR 2005 ‑ X, and Magyar Helsinki Bizottság, cited above, § 120). ( α) Concerning the scope of the concepts of “acquittal” and “conviction” 93. Before detailing the content of those concepts, the Court deems it useful to consider whether judicial intervention in the proceedings is necessary for a decision to be regarded as an “acquittal” or a “conviction”. – Whether judicial intervention is necessary 94. From a study of the two authentic versions – English and French – of Article 4 of Protocol No. 7, the Court notes a difference in the wording of the two texts: the French version of Article 4 of Protocol No. 7 provides that the person concerned must have been “ acquitté ou condamné par un jugement ”, whereas the English version of the same provision states that the person must have been “finally acquitted or convicted”. The French version thus indicates that the acquittal or conviction must stem from a “ jugement ”, whereas the English version does not specify what form the acquittal or conviction should take. Thus confronted with versions of a law-making treaty which are equally authentic but not exactly the same, the Court must interpret them in a way that reconciles them as far as possible and is most appropriate in order to realise the aim and achieve the object of the treaty (see The Sunday Times v. the United Kingdom (no. 1), 26 April 1979, § 48, Series A no. 30, and Article 33 § 4 of the Vienna Convention on the Law of Treaties). 95. In view of the crucial role played by Article 4 of Protocol No. 7 in the Convention system and the aim of the right which it secures, the use of the word “ jugement ” in the French version of this Article cannot justify a restrictive approach to the concept of a person who has been “acquitted or convicted”. What matters in any given case is that the decision in question has been given by an authority participating in the administration of justice in the national legal system concerned, and that that authority is competent under domestic law to establish and, as appropriate, punish the unlawful behaviour of which the person has been accused. The fact that the decision does not take the form of a judgment cannot call into question the person ’ s acquittal or conviction, since such a procedural and formal aspect cannot have a bearing on the effects of the decision. Indeed, the English version of Article 4 of Protocol No. 7 supports this broad interpretation of the concept. Moreover, the Court has consistently adopted a similar approach in determining the effects of a legal situation, for example in ascertaining whether proceedings defined as administrative under domestic law produced effects requiring them to be classified as “criminal” within the autonomous Convention meaning of the term (see, among many other authorities, A and B v. Norway, cited above, §§ 139 and 148, and Sergey Zolotukhin, cited above, §§ 54-57; see also Tsonyo Tsonev v. Bulgaria (no. 2), no. 2376/03, § 54, 14 January 2010, where the Court proceeded from the finding that the mayor ’ s decision to impose an administrative fine on the applicant, which had not been challenged in the courts and was enforceable, had constituted a final decision for the purposes of Article 4 of Protocol No. 7). Accordingly, the Court considers that judicial intervention is unnecessary for the existence of a decision. – The content of the concepts of “acquittal” and “conviction” 96. To date, the Court has never defined in its case-law the scope of the expression “acquitted or convicted” or set out any general criteria in that regard. Nonetheless, it has held on many occasions that the discontinuance of criminal proceedings by a public prosecutor does not amount to either a conviction or an acquittal, and that Article 4 of Protocol No. 7 is therefore not applicable in such a situation (see, to that effect, Marguš, cited above, § 120, and Smirnova and Smirnova and Harutyunyan, both cited above). In Horciag (cited above) the Court stated that “a decision confirming provisional psychiatric detention cannot be treated as an acquittal for the purposes of Article 4 of Protocol No. 7, but concerns a preventive measure not entailing any examination or finding as to the applicant ’ s guilt (see, mutatis mutandis, Escoubet v. Belgium (cited above), and Mulot v. France ( dec. ), no. 37211/97, 14 December 1999)”. 97. In order to determine whether a particular decision constitutes an “acquittal” or a “conviction”, the Court has therefore considered the actual content of the decision in issue and assessed its effects on the applicant ’ s situation. Referring to the text of Article 4 of Protocol No. 7, it considers that the deliberate choice of the words “acquitted or convicted” implies that the accused ’ s “criminal” responsibility has been established following an assessment of the circumstances of the case, in other words that there has been a determination as to the merits of the case. In order for such an assessment to take place, it is vital that the authority giving the decision is vested by domestic law with decision-making power enabling it to examine the merits of a case. The authority must then study or evaluate the evidence in the case file and assess the applicant ’ s involvement in one or all of the events prompting the intervention of the investigative bodies, for the purposes of determining whether “criminal” responsibility has been established (see, mutatis mutandis, Allen v. the United Kingdom [GC], no. 25424/09, § 127, ECHR 2013, a case concerning the scope of the presumption of innocence under Article 6 § 2 of the Convention, in which the content, and not the form, of the decision, was the decisive factor for the Court). 98. Thus, the finding that there has been an assessment of the circumstances of the case and of the accused ’ s guilt or innocence may be supported by the progress of the proceedings in a given case. Where a criminal investigation has been initiated after an accusation has been brought against the person in question, the victim has been interviewed, the evidence has been gathered and examined by the competent authority, and a reasoned decision has been given on the basis of that evidence, such factors are likely to lead to a finding that there has been a determination as to the merits of the case. Where a penalty has been ordered by the competent authority as a result of the behaviour attributed to the person concerned, it can reasonably be considered that the competent authority had conducted a prior assessment of the circumstances of the case and whether or not the behaviour of the person concerned was lawful. – Considerations specific to the present case 99. As regards the circumstances of the present case, the Court observes first of all that in its order of 7 August 2008 the public prosecutor ’ s office at the Focşani District Court discontinued the criminal proceedings against the applicant, while also imposing an administrative penalty on him for the acts he had committed. This was therefore not a simple discontinuance order, in which case Article 4 of Protocol No. 7 to the Convention would no doubt have been inapplicable (see, to that effect, Marguš, cited above, § 120, and Smirnova and Smirnova and Harutyunyan, both cited above). 100. In the instant case, under domestic law the public prosecutor ’ s office was called upon to participate in the administration of criminal justice. The prosecutor had jurisdiction to investigate the applicant ’ s alleged actions, questioning a witness and the suspect to that end. Subsequently, he applied the relevant substantive rules laid down in domestic law; he had to assess whether the requirements were fulfilled for characterising the applicant ’ s alleged acts as a criminal offence. On the basis of the evidence produced, the prosecutor carried out his own assessment of all the circumstances of the case, relating both to the applicant individually and to the specific factual situation. After carrying out that assessment, again in accordance with the powers conferred on him under domestic law, the prosecutor decided to discontinue the prosecution, while imposing a penalty on the applicant that had a punitive and deterrent purpose (see paragraphs 11 to 15 above). The penalty imposed became enforceable on the expiry of the time-limit for an appeal by the applicant under domestic law. 101. Having regard to the investigation conducted by the prosecutor and to the powers conferred on him under domestic law to determine the case before him, the Court considers that in the present case the prosecutor ’ s assessment concerned both the circumstances and the establishment of the applicant ’ s “criminal” responsibility. Having regard also to the fact that a deterrent and punitive penalty was imposed on the applicant, the order of 7 August 2008 entailed his “conviction”, within the substantive meaning of the term. In view of the effects of the conviction on the applicant ’ s situation, the fact that no court had intervened in his case cannot alter that conclusion. ( β) Concerning the “final” nature of the prosecutor ’ s order of 7 August 2008 entailing the applicant ’ s “criminal conviction” – The Court ’ s approach in comparable previous cases and its elaboration for the purposes of the present case 102. The Court observes that according to the text of Article 4 of Protocol No. 7, to be afforded the benefit of the ne bis in idem principle the person concerned must have “already been finally acquitted or convicted in accordance with the law and penal procedure of that State”. This Article therefore includes an explicit reference to the law of the State which gave the decision in question. 103. The Court further notes that its case-law indicates (see, for example, Nikitin, cited above, § 37; Storbråten, ( dec. ), no. 12277/04, 1 February 2007; Horciag and Sundqvist, all cited above; and Sergey Zolotukhin, cited above, § 107) that in determining what was the “final” decision in cases before it, it has invariably referred to the criterion set forth in the explanatory report on Protocol No. 7, finding that a decision was “final”, whatever its characterisation under domestic law, after the exhaustion of “ordinary” remedies or the expiry of the time-limit laid down in domestic law for their use. Remedies which the Court has designated as “extraordinary” are not taken into account in determining what was the “final” decision for the purposes of Article 4 of Protocol No. 7 (see Nikitin, cited above, §§ 37-39; Sergey Zolotukhin, cited above, § 108; Sismanidis and Sitaridis v. Greece, nos. 66602/09 and 71879/12, § 42, 9 June 2016; and Šimkus v. Lithuania, no. 41788/11, § 47, 13 June 2017 ). In other words, in performing its scrutiny, the Court has not automatically taken into account the classification used in domestic law in determining whether or not a decision was “final”: it has conducted its own assessment of the “final” nature of a decision with reference to the “ordinary” remedies available to the parties. 104. Nevertheless, a reading of certain decisions given by the Court prior to the Sergey Zolotukhin and Marguš judgments (cited above), and more especially the Horciag, Sundqvist and Storbråten decisions (all cited above), might give the impression that the question of the final nature of a decision is exclusively governed by the domestic law of the State concerned (for an assessment of the same Romanian legal framework from the standpoint of Article 6 § 1 of the Convention, concerning length of proceedings, see also Stoianova and Nedelcu v. Romania, nos. 77517/01 and 77722/01, ECHR 2005 ‑ VIII). However, the references to domestic law in those decisions should be interpreted in a more qualified manner and be viewed in their context. 105. In Storbråten (cited above) the Court pointed out that regard should be had to domestic law in order to ascertain the “time” when a decision became final. The Court itself determined, in the light of the criterion set out in the explanatory report, what had been the “final” domestic decision, taking into account the procedures existing in domestic law. In that case, domestic law and the application of the criteria set out in the explanatory report led to the same outcome: the decision delivered by the Probate and Bankruptcy Court had become final in the absence of an appeal by the applicant, and thus after the expiry of the time-limit laid down in domestic law for making use of an “ordinary” remedy. 106. The cases of Horciag, Sundqvist and Stoianova and Nedelcu (all cited above) differ from the present case. In Horciag the applicant had been the subject of a decision to discontinue proceedings accompanied by a detention order – a preventive measure – and not a penalty. The cases of Sundqvist and Stoianova and Nedelcu centred on simple discontinuance orders, rather than decisions entailing “acquittal” or “conviction”. As previously mentioned (see paragraph 96 above), the discontinuance of criminal proceedings by a public prosecutor does not amount to a conviction or an acquittal. 107. At all events, even in Horciag (cited above) the Court sought to establish whether the judgment upholding a provisional psychiatric detention order constituted a final decision, by referring to the rules of domestic law governing that concept. It held, in particular, that “in view of the provisional nature of the detention and of its confirmation by a court, the resumption of the proceedings by the prosecutor ’ s office in accordance with Article 273 of the Code of Criminal Procedure was not precluded, even though the prosecution had previously been discontinued”. Accordingly, in determining whether the judgment confirming the applicant ’ s detention had been final, the Court examined the various concepts laid down in substantive law governing the nature of psychiatric detention and the domestic procedure for ordering such a measure. 108. Accordingly, the Court considers that the decisions in Storbråten, Horciag and Sundqvist (all cited above) cannot be construed as requiring the designation of a “final” decision, in cases of acquittals or convictions, exclusively with reference to domestic law. It further notes a common denominator emerging from its case-law in this area as a whole: in each case the Court itself has determined what the “final” domestic decision was with reference to the explanatory report and to various concepts laid down in domestic law. 109. The Court reiterates that it consistently relies on the text of the explanatory report on Protocol No. 7 to identify the “final” decision in a particular case (see paragraph 103 above). A reading not only of Article 4 § 1 of Protocol No. 7 but also of paragraph 27 of the explanatory report indicates that the successive use of the expressions “the same State” and “that State” is intended to limit the application of the Article exclusively to the national level and thus to prevent any cross-border application. As regards the word “final”, the report itself provides the “definition” to be used in determining whether a decision is to be considered “final” within the meaning of Article 4 of the Protocol, with reference to an international convention, namely the European Convention on the International Validity of Criminal Judgments (see paragraphs 22 and 29 of the explanatory report, cited in paragraph 37 above). In order to determine whether the decision in question is “final”, the Court must therefore ascertain, as indicated in the explanatory report, whether ordinary remedies were available against the decision or whether the parties have permitted the time-limit to expire without availing themselves of those remedies. 110. Consequently, where domestic law required a particular remedy to be used for a decision to be designated as final, the Court has drawn a distinction between “ordinary” and “extraordinary” remedies. In making that distinction, having regard to the specific circumstances of the individual case, the Court has considered such factors as the accessibility of a remedy to parties or the discretion afforded to authorised officials under domestic law as regards the use of a remedy (see, for example, Nikitin, cited above, § 39). Reaffirming the need to ensure observance of the principle of legal certainty, and referring to the difficulties which might arise under Article 4 of Protocol No. 7 where a judicial decision was set aside as a result of an “extraordinary” remedy, the Court has only taken into account “ordinary remedies” in determining the “final” nature of a decision for the purposes of Article 4 of Protocol No. 7 (see Nikitin, cited above, § 39), in the autonomous Convention meaning of the term (see Sergey Zolotukhin, cited above, § 109). 111. The Court would therefore highlight the importance it attached more recently, in the case of A and B v. Norway (cited above), to the criterion of the foreseeability of the application of the law as a whole as a condition for accepting that “dual” proceedings form part of an integrated scheme of sanctions under domestic law without giving rise to any duplication of proceedings (“ bis ”) for the purposes of Article 4 of Protocol No. 7 (ibid., §§ 122, 130, 132, 146 and 152). This criterion is likewise wholly relevant to the “final” nature of a decision, as the condition for triggering the application of the safeguard provided for in that Article. 112. In that context, the Court is obliged to note that under its well-established case-law, the “lawfulness” requirement set forth in other provisions of the Convention – including the expressions “in accordance with the law”, “prescribed by law” and “provided for by law” appearing in the second paragraph of Articles 8 to 11 of the Convention and in Article 1 of Protocol No. 1, and the expression “under national [emphasis added] or international law” contained in Article 7 – concerns not only the existence of a legal basis in domestic law but also a quality requirement inherent in the autonomous concept of lawfulness; this concept entails conditions regarding the accessibility and foreseeability of the “law”, as well as the requirement to afford a measure of protection against arbitrary interferences by the public authorities with the rights safeguarded by the Convention (see, for example, Rohlena v. the Czech Republic [GC], no. 59552/08, §§ 50 and 64, ECHR 2015, as regards Article 7; Rotaru v. Romania [GC], no. 28341/95, §§ 52-56, ECHR 2000 ‑ V; Bernh Larsen Holding AS and Others v. Norway, no. 24117/08, §§ 123-24 and 134, 14 March 2013; and Roman Zakharov v. Russia [GC], no. 47143/06, §§ 228-229, ECHR 2015, as regards Article 8; Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 143, ECHR 2012, as regards Article 10; Navalnyy v. Russia [GC], nos. 29580/12 and 4 others, §§ 114 ‑ 15 and 118, 15 November 2018, as regards Article 11; and Lekić v. Slovenia [GC], no. 36480/07, § 95, 11 December 2018, as regards Article 1 of Protocol No. 1; furthermore, as regards Article 5 § 1 of the Convention, see S., V. and A. v. Denmark [GC], nos. 35553/12 and 2 others, § 74, 22 October 2018, and Hilda Hafsteinsdóttir v. Iceland, , no. 40905/98, § 51, 8 June 2004). 113. As noted above, the Convention must be read as a whole, and interpreted in such a way as to promote internal consistency and harmony between its various provisions (see Klass and Others v. Germany, 6 September 1978, § 68, Series A no. 28; see also Maaouia v. France [GC], no. 39652/98, § 36, ECHR 2000-X; Kudła v. Poland [GC], no. 30210/96, § 152, ECHR 2000-XI; and Stec and Others, cited above, § 48). 114. In the light of those considerations, the Court considers that it must, to some extent, interpret the term “final” autonomously where this is justified by sound reasons, as indeed it does when establishing whether the legal characterisation of the offence is covered by the notion of “penal procedure” (see paragraphs 54 et seq. above). 115. In order to decide whether a decision is “final” within the meaning of Article 4 of Protocol No. 7, it must be ascertained whether it is subject to an “ordinary remedy”. In establishing the “ordinary” remedies in a particular case, the Court will take domestic law and procedure as its starting-point. Domestic law – both substantive and procedural – must satisfy the principle of legal certainty, which requires both that the scope of a remedy for the purposes of Article 4 of Protocol No. 7 be clearly circumscribed in time and that the procedure for its use be clear for those parties that are permitted to avail themselves of the remedy in question. In other words, for the principle of legal certainty to be satisfied, a principle which is inherent in the right not to be tried or punished twice for the same offence (see Nikitin, cited above, § 39), a remedy must operate in a manner bringing clarity to the point in time when a decision becomes final. In particular, the Court observes in this context that the requirement of a time-limit in order for a remedy to be regarded as “ordinary” is implicit in the wording of the explanatory report itself, which states that a decision is irrevocable where the parties have permitted the “time-limit” to expire without availing themselves of such a remedy. A law conferring an unlimited discretion on one of the parties to make use of a specific remedy or subjecting such a remedy to conditions disclosing a major imbalance between the parties in their ability to avail themselves of it would run counter to the principle of legal certainty (see, mutatis mutandis, Gacon v. France, no. 1092/04, § 34 in fine, 22 May 2008). 116. The Convention undoubtedly allows States, in the performance of their function as administrators of justice and guardians of the public interest, to define what, under their domestic law, constitutes a decision by which criminal proceedings are terminated with final effect. Nevertheless, if the Contracting States could determine as they saw fit when a decision was “final” for the purposes of Article 4 of Protocol No. 7, without scrutiny by the Court, the application of that Article would be left to their discretion. A latitude extending so far might lead to results incompatible with the purpose and object of the Convention (see, mutatis mutandis, Engel and Others, cited above, § 81; Öztürk v. Germany, 21 February 1984, § 49, Series A no. 73; and Storbråten, cited above), namely to ensure that no one is tried or punished twice for the same offence. If that right were not accompanied by a safeguard permitting the determination of the “final” decision in a particular case on the basis of objective criteria, it would be very limited in scope. However, the provisions of Article 4 of Protocol No. 7 must be interpreted and applied in a manner which renders its rights practical and effective, not theoretical and illusory (see Artico v. Italy, 13 May 1980, § 33, Series A no. 37, and Sergey Zolotukhin, cited above, § 80). – Application of the above principles in the present case 117. As regards the facts of the present case, the Court notes first of all that under Romanian legislation, the prosecutor ’ s order of 7 August 2008 imposing a penalty on the applicant while also discontinuing the criminal proceedings could not have constituted res judicata, since that concept only applies to judicial decisions. Similarly, as the order was subject to review by the higher-ranking prosecutor ’ s office, it was not final under domestic law. 118. Firstly, at the material time Article 249 1 of the CCP provided that an order by which the public prosecutor ’ s office applied Article 10 (b 1 ) of the CCP and thus imposed a penalty could be challenged within twenty days of the date on which the person concerned was notified of the order. The Court observes that this remedy had a legal basis in domestic law. As regards the quality of the law governing the remedy in question, it should be noted that the text of Article 249 1 was accessible to the applicant, given that it was part of the CCP, which was itself published in the Official Gazette. Article 249 1 clearly stated that where an order discontinuing the proceedings was based on Article 10 (b 1 ) of the CCP, the individual concerned could challenge it by means of an appeal, which had to be lodged within a time-limit established by law. If no appeal had been lodged on expiry of that time-limit, the order became enforceable. 119. The Court also notes that the remedy provided for in Article 249 1 of the CCP was directly accessible to the applicant, who could have challenged the penalty within a clearly defined time-limit. If the applicant had seen fit to avail himself of the remedy, it could have led to the reconsideration of the merits of the order and the sanction imposed. Accordingly, the Court considers that this means of challenging the prosecutor ’ s order is akin to an “ordinary” remedy within the meaning of its case-law and that it must be taken into account in determining the “final” decision in the present case. 120. Secondly, at the material time, the higher-ranking prosecutor ’ s office had the option of ordering the resumption of proceedings, pursuant to Articles 270 and 273 of the CCP as then in force, after the proceedings had been discontinued, even where the discontinuance order had been based on Article 10 (b 1 ) of the CCP and a penalty had been imposed. Before a decision could be taken to resume the proceedings in the latter scenario, the penalty imposed had to be set aside. This remedy also had a legal basis in domestic law, and Articles 270 and 273 of the CCP were accessible to the applicant, since they were published in the Official Gazette. 121. It remains to be determined whether that remedy, whereby the higher-ranking prosecutor ’ s office could set aside the penalty imposed and reopen the proceedings, may be regarded as an “ordinary” remedy satisfying the requirements of legal certainty (see Nikitin, cited above, § 39). 122. In this connection, the Court cannot overlook the very specific context of the present case, which relates to a stage in the criminal proceedings prior to the referral of the case to a court. Bearing in mind the principles governing the work of prosecutors ’ offices and their role in the initial stages of criminal proceedings, it is not unreasonable for a higher-ranking prosecutor ’ s office to examine of its own motion, in the context of hierarchical supervision, the merits of decisions taken by a lower-level prosecutor ’ s office. 123. The option available to the higher-ranking prosecutor ’ s office involved the re-examination of a particular case on the basis of the same facts and the same evidence as those underlying the initial prosecutor ’ s decision to terminate the criminal proceedings after an assessment of the degree of danger to society posed by the offence, and to impose a penalty classified as administrative under domestic law. 124. In the present case, the remedy available to the interested parties and the one available to the higher-ranking prosecutor ’ s office under Articles 270 and 273 of the CCP shared the same aim of challenging the validity of the penalty imposed on the applicant by the initial prosecutor ’ s office on 7 August 2008. As regards the use of remedies pursuing the same aim, the law at the material time laid down different conditions according to their potential users: while the applicant had to avail himself of his remedy within twenty days, the higher-ranking prosecutor ’ s office was not bound by any time-limit for reconsidering the merits of a decision. The Court acknowledges that on account of its powers and role in the proper administration of criminal justice, the prosecutor ’ s office may have been entitled to different conditions in performing its review. Nevertheless, the fact remains that on account of the lack of a time-limit, Romanian law did not regulate with sufficient clarity the manner in which that remedy was to be used, thus creating genuine uncertainty as to the applicant ’ s legal situation (see paragraph 112 above), and that this discrepancy resulted in a major imbalance between the parties in their ability to make use of the remedies in question, of such a nature as to place the applicant in a situation of legal uncertainty (see paragraph 115 in fine above). 125. Therefore, the option available under Articles 270 and 273 of the CCP as in force at the material time did not constitute an “ordinary remedy” to be taken into account in determining whether the applicant ’ s conviction on the basis of the order issued by the lower-level prosecutor ’ s office on 7 August 2008 was final “in accordance with the law and penal procedure of [the] State” in question. 126. Having regard to the foregoing, the Court considers that only the option set out in Article 249 1 of the CCP as in force at the material time constituted an “ordinary” remedy to be taken into consideration in determining the “final” decision. In the instant case, the prosecutor ’ s order of 7 August 2008 fining the applicant was subject to appeal within twenty days from the date on which the applicant was notified of it. However, the applicant did not see fit to avail himself of the remedy provided for in Article 249 1 of the CCP. Although the date on which he was notified of the order of 7 August 2008 is unknown, he nonetheless took cognisance of it, allowed the twenty-day time-limit laid down in Article 249 1 of the CCP to expire and paid the fine imposed. The applicant had no other ordinary remedy available. Consequently, the order of 7 August 2008 in which a fine was imposed on the applicant had become “final”, within the autonomous Convention meaning of the term, on the expiry of the twenty-day time-limit laid down in Article 249 1 of the CCP, by the time when the higher-ranking prosecutor ’ s office exercised its discretion to reopen the criminal proceedings. (iii) Whether the duplication of the proceedings was contrary to Article 4 of Protocol No. 7 127. The Court has found that the applicant was convicted in a final decision based on the order of 7 August 2008. In its order of 7 January 2009 the higher-ranking prosecutor ’ s office set aside the initial prosecutor ’ s order of 7 August 2008 and the penalty imposed. Although the applicant was not punished twice for the same facts – since the initial penalty imposed on him had been set aside and he had the opportunity to secure the reimbursement of the fine – the case nevertheless involved two successive sets of criminal proceedings which concerned the same facts and were thus incompatible, on the face of it, with the first paragraph of Article 4 of Protocol No. 7. Even so, such a duplication of proceedings may be compatible with Article 4 of Protocol No. 7 if the second set of proceedings involves the reopening of a case where this satisfies the requirements linked to the exception provided for in Article 4 § 2 of Protocol No. 7. 128. Article 4 of Protocol No. 7 to the Convention draws a clear distinction between a second prosecution or trial, which is prohibited by the first paragraph of that Article, and the resumption of a trial in exceptional circumstances, a situation referred to in its second paragraph. Article 4 § 2 of Protocol No. 7 expressly envisages the possibility that an individual may have to accept prosecution on the same charges, in accordance with domestic law, where a case is reopened following the emergence of new evidence or the discovery of a fundamental defect in the previous proceedings (see Nikitin, cited above, § 45, and Kadušić, cited above, § 84). The Committee of Ministers of the Council of Europe has also considered that the possibility of re-examining or reopening a case provides a guarantee of redress, particularly in the context of the execution of the Court ’ s judgments. In its Recommendation No. R (2000) 2 on the re-examination or reopening of certain cases at domestic level following judgments of the European Court of Human Rights, it urged member States to ensure that their national legal systems provided for appropriate procedures for re-examining or reopening cases (see Nikitin, cited above, § 56). 129. Article 4 § 2 of Protocol No. 7 sets a limit on the application of the principle of legal certainty in criminal matters. As the Court has stated on many occasions, the requirements of legal certainty are not absolute, and in criminal cases, they must be assessed in the light of Article 4 § 2 of Protocol No. 7, which expressly permits Contracting States to reopen a case where new facts emerge, or where a fundamental defect is detected in the proceedings (ibid.). ( α) Conditions permitting the reopening of a case within the meaning of the exception set out in Article 4 § 2 of Protocol No. 7 130. As previously noted (see paragraph 128 above), the reopening of proceedings is possible but is subject to strict conditions: the decision to reopen the case must be justified by the emergence of new or newly discovered facts or the discovery of a fundamental defect in the previous proceedings which could affect the outcome of the case. Those conditions are alternative and not cumulative. 131. The Court has already explained that circumstances relating to the case which exist during the trial, but remain hidden from the judge, and become known only after the trial, are “newly discovered”. Circumstances which concern the case but arise only after the trial are “new” (see Bulgakova v. Russia, no. 69524/01, § 39, 18 January 2007, and Vedernikova v. Russia, no. 25580/02, § 30, 12 July 2007 – as regards Article 6). The Court also considers, as is moreover noted in the explanatory report on Protocol No. 7, that the term “new or newly discovered facts” includes new evidence relating to previously existing facts (see paragraph 31 of the explanatory report, cited in paragraph 37 above). 132. In some cases, the Court has also found the exception set out in Article 4 § 2 of Protocol No. 7 to be applicable in the event of the reopening of proceedings on account of a “fundamental defect in the previous proceedings”. In the case of Fadin v. Russia (no. 58079/00, § 32, 27 July 2006), for example, it held that the reopening of proceedings on the grounds that the lower-level court had not followed the instructions given to it by the Supreme Court as regards the investigative measures to be carried out had been justified by a fundamental defect in the previous proceedings and was therefore compatible with Article 4 § 2 of Protocol No. 7 (see also Bratyakin v. Russia ( dec. ), no. 72776/01, 9 March 2006, and Goncharovy v. Russia, no. 77989/01, 27 November 2008). 133. The case-law referred to above thus indicates that the Court assesses on a case-by-case basis whether the circumstances relied upon by a higher-level authority to reopen proceedings amount to new or newly discovered facts or a fundamental defect in the previous proceedings. The concept of “fundamental defect” within the meaning of Article 4 § 2 of Protocol No. 7 suggests that only a serious violation of a procedural rule severely undermining the integrity of the previous proceedings can serve as the basis for reopening the latter to the detriment of the accused, where he or she has been acquitted of an offence or punished for an offence less serious than that provided for by the applicable law. Consequently, in such cases, a mere reassessment of the evidence on file by the public prosecutor or the higher-level court would not fulfil that criterion. However, as regards situations where an accused has been found guilty and a reopening of proceedings might work to his advantage, the Court points out that paragraph 31 of the explanatory report to Protocol No. 7 (see paragraph 37 above) emphasises that “ this article does not prevent a reopening of the proceedings in favour of the convicted person and any other changing of the judgment to the benefit of the convicted person”. In such situations, therefore, the nature of the defect must be assessed primarily in order to ascertain whether there has been a violation of the defence rights and therefore an impediment to the proper administration of justice. Lastly, in all cases, the grounds justifying the reopening of proceedings must, according to Article 4 § 2 of Protocol No. 7 in fine, be such as to “affect the outcome of the case” either in favour of the person or to his or her detriment (see, to that effect, paragraph 30 of the explanatory report to Protocol No. 7, cited in paragraph 37 above). ( β) Considerations specific to the present case 134. Turning to the circumstances of the case, the Court notes that the higher-ranking prosecutor ’ s order and the subsequent proceedings concerned the same accusations as those that had given rise to the proceedings resulting in the order of 7 August 2008, and that their purpose was to review whether that order was well-founded. The higher-ranking prosecutor ’ s order of 7 January 2009 had the effect of entirely setting aside the previous order of 7 August 2008. This was necessary to enable the case file to be returned to the same prosecutor ’ s office, which could then continue the investigation in compliance with the orders issued, that is to say instituting criminal proceedings against the applicant and committing him for trial. Following the institution of fresh proceedings, the applicant stood trial, in the course of which the criminal charges against him were determined in a new, single decision. The present case therefore involves a system permitting the resumption of proceedings, which may be regarded as a special form of reopening for the purposes of Article 4 § 2 of Protocol No. 7 (see Nikitin, cited above, § 46, and Fadin, cited above, § 31). 135. It is clear from the order of 7 January 2009 that the reopening concerned the same facts as those forming the subject of the order of 7 August 2008. The higher-ranking prosecutor gave his decision on the basis of the same case file as the initial prosecutor, no new evidence having been adduced and examined. The reopening of the case was therefore not justified by the emergence of new or newly discovered facts, a finding which, moreover, does not appear to be in dispute. 136. Conversely, the Government argued that the reopening of the criminal proceedings had been justified by a fundamental defect in the previous proceedings and had been necessary in order to ensure the standardisation of practice concerning the assessment of the seriousness of certain offences (see paragraph 76 above). However, the Court observes that that aspect was not mentioned in the order of 7 January 2009. The Prosecutor General ’ s memorandum, which was published long after the facts, contained no clear indications on how Article 18 1 of the Criminal Code should be interpreted in the context of road traffic offences. In any event, the reason put forward by the Government – the need to harmonise practice in this area – is not covered by the exceptional circumstances referred to in Article 4 § 2 of Protocol No. 7, that is to say, the emergence of new or newly discovered facts or the discovery of a fundamental defect in the previous proceedings. 137. Nevertheless, according to the same order of 7 January 2009, the reopening of the proceedings in the present case was justified by the higher-ranking prosecutor ’ s different assessment of the circumstances, which in his view should have given rise to criminal rather than “administrative” liability on the applicant ’ s part. The higher-ranking prosecutor also referred to the inadequacy of the penalty imposed. A fresh assessment was conducted of the seriousness of the accusations against the applicant and of the penalty imposed; no mention was made of any need to remedy a breach of a procedural rule or a serious omission in the proceedings or in the investigation conducted by the initial public prosecutor ’ s office. But as pointed out above, a [mere] reassessment of the facts in the light of the applicable law does not constitute a “fundamental defect” in the previous proceedings (contrast Fadin, cited above, § 32; Bratyakin, cited above; and Goncharovy, cited above; and see, mutatis mutandis, Savinskiy v. Ukraine, no. 6965/02, § 25, 28 February 2006, and Bujniţa v. Moldova, no. 36492/02, § 23, 16 January 2007). 138. Having regard to the foregoing, the Court considers that the reasons given by the higher-ranking prosecutor ’ s office to justify the reopening of the proceedings on the basis of the order of 7 January 2009 are at variance with the strict conditions imposed by Article 4 § 2 of Protocol No. 7. Therefore, the reopening of the proceedings in the instant case was not justified by the exception set out in that provision. 4. General conclusion 139. The Court finds that the applicant was convicted on the basis of the order of 7 August 2008, which had become final when a further prosecution was triggered by the order of 7 January 2009. Given that none of the situations permitting the combination or reopening of proceedings has been observed in the present case, the Court concludes that the applicant was tried twice for the same offence, in breach of the ne bis in idem principle. There has accordingly been a violation of Article 4 of Protocol No. 7 to the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 140. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 141. In his claim for just satisfaction submitted to the Chamber the applicant sought 15,000 (EUR) in respect of non-pecuniary damage. The Government submitted that any finding of a violation could in itself constitute sufficient redress. In the alternative, they submitted that the amount claimed was speculative and excessive. 142. Following the Chamber ’ s relinquishment of jurisdiction to the Grand Chamber, in order to avoid complicated references to the observations previously submitted to the Chamber, the parties were invited to submit fresh observations on the admissibility and the merits of the application by 14 June 2018. Furthermore, the applicant was invited to resubmit his claim for just satisfaction. 143. In his observations of 14 June 2018 before the Grand Chamber, the applicant did not make any specific claims for just satisfaction. At the hearing before the Grand Chamber, his representative nevertheless concluded his address by requesting that the applicant “be awarded the sum previously claimed in respect of just satisfaction.” 144. Further to those indications, the Government made no comments on the issue of just satisfaction. 145. The Court reiterates that that Article 41 empowers it to afford the injured party such satisfaction as appears to be appropriate (see Karácsony and Others v. Hungary [GC], nos. 42461/13 and 44357/13, § 179, 17 May 2016, and Lopes de Sousa Fernandes v. Portugal [GC], no. 56080/13, § 245, 19 December 2017). 146. It observes in this connection that it is beyond doubt that a claim for just satisfaction was duly submitted to the Chamber, within the time allowed, in the course of the procedure following notification of the application (contrast Schatschaschwili v. Germany [GC], no. 9154/10, § 167, ECHR 2015, and Nagmetov v. Russia [GC], no. 35589/08, § 62, 30 March 2017). The Court further notes that although the applicant did not make any fresh claim for just satisfaction within the time allowed in the proceedings before the Grand Chamber, he subsequently referred to his claim before the Chamber. The Government, who had the opportunity to respond to this claim at the hearing, did not object. 147. In view of the above, the Court is satisfied that a “claim” for just satisfaction has been made before it in the present case. 148. The Court considers in this regard that a mere finding of a violation is insufficient to compensate the applicant for the sense of injustice and frustration which he must have felt on account of the reopening of the proceedings (see, to similar effect, Jóhannesson and Others, cited above, § 61). Given the nature of the violation found and making its assessment on an equitable basis, the Court awards the applicant EUR 5,000 in respect of non-pecuniary damage. B. Costs and expenses 149. The applicant, who was granted legal aid for the proceedings before the Grand Chamber, had claimed EUR 570 before the Chamber in respect of the costs and expenses incurred before the domestic courts and the Court. 150. The Government argued before the Chamber that the costs incurred before the domestic courts had no causal link with the violation of the Convention alleged by the applicant. As regards the costs incurred during the proceedings before the Court, they submitted that they had not been substantiated by relevant documents. 151. The Court observes that the applicant was granted legal aid for the costs and expenses incurred in the proceedings before the Grand Chamber. Nonetheless, having regard to the claim submitted to the Chamber, the documents in its possession, its case-law and the fact that the applicant was forced to mount a defence in criminal proceedings which had been instituted and reopened in breach of Article 4 of Protocol No. 7 to the Convention (see Grande Stevens and Others v. Italy, nos. 18640/10 and 4 others, § 244, 4 March 2014), the Court considers it reasonable to award the applicant the sum of EUR 470 to cover costs under all heads. C. Default interest 152. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 4 of Protocol No. 7, finding that the applicant had been prosecuted twice for the same offence and that the reopening of the proceedings had not been justified. It noted in particular that the applicant had been the subject of an initial set of criminal proceedings, during which the public prosecutor’s office had imposed an administrative fine on him, which became final on expiry of the time-limit set out in Article 2491 of the Code of Criminal Procedure. Subsequently, the higher-ranking prosecutor’s office set aside the lower prosecutor’s decision and committed the applicant for trial. He was sentenced to one year’s imprisonment, suspended. |
231 | The definition of idem | II. RELEVANT DOMESTIC LAW A. Substantive law 1. The Criminal Code 13. By Article 80 of the Criminal Code ( Strafgesetzbuch ): "It shall be an offence, punishable with up to one year's imprisonment, for any person to cause the death of another by negligence." 14. Article 81 para. 2 of the Criminal Code provides: "It shall be an offence, punishable with up to three years' imprisonment, for any person to cause the death of another by negligence 1. ... 2. after allowing himself, even if only negligently, to become intoxicated ... through the consumption of alcohol, but not to an extent which excludes his responsibility, notwithstanding that he has foreseen or could have foreseen that he would shortly have to engage in an activity likely to pose ... a danger to the lives ... of others if performed in that state." Under an irrebuttable presumption applied by the criminal courts, a driver with a blood alcohol level of 0.8 grams per litre or higher is deemed to be "intoxicated" for the purposes of Article 81 para. 2 of the Criminal Code ( Foregger/Serini, Kurzkommentar zum Strafgesetzbuch, 4th edition, 1988, p. 217). 2. The Road Traffic Act 15. Under section 5 of the Road Traffic Act 1960 it is an offence for any person to drive a vehicle if the proportion of alcohol in his blood or breath is equal to or higher than 0.8 grams per litre or 0.4 milligrams per litre respectively. The same section also lays down the conditions for the use of breathalysers and blood tests. 16. Since 1 May 1986 section 99(1)(a) of the Act has provided: "It shall be an administrative offence ( Verwaltungsübertretung ), punishable with a fine of not less than 8,000 and not more than 50,000 schillings or, in default of payment, with one to six weeks' imprisonment, for any person: (a) to drive ... a vehicle when under the influence of drink ..." 17. In 1958, at the time when the Austrian Government ratified the Convention (see paragraph 28 below), section 7 of the Traffic Police Act 1947 ( Straßenpolizeigesetz ) provided: "Every driver shall be under a duty to pay reasonable heed to other road users and to display the care and diligence necessary to ensure the maintenance of order, safety and a proper flow of traffic." B. Procedure 18. Article 90 para. 1 of the Federal Constitution ( Bundes-Verfassungsgesetz ) provides: "Hearings by trial courts in civil and criminal cases shall be oral and public. Exceptions may be prescribed by law." 1. Proceedings in the Constitutional Court 19. By Article 144 para. 1 of the Federal Constitution the Constitutional Court, when an application ( Beschwerde ) is made to it, has to determine whether an administrative decision ( Bescheid ) has infringed a right guaranteed by the Constitution or has applied regulations ( Verordnung ) contrary to the law, a law contrary to the Constitution or an international treaty incompatible with Austrian law. Article 144 para. 2 provides: "Up to the time of the hearing the Constitutional Court may by means of a decision ( Beschluß ) decline to accept a case for adjudication if it does not have sufficient prospects of success or if it cannot be expected that the judgment will clarify an issue of constitutional law. The court may not decline to accept for adjudication a case excluded from the jurisdiction of the Administrative Court by Article 133." 2. Proceedings in the Administrative Court 20. By Article 130 para. 1 of the Federal Constitution, the Administrative Court has jurisdiction to hear, inter alia, applications alleging that an administrative decision is unlawful. 21. Section 35(1) of the Administrative Court Act ( Verwaltungsgerichtshofsgesetz ) provides: "Applications from whose content it is apparent that the contravention of the law alleged by the applicant has not occurred shall be dismissed, at a private sitting, without further formality." 22. Section 39(1) provides, in particular, that at the end of the preliminary proceedings ( Vorverfahren ) the Administrative Court must hold a hearing where the applicant makes a request to that effect. Section 39(2) reads as follows: "Notwithstanding a party's application under subsection (1), the Administrative Court may decide not to hold a hearing where 1. the proceedings must be stayed (section 33) or the application dismissed (section 34); 2. the impugned decision must be quashed as unlawful because the respondent authority lacked jurisdiction (section 42(2)(2)); 3. the impugned decision must be quashed as unlawful on account of a breach of procedural rules (section 42(2)(3)); 4. the impugned decision must be quashed because its content is unlawful according to the established case-law of the Administrative Court; 5. neither the respondent authority nor any other party before the court has filed pleadings in reply and the impugned decision is to be quashed; 6. it is apparent to the court from the pleadings of the parties to the proceedings before it and from the files relating to the earlier administrative proceedings that a hearing is not likely to clarify the case further." Sub-paragraphs 1 to 3 of section 39(2) were in force in 1958; sub-paragraphs 4 and 5 were inserted in 1964 and sub-paragraph 6 in 1982. 23. Section 41(1) of the Administrative Court Act provides: "In so far as the Administrative Court does not find any unlawfulness deriving from the respondent authority's lack of jurisdiction or from breaches of procedural rules (section 42 (2)(2) and (3)) ..., it must examine the impugned decision on the basis of the facts found by the respondent authority and with reference to the complaints put forward ... If it considers that reasons which have not yet been notified to one of the parties might be decisive for ruling on [one of these complaints] ..., it must hear the parties on this point and adjourn the proceedings if necessary." 24. Section 42(1) of the same Act states that, save as otherwise provided, the Administrative Court must either dismiss an application as ill-founded or quash the impugned decision. By section 42(2), "The Administrative Court shall quash the impugned decision if it is unlawful 1. by reason of its content, [or] 2. because the respondent authority lacked jurisdiction, [or] 3. on account of a breach of procedural rules, in that (a) the respondent authority has made findings of fact which are, in an important respect, contradicted by the case file, or (b) the facts require further investigation on an important point, or (c) procedural rules have been disregarded, compliance with which could have led to a different decision by the respondent authority." 25. If the Administrative Court quashes the impugned decision, "the administrative authorities [are] under a duty ... to take immediate steps, using the legal means available to them, to bring about in the specific case the legal situation which corresponds to the Administrative Court's view of the law ( Rechtsanschauung )" (section 63(1)). 26. In a judgment of 14 October 1987 (G 181/86) the Constitutional Court held: "From the fact that it has been necessary to extend the reservation in respect of Article 5 (art. 5) of the Convention to cover the procedural safeguards of Article 6 (art. 6) of the Convention, because of the connection between those two provisions (art. 5, art. 6), it follows that, conversely, the limited review (die ( bloß ) nachprüfende Kontrolle ) carried out by the Administrative Court or the Constitutional Court is insufficient in respect of criminal penalties within the meaning of the Convention that are not covered by the reservation." 3. The "independent administrative tribunals" 27. Pursuant to Article 129 of the Federal Constitution, administrative courts called "independent administrative tribunals" ( Unabhängige Verwaltungssenate ) were set up in the Länder with effect from 1 January 1991. The functions of these tribunals include determining both the factual and the legal issues arising in cases concerning administrative offences ( Verwaltungsübertretungen ). PROCEEDINGS BEFORE THE COMMISSION 30. Mr Gradinger applied to the Commission on 22 May 1989. Relying on Article 6 (art. 6) of the Convention, he complained that he had been convicted, contrary to the "non bis in idem" principle, by an administrative authority which, furthermore, could not be considered an "independent and impartial tribunal" and had called on the services of its own experts. At the hearing he also alleged a violation of Article 6 para. 2 (art. 6-2), which enshrined the presumption of innocence. 31. On 10 May 1993 the Commission rejected the complaint relating to Article 6 para. 2 (art. 6-2) for failure to comply with the six-month rule (Article 26 read in conjunction with Article 27 para. 3 of the Convention) (art. 26+27-3) and declared the remainder of the application (no. 15963/90) admissible. In its report of 19 May 1994 (Article 31) (art. 31), it expressed the unanimous opinion that there had been a violation of Article 6 para. 1 (art. 6-1) of the Convention (right to an independent and impartial tribunal) and Article 4 of Protocol No. 7 (P7-4); it also expressed the view that no separate issue arose under Article 6 para. 1 (art. 6-1) regarding the lack of a hearing in the Administrative Court (unanimously). The full text of the Commission's opinion and of the concurring opinion contained in the report is reproduced as an annex to this judgment [4]. FINAL SUBMISSIONS TO THE COURT BY THE GOVERNMENT 32. In their memorial the Government asked the Court "1. to find that Article 6 (art. 6) is not applicable in the case at issue; alternatively, 2. to find that there was no violation of Article 6 (art. 6) in connection with the administrative criminal proceedings underlying the present application; 3. to declare the application in respect of the concerns raised under Article 4 of Protocol No. 7 (P7-4) incompatible ratione temporis with the Convention pursuant to Article 27 para. 2 (art. 27-2); or alternatively, 4. to find that Article 4 of Protocol No. 7 (P7-4) to the Convention was not infringed in the administrative criminal proceedings underlying the application". AS TO THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1) OF THE CONVENTION 33. The applicant complained of a violation of Article 6 para. 1 (art. 6-1) of the Convention, which provides: "In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal ..." He had, he maintained, been denied the right to a "tribunal" and to a hearing before such a body. A. Applicability of Article 6 para. 1 (art. 6-1) 1. Whether there was a "criminal charge" 34. In Mr Gradinger's submission, the administrative criminal offence of which he was accused gave rise to a "criminal charge". This was not disputed by the Government. 35. In order to determine whether an offence qualifies as "criminal" for the purposes of the Convention, it is first necessary to ascertain whether or not the provision (art. 6-1) defining the offence belongs, in the legal system of the respondent State, to criminal law; next the "very nature of the offence" and the degree of severity of the penalty risked must be considered (see, among other authorities, the Öztürk v. Germany judgment of 21 February 1984, Series A no. 73, p. 18, para. 50, and the Demicoli v. Malta judgment of 27 August 1991, Series A no. 210, pp. 15-17, paras. 31-34). 36. Like the Commission, the Court notes that, although the offences in issue and the procedures followed in the case fall within the administrative sphere, they are nevertheless criminal in nature. This is moreover reflected in the terminology employed. Thus Austrian law refers to administrative offences ( Verwaltungsstraftaten ) and administrative criminal procedure ( Verwaltungsstrafverfahren ). In addition, the fine imposed on the applicant was accompanied by an order for his committal to prison in the event of his defaulting on payment (see paragraph 16 above). These considerations are sufficient to establish that the offence of which the applicant was accused may be classified as "criminal" for the purposes of the Convention. It follows that Article 6 (art. 6) applies. 2. Austria 's reservation in respect of Article 5 (art. 5) of the Convention 37. According to the Government, the procedure in question was covered by Austria 's reservation in respect of Article 5 (art. 5) of the Convention. There could be no doubt that by the reference in that reservation to "measures for the deprivation of liberty" the Austrian Government had meant to include proceedings resulting in such measures. Any other construction would not only lack coherence; it would also run counter to the authorities' intention, which had been to remove from the scope of the Convention the whole administrative system, including the substantive and procedural provisions of administrative criminal law. That would be so even in a case where, as in this instance, the accused was merely fined, in so far as default on payment of that fine would entail committal to prison. Admittedly, the Road Traffic Act 1960 was not one of the four laws designated in the reservation. However, one of those laws, the Administrative Criminal Justice Act, stated in section 10 that, except as otherwise provided, the general administrative laws were to determine the nature and severity of sanctions. It mattered little in this respect that section 5 of the Road Traffic Act, which was applied in the present case, had been enacted after the reservation had been deposited, because that provision merely clarified the substance of an existing obligation laid down in section 7 of the Traffic Police Act 1947 (see paragraph 17 above). 38. The applicant argued that the reservation could not apply in the present case. In the first place, it failed to satisfy the requirements of Article 64 (art. 64) of the Convention, which provides: "1. Any State may, when signing [the] Convention or when depositing its instrument of ratification, make a reservation in respect of any particular provision of the Convention to the extent that any law then in force in its territory is not in conformity with the provision (art. 64). Reservations of a general character shall not be permitted under this Article (art. 64). 2. Any reservation made under this Article (art. 64) shall contain a brief statement of the law concerned." Secondly, on a strict construction, its wording precluded extending its scope to the procedural sphere, which was in issue here. 39. The Court points out that in the Chorherr v. Austria judgment of 25 August 1993 it held that Austria's reservation in respect of Article 5 (art. 5) of the Convention was compatible with Article 64 (art. 64) (Series A no. 266-B, p. 35, para. 21). It therefore remains only to ascertain whether the provisions (art. 5, art. 64) applied in the present case are covered by that reservation. They differ in certain essential respects from those in issue in the Chorherr case. The Court notes that Mr Gradinger based his complaints on Article 6 (art. 6) of the Convention, whereas the wording of the reservation invoked by the Government mentions only Article 5 (art. 5) and makes express reference solely to measures for the deprivation of liberty. Moreover, the reservation only comes into play where both substantive and procedural provisions of one or more of the four specific laws indicated in it have been applied. Here, however, the substantive provisions of a different Act, the Road Traffic Act 1960, were applied. These considerations are a sufficient basis for concluding that the reservation in question does not apply in the instant case. B. Compliance with Article 6 para. 1 (art. 6-1) 1. Access to a tribunal 40. Mr Gradinger contended that none of the bodies that had dealt with his case in the proceedings in issue could be regarded as a "tribunal" within the meaning of Article 6 para. 1 (art. 6-1). This was true not only of the administrative authorities, but also of the Constitutional Court, whose review was confined to constitutional issues, and above all of the Administrative Court. The latter was bound by the administrative authorities' findings of fact, except where there was a procedural defect within the meaning of section 42(2), sub-paragraph 3, of the Administrative Court Act (see paragraph 24 above). It was therefore not empowered to take evidence itself, or to establish the facts, or to take cognisance of new matters. Moreover, in the event of its quashing an administrative measure, it was not entitled to substitute its own decision for that of the authority concerned, but had always to remit the case to that authority. In short, its review was confined exclusively to questions of law and therefore could not be regarded as equivalent to that of a body with full jurisdiction. 41. The Government contested this view, whereas the Commission accepted it. 42. The Court reiterates that decisions taken by administrative authorities which do not themselves satisfy the requirements of Article 6 para. 1 (art. 6-1) of the Convention - as is the case in this instance with the district authority and the regional government (see paragraphs 9 and 10 above) - must be subject to subsequent control by a "judicial body that has full jurisdiction" (see, inter alia and mutatis mutandis, the following judgments: Albert and Le Compte v. Belgium of 10 February 1983, Series A no. 58, p. 16, para. 29; Öztürk, previously cited, pp. 21-22, para. 56; and Fischer v. Austria of 26 April 1995, Series A no. 312, p. 17, para. 28). 43. The Constitutional Court is not such a body. In the present case it could look at the impugned proceedings only from the point of view of their conformity with the Constitution, and this did not enable it to examine all the relevant facts. It accordingly lacked the powers required under Article 6 para. 1 (art. 6-1). 44. The powers of the Administrative Court must be assessed in the light of the fact that the court in this case was sitting in proceedings that were of a criminal nature for the purposes of the Convention. It follows that when the compatibility of those powers with Article 6 para. 1 (art. 6-1) is being gauged, regard must be had to the complaints raised in that court by the applicant as well as to the defining characteristics of a "judicial body that has full jurisdiction". These include the power to quash in all respects, on questions of fact and law, the decision of the body below. As the Administrative Court lacks that power, it cannot be regarded as a "tribunal" within the meaning of the Convention. Moreover, in a judgment of 14 October 1987 the Constitutional Court held that in respect of criminal penalties not covered by the reservation in respect of Article 5 (art. 5), the limited review carried out by the Administrative Court or the Constitutional Court was insufficient (see paragraph 26 above). 45. It follows that the applicant did not have access to a "tribunal". There has accordingly been a violation of Article 6 para. 1 (art. 6-1) on this point. 2. Lack of a hearing and failure to take evidence from witnesses 46. Mr Gradinger further criticised the Administrative Court for failing to hold a hearing or take evidence from witnesses. 47. Having regard to the conclusion set out in paragraph 45 above, the Court does not consider it necessary to examine these complaints. II. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL No. 7 (P7-4) 48. The applicant maintained in addition that, by fining him pursuant to section 5 of the Road Traffic Act, the district authority and the regional government had punished him in respect of facts that were identical with those on the basis of which the Regional Court had decided that he did not have a case to answer under Article 81 para. 2 of the Criminal Code. As both these provisions in substance prohibited driving a vehicle with a blood alcohol level of 0.8 grams per litre or higher, there had been a breach of Article 4 of Protocol No. 7 (P7-4), which provides: "1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State. 2. The provisions (P7-4) of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case. 3. No derogation from this Article (P7-4) shall be made under Article 15 (art. 15) of the Convention." A. The reservation in respect of Article 4 (P7-4) 49. The Government argued that the provision (P7-4) relied on by the applicant could not be invoked in the instant case because Austria 's declaration limited its scope exclusively to "criminal proceedings in the sense of the Austrian Code of Criminal Procedure" (see paragraph 29 above), thereby excluding administrative or disciplinary proceedings. 50. Like the Commission, the Court considers that the "declaration" is to be regarded as a reservation within the meaning of Article 64 (art. 64) of the Convention (see, mutatis mutandis, the Belilos v. Switzerland judgment of 29 April 1988, Series A no. 132, p. 24, para. 49). Indeed, the Government did not dispute this. It is therefore necessary to determine whether the declaration satisfies the requirements of that provision (art. 64). 51. The Court notes at the outset that there is no "brief statement" of the law which is said not to conform to Articles 3 and 4 of Protocol No. 7 (P7-3, P7-4). Admittedly, it can be inferred from the wording of the "declaration" that Austria intended all proceedings that were not "criminal proceedings in the sense of the Austrian Code of Criminal Procedure" to be excluded from the scope of Articles 3 and 4 (P7-3, P7-4); the Government rightly drew attention to this. Nevertheless, with a description of this nature, which is not exhaustive, the "declaration" does not afford to a sufficient degree "a guarantee ... that [it] does not go beyond the provisions expressly excluded" by Austria (see, as the most recent authority, the Chorherr judgment previously cited, p. 34, para. 20). Accordingly, the declaration does not satisfy the requirements of Article 64 para. 2 (art. 64-2). This conclusion is a sufficient basis for finding the "declaration" invalid, without its being necessary also to examine whether the other requirements of Article 64 (art. 64) were complied with. B. Applicability ratione temporis of Article 4 (P7-4) 52. The Government contended further that Article 4 of Protocol No. 7 (P7-4) was inapplicable ratione temporis. Under section 1(2) of the Administrative Criminal Justice Act ( Verwaltungsstrafgesetz ), the sanction imposed depended on the law in force when the offence was committed or when the first-instance decision was delivered, if that was more favourable to the accused. In the present case the relevant dates were respectively 1 January and 16 July 1987, whereas Protocol No. 7 (P7) had not entered into force until 1 November 1988. The fact that the Administrative Court had given judgment after that date, on 29 March 1989, made no difference, because it too was required to rule on the basis of the law applicable when the offence was committed or when the first-instance decision was delivered. 53. Like the Commission, the Court observes that the aim of Article 4 of Protocol No. 7 (P7-4) is to prohibit the repetition of criminal proceedings that have been concluded by a final decision. That provision (P7-4) does not therefore apply before new proceedings have been opened. In the present case, inasmuch as the new proceedings reached their conclusion in a decision later in date than the entry into force of Protocol No. 7 (P7), namely the Administrative Court 's judgment of 29 March 1989, the conditions for applicability ratione temporis are satisfied. C. Compliance with Article 4 (P7-4) 54. In reply to Mr Gradinger's arguments (see paragraph 48 above), which the Commission endorsed in substance, the Government affirmed that Article 4 of Protocol No. 7 (P7-4) did not preclude applying the two provisions in issue consecutively. The latter were different in nature and pursued different aims: whereas Article 81 para. 2 of the Criminal Code punished homicide committed while under the influence of drink, section 5 of the Road Traffic Act punished the mere fact of driving a vehicle while intoxicated. The former was designed to penalise acts that cause death and threaten public safety, the latter to ensure a smooth flow of traffic. 55. The Court notes that, according to the St Pölten Regional Court, the aggravating circumstance referred to in Article 81 para. 2 of the Criminal Code, namely a blood alcohol level of 0.8 grams per litre or higher, was not made out with regard to the applicant. On the other hand, the administrative authorities found, in order to bring the applicant's case within the ambit of section 5 of the Road Traffic Act, that that alcohol level had been attained. The Court is fully aware that the provisions in question differ not only as regards the designation of the offences but also, more importantly, as regards their nature and purpose. It further observes that the offence provided for in section 5 of the Road Traffic Act represents only one aspect of the offence punished under Article 81 para. 2 of the Criminal Code. Nevertheless, both impugned decisions were based on the same conduct. Accordingly, there has been a breach of Article 4 of Protocol No. 7 (P7-4). III. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION 56. Under Article 50 (art. 50) of the Convention, "If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party." 57. Mr Gradinger claimed the sum of ATS 293,130 for the costs and expenses incurred in the proceedings in the national courts and then before the Convention institutions. 58. The Government expressed the view that only the proceedings in the Administrative Court - which had given rise to the alleged violations - and those in Strasbourg could be taken into account. They also contested the quantum of the costs, but they were prepared to reimburse a total of ATS 100,000. 59. The Delegate of the Commission left the matter of just satisfaction to the discretion of the Court. 60. Making an assessment on an equitable basis, having regard to the information in its possession and its case-law, the Court awards Mr Gradinger ATS 150,000. | The Court noted in particular that, according to the Regional Court, the aggravating circumstance referred to in Article 81 of the Criminal Code, namely a blood alcohol level of 0.8 grams per litre or higher, was not made out with regard to the applicant. On the other hand, the administrative authorities found, in order to bring the applicant's case within the ambit of section 5 of the Road Traffic Act, that that alcohol level had been attained. The Court was fully aware that the provisions in question differed not only as regards the designation of the offences but also, more importantly, as regards their nature and purpose. It further observed that the offence provided for in section 5 of the Road Traffic Act represented only one aspect of the offence punished under Article 81 of the Criminal Code. Nevertheless, both impugned decisions were based on the same conduct. Accordingly, the Court held that there had been a violation of Article 4 of Protocol No. 7. |
972 | Internet | II. RELEVANT DOMESTIC LAW 23. The relevant provisions of the Fundamental Law read as follows: Article VI “(1) Everyone has the right to have his or her private and family life, home, communications and reputation respected. ...” Article IX “(1) Everyone shall have the right to freely express his or her opinion. (2) Hungary shall recognise and protect the freedom and pluralism of the press, and ensure the conditions for freedom of information necessary for the formation of democratic public opinion.” 24. The Constitutional Court Act provides as follows: Section 27 “Any individual or organisation involved in a case may lodge a constitutional complaint with the Constitutional Court against a court decision which is contrary to the Fundamental Law within the meaning of Article 24 § 2 (d) of the Fundamental Law, if the ruling on the merits or another decision terminating the court proceedings (a) violates the complainant’s rights enshrined in the Fundamental Law, and (b) the complainant has already exhausted the available legal remedies or no legal remedy is available. ...” Section 29 “The Constitutional Court shall admit constitutional complaints if a conflict with the Fundamental Law significantly affects the judicial decision, or the case raises constitutional law issues of fundamental importance. ...” 17. Legal consequences of the decisions of the Constitutional CourtSection 39 “(1) Unless provided for otherwise by this Act, the decisions of the Constitutional Court are binding on everyone. (2) There shall be no remedy against the decisions of the Constitutional Court. (3) The Constitutional Court shall itself establish the applicable legal consequences within the framework of the Fundamental Law and of this Act.” Section 43 “(1) If the Constitutional Court, in the course of proceedings before it as specified in section 27 and on the basis of a constitutional complaint, declares that a judicial decision is contrary to the Fundamental Law, it shall annul the decision. (2) For the procedural legal consequences of the Constitutional Court’s decision annulling a judicial decision, the provisions of the codes on court procedures shall be applicable. (3) In court proceedings following the annulment of a judicial decision by the Constitutional Court, the decision of the Constitutional Court shall be binding as regards the issue of constitutionality. (4) The Constitutional Court, when annulling a judicial decision, may also annul judicial decisions or the decisions of other authorities which were reviewed by the decision in question. ...” 25. Act no. IV of 1959 on the Civil Code, as in force at the material time, provides: Article 75 “(1) Personality rights shall be respected by everyone. Personality rights are protected under this Act. (2) The rules governing the protection of personality rights are also applicable to legal personalities, except in cases where such protection can, owing to its character, only apply to private individuals. (3) Personality rights shall not be violated by conduct to which the holder of rights has given consent, unless such consent violates or endangers an interest of society. In any other case a contract or unilateral declaration restricting personality rights shall be null and void.” Article 78 “(1) The protection of personality rights shall also include the protection of reputation. (2) In particular, the statement or dissemination of an injurious falsehood concerning another person, or the presentation with untrue implications of a true fact relating to another person, shall constitute defamation.” III. RELEVANT INTERNATIONAL LAW AND PRACTICE 26. Recommendation CM/Rec(2007)16 of the Committee of Ministers to member states on measures to promote the public service value of the Internet was summarised as follows in Editorial Board of Pravoye Delo and Shtekel v. Ukraine (no. 33014/05, ECHR 2011 (extracts)): “29. At their 1010th meeting on 7 November 2007 the Ministers’ Deputies considered essential aspects of the use of new information and communication technologies and services, in particular the Internet, in the context of protection and promotion of human rights and fundamental freedoms. They acknowledged the increasingly important role the Internet was playing in providing diverse sources of information to the public and people’s significant reliance on the Internet as a tool for communication. 30. It was noted however that the Internet could, on the one hand, significantly enhance the exercise of human rights and fundamental freedoms, such as the right to freedom of expression, while, on the other hand, the Internet might adversely affect other rights, freedoms and values, such as the respect for private life and secrecy of correspondence and for the dignity of human beings. 31. The Ministers’ Deputies adopted recommendations to the Council of Europe’s member states with regard to the governance of the Internet. These included a recommendation to elaborate a clear legal framework delineating the boundaries of the roles and responsibilities of all key stakeholders in the field of new information and communication technologies and to encourage the private sector to develop open and transparent self- and co-regulation on the basis of which key actors in this field could be held accountable.” 27. Recommendation CM/Rec(2011)7 of the Committee of Ministers to member States on a new notion of media (adopted on 21 September 2011) reads as follows: “... The Committee of Ministers, under the terms of Article 15. b of the Statute of the Council of Europe recommends that member states: – adopt a new, broad notion of media which encompasses all actors involved in the production and dissemination, to potentially large numbers of people, of content (for example information, analysis, comment, opinion, education, culture, art and entertainment in text, audio, visual, audiovisual or other form) and applications which are designed to facilitate interactive mass communication (for example social networks) or other content-based large-scale interactive experiences (for example online games), while retaining (in all these cases) editorial control or oversight of the contents; – review regulatory needs in respect of all actors delivering services or products in the media ecosystem so as to guarantee people’s right to seek, receive and impart information in accordance with Article 10 of the European Convention on Human Rights, and to extend to those actors relevant safeguards against interference that might otherwise have an adverse effect on Article 10 rights, including as regards situations which risk leading to undue self-restraint or self-censorship; – apply the criteria set out in the appendix hereto when considering a graduated and differentiated response for actors falling within the new notion of media based on relevant Council of Europe media-related standards, having regard to their specific functions in the media process and their potential impact and significance in ensuring or enhancing good governance in a democratic society; ... Appendix to Recommendation CM/Rec(2011)7 Criteria for identifying media and guidance for a graduated and differentiated response Introduction 7. A differentiated and graduated approach requires that each actor whose services are identified as media or as an intermediary or auxiliary activity benefit from both the appropriate form (differentiated) and the appropriate level (graduated) of protection and that responsibility also be delimited in conformity with Article 10 of the European Convention on Human Rights and other relevant standards developed by the Council of Europe. ...” 28. The Joint Declaration by the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media and the OAS Special Rapporteur on Freedom of Expression, adopted on 21 December 2005, states the following: “No one should be liable for content on the Internet of which they were not the author, unless they had either adopted that content as their own or refused to obey a court order to remove that content.” 29. In Case C-160/15 GS Media BV v. Sanoma Media Netherlands BV, Playboy Entreprises International Inc., Britt Geertruida Dekker the Court of Justice of the European Union (“the CJEU”) considered whether, and in what circumstances, posting on a website a hyperlink to protected works, which were freely available on another website without the consent of the copyright holder, constituted a “communication to the public” within the meaning of Article 3 § 1 of Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society. The CJEU found: “45. In that regard, it should be noted that the internet is in fact of particular importance to freedom of expression and of information, safeguarded by Article 11 of the Charter, and that hyperlinks contribute to its sound operation as well as to the exchange of opinions and information in that network characterised by the availability of immense amounts of information. ... 47. For the purposes of the individualised assessment of the existence of a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29, it is accordingly necessary, when the posting of a hyperlink to a work freely available on another website is carried out by a person who, in so doing, does not pursue a profit, to take account of the fact that that person does not know and cannot reasonably know, that that work had been published on the internet without the consent of the copyright holder. 48. Indeed, such a person, by making that work available to the public by providing other internet users with direct access to it (see, to that effect, judgment of 13 February 2014, Svensson and Others, C‑466/12, EU:C:2014:76, paragraphs 18 to 23) does not, as a general rule, intervene in full knowledge of the consequences of his conduct in order to give customers access to a work illegally posted on the internet. In addition, where the work in question was already available with unrestricted access on the website to which the hyperlink provides access, all internet users could, in principle, already have access to it even the absence of that intervention. 49. In contrast, where it is established that such a person knew or ought to have known that the hyperlink he posted provides access to a work illegally placed on the internet, for example owing to the fact that he was notified thereof by the copyright holders, it is necessary to consider that the provision of that link constitutes a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29.” 30. In judgment no. 1 BvR 1248/11 of 15 December 2011 the German Federal Constitutional Court pointed out that the provision of a link in an online article was protected under the German Basic Law. The discussion process necessary for the formation of opinion, protected by the Basic Law, included private and public information about third-party statements, and also therefore the purely technical distribution of such statements, regardless of any associated expression of opinion by the distributor itself. The Federal Constitutional Court stressed that by placing a hyperlink leading to another website, the person or organisation doing so did not automatically make the content of the website its own opinion. Lastly, it pointed out that the German Federal Court had correctly balanced the conflicting rights when it had found that the placing of the link did not further encroach on the rights of others (that is to say the claimant’s copyright) since a website with the unlawful content could very easily be found via an Internet search engine anyway. 31. In Crookes v. Newton (2011, SCC 47, [2011] 3.S.C.R. 269) the Supreme Court of Canada considered the issue of whether creating a hyperlink to defamatory material constituted publication of the defamatory statements. It held that a person could not defame someone merely by publishing a hyperlink to a third-party website or document containing defamatory material. It stated, in particular: “Hyperlinks are in essence references, which are fundamentally different from other acts of ‘publication’. Hyperlinks and references both communicate that something exists, but do not themselves communicate its content. ... A hyperlink, by itself should never be seen as ‘publication’ of the content to which it refers. ... Only when the person or organisation doing so presents content from the hyperlinked material in a way that actually repeats the defamatory content, should that content be considered to be ‘published’ by that person or organisation.” 32. On 26 July 2012 the United States Court of Appeals for the Third Circuit held in Philadelphia Newspapers, LLC (No. 11-3257, 2012 U.S. App. LEXIS 15419 (3d Cir. July 26, 2012) (precedential)) “that providing a link on a website to an allegedly defamatory article [was] not republication for purposes of the single publication rule or the statute of limitations”. Rather, the court found that the principles of traditional publication, according to which a mere reference to an article did not republish the material, as long as it did not restate the defamatory statement, were also applicable to Internet publication. It held that “[t]aken together, though a link and reference m[ight] bring readers’ attention to the existence of an article, they d[id] not republish the article”. THE LAW I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 33. The applicant company complained that the rulings of the Hungarian courts establishing objective liability on the part of its Internet news portal for the content it had referred to via a hyperlink had amounted to an infringement of freedom of expression as provided in Article 10 of the Convention, which reads as follows: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” A. Admissibility 34. The Government argued that the applicant company had failed to exhaust domestic remedies since it had not challenged the final judgment before the Constitutional Court. 35. The applicant company argued that it had exhausted all available remedies. 36. The Court notes that on 15 January 2018 the applicant company’s representative submitted to it the Constitutional Court’s decision of 19 December 2017 (no. 3002/2018.(I.10.)AB) (see paragraph 20 above). The Court is therefore satisfied that the applicant company has in fact demonstrated that it availed itself of the remedy alluded to by the Government. 37. The Court accordingly concludes that the applicant company has complied with the obligation to exhaust domestic remedies and that the Government’s objection must be dismissed. It also notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties’ submissions (a) The applicant company 38. The applicant company argued that the interference with its freedom of expression had not been prescribed by law. It submitted that although Article 78 § 2 of the Civil Code had established liability for dissemination of injurious falsehoods, there had been no legislation or case-law stating that hyperlinking was to be considered dissemination of information. 39. In its view, the Hungarian courts’ decisions had failed to account for the specific features of hyperlinks and had applied to its case the standards of more traditional forms of sharing actual content, which had not been reasonably foreseeable. It explained that hyperlinking in itself did not convey or communicate any information but merely pointed to its existence. Furthermore, the standard applied by the domestic courts would have entailed its liability even if the owner of the hyperlinked website had modified the web page to include defamatory material that had originally not been present. 40. The applicant company disputed that the protection of the reputation of a political party could serve as a legitimate aim for the interference. Relying on the Court’s case-law, it maintained that the limits of acceptable public scrutiny were wider in relation to politicians, who had to have a greater degree of tolerance to criticism. 41. In the applicant company’s submission, the interference had not been necessary in a democratic society. It argued that the objective liability standard as applied by the domestic courts had excluded any balancing between the two protected values. Amongst other actions, by the application of the objective liability rule, the domestic courts had not been able to consider whether the applicant company had acted in good or bad faith or what the purpose of the dissemination had been. In any event, the objective liability standard was incompatible with the Court’s case-law. 42. The applicant company argued that had the domestic courts undertaken a proper balancing exercise, they would have concluded that its right to freedom of expression should have prevailed over Jobbik’s right to reputation. 43. Firstly, the hyperlink had appeared in a balanced news report on a matter of public interest. In its view, including the hyperlink in the article in question had been a technique of reporting that the press should remain free to opt for. Moreover, it had been established by the domestic courts that the journalist who had written the article including the hyperlink had acted in accordance with his professional obligations, among other things, by verifying the information available on YouTube. The applicant company also pointed out that Jobbik had had the option of bringing a claim against the author of the comments. Lastly, while providing access to the YouTube video through a hyperlink had not had a significant impact on Jobbik’s reputation, the domestic court judgment finding the applicant company liable for third-party statements had had far-reaching implications for the press when producing online journalistic content. Concerning this latter aspect, the applicant company noted that given the chilling effect caused by automatic liability for defamation based on the use of hyperlinks, journalists and online news portals would refrain from including hyperlinks in their publications, restricting the cross-referential structure of the Internet and users’ access to information. (b) The Government 44. The Government conceded that there had been an interference with the applicant company’s right to freedom of expression, albeit one prescribed by law and pursuing the legitimate aim of the protection of the rights of others. In their view, the authorities had also acted within their margin of appreciation. 45. Firstly, under Article 75 § 1 and Article 78 §§ 1 and 2 of the Civil Code, the statement or dissemination of an injurious falsehood concerning another person, or the presentation with untrue implications of a fact relating to another person, constituted defamation. Furthermore, the protection of the personality rights of others, that is to say the right to reputation, constituted a limit to the right to freedom of expression. 46. The Government were of the opinion that the court judgments against the applicant company could have been avoided had the applicant company acted with due care and had it not published the hyperlink leading to the video recording. The statement by J.Gy. had been expressed in definite terms and could not be viewed as an expression of an opinion but rather as a statement of fact. It had not reflected objective reality and had been capable of negatively affecting society’s opinion of the defendant, and irrespective of the applicant company’s good or bad faith, the dissemination of the statement had infringed the political party’s right to reputation. 47. The Government asserted that publishers of recordings should foresee that they would be held liable for content which they had failed to verify. Otherwise, serious human-rights violations could be committed without any sanctions. In their understanding, distribution of information meant transmitting or communicating information as thought which could infringe the rights of others even if the distributor did not agree with the content of the third-party statement or if he or she wrongfully relied on the veracity of the statement. Reiterating the arguments of the domestic courts, the Government emphasised that making unlawful content accessible in any way constituted distribution of information, for which the distributor should bear objective liability, irrespective of his or her good or bad faith or the seriousness of the infringement of others’ rights. Furthermore, this standard did not entail a limitation of freedom of expression and did not impose an undue burden on publishers. 48. The Government also pointed out that the applicant company was a professionally operated for-profit Internet portal, which could easily have foreseen the legal consequences of making accessible the video-recording in question. It could reasonably have been expected to act with due care and could have removed the hyperlink without any difficulty. 49. Thus, in the Government’s opinion the domestic courts had struck a fair balance between the competing interests of the applicant company and the political party, regard being had in particular to the insignificant consequences of the final judgment for the applicant company in terms of paying the court fees and publishing the relevant parts of the judgment. (c) The third parties 50. Article 19 argued that there was a fundamental difference between the use of a hyperlink to another web page and the publication of the content on the linked web page, since hyperlinks only referred readers to content that had already been published elsewhere. Without hyperlinks, most of the information on the Internet would be difficult or impossible to find and accessibility of information on the Internet would be reduced. Article 19 referred to comparative-law material concerning judicial decisions in Canada, the United Kingdom, Australia and the United States, in particular, showing that hyperlinks alone did not constitute publication but were merely reference tools, similar to footnotes, offering readers the possibility of pursuing further reading of separate publications. Another reason, in the intervener’s opinion, to exclude liability for hyperlinking was that the linked content was liable to change over time without the person who used the hyperlink being made aware of it. Furthermore, in Article 19’s submission, no liability should be imposed unless the person who used the hyperlink was aware that the linked content was unlawful and where the hyperlink was presented in such a way as to expressly endorse the linked content. Lastly the intervener emphasised that holding someone who used a hyperlink liable for third-party content would have the far ‑ reaching consequence that a wide range of groups could be penalised for the content of websites over which they had no control, resulting in a chilling effect limiting Internet users’ access to information. 51. The European Publishers’ Council, the Media Law Resource Center Inc., the Newspaper Association of America, BuzzFeed, Electronic Frontier Foundation, Index on Censorship, Professor Lorna Woods, Dr Richard Danbury and Dr Nicole Stremlau jointly submitted that hyperlinking had a number of public-interest benefits, including facilitating the journalistic process by enabling content to be delivered more swiftly and assisting journalists in reporting in a more concise and readily accessible manner, enabling readers to check for themselves the original sources of the journalistic content and thereby to verify the veracity of the publication. Hyperlinking also promoted diversity within the media and facilitated an informed public debate by allowing information and opinions to be more freely expressed and accessed. In the interveners’ submission, the imposition of strict liability for hyperlinking had a chilling effect, since journalists were not in a position themselves to verify the legality of the content on any linked pages and as a consequence would rather refrain from this reporting technique in favour of a more traditional approach. They also pointed out that in practice hyperlinked content could itself be changed so that it ceased to be lawful by the entity which controlled the relevant web page, for which it would be unreasonable to hold the journalist responsible. The imposition of strict liability did not meet a pressing social need because anyone whose rights had been adversely affected by the placing of unlawful content online would be able to seek adequate protection by suing the person who had placed the unlawful content online and requesting that the injurious content be removed. The interveners accepted that there could be situations where a journalist’s or journalistic organisation’s liability arose, for example when they proclaimed specific unlawful content to be true or when they refused to remove a hyperlink to a web page which had been found by a court judgment to contain a substantial amount of illegal content. 52. Access Now, the Collaboration on International ICT Policy in East and Southern Africa and European Digital Rights in their joint observations submitted that the design of the Internet was premised on the idea of free linking of information. They argued that hyperlinks were not in themselves intended to constitute editorial statements and did not necessarily imply, in particular, that one publication endorsed the other. Hyperlinks merely pointed to other pages or web resources, whose content, conversely, could change after the first hyperlink had been posted. In the interveners’ submission, the imposition of an objective-liability standard was unworkable, requiring individual users to assume that any hyperlink they posted pointed to content they could verify. 53. The Mozilla Foundation and Mozilla Corporation (collectively “Mozilla”) argued that the sole purpose of hyperlinks was to allow readers to navigate to and from information. Hyperlinks were technical and automatic means for users to access information located elsewhere and could not be considered to amount to publication of that information. A restriction on the use of hyperlinks would undermine the very purpose of the World Wide Web to make items of information accessible by linking them to each other. The intervener expressed doubts as to how people would be able to convey information across the countless number of web pages in existence today if hyperlinking could give rise to liability. Without hyperlinks, publishers would have to provide alternative instructions for readers to find more information. 54. The European Information Society Institute submitted that hyperlinks were a primary tool of digital navigation: they allowed immediate access to other texts, unlike traditional citation. They also had an impact on social interactions, which could easily be repressed by restrictions on their use. Hyperlinks contributed to the development of new media, providing greater (a) interactivity between journalists and readers; (b) credibility, by giving context, facts and sources to support the information; (c) transparency, by allowing readers to trace back the reporting and news gathering process; and (d) critical reading, by allowing journalists and readers to compare contrasting sources. Hyperlinks allowed non-editorial decentralised speech that supplemented the watchdog role traditionally associated with the mainstream media. Applying strict liability rules for hyperlinking would inevitably lead to self-censorship. 55. The European Roma Rights Centre maintained that when minorities targeted by hate crimes or hate speech associated those acts with politicians or political parties, they engaged in expression for which Article 10 of the Convention provided a high level of protection. In the intervening NGO’s submission, it was a severe interference with the rights of Roma, especially having regard to the long-term exclusion faced by them, to be prohibited from expressing the link between racist speech and acts and the politicians or political parties they perceived as promoting an environment of racial hatred. Using defamation laws to prevent the Roma minority from articulating the racially motivated practices of political parties would only protect those political parties against the minority group. The intervener also argued that exposing online publishers to liability for the content of linked material would have a chilling effect and unduly burden civil society’s and minorities’ work against racism. 2. The Court’s assessment (a) Whether there has been an interference 56. The Court notes that it was not in dispute between the parties that the applicant company’s freedom of expression guaranteed under Article 10 of the Convention had been interfered with by the domestic courts’ decisions. The Court sees no reason to hold otherwise. 57. Such an interference with the applicant company’s right to freedom of expression must be “prescribed by law”, have one or more legitimate aims within the meaning of paragraph 2 of Article 10, and be “necessary in a democratic society”. (b) Lawfulness 58. In the present case the parties’ opinion differed as to whether the interference with the applicant company’s freedom of expression had been “prescribed by law”. The applicant company argued that it had not been foreseeable under domestic law that the posting of a hyperlink would qualify as dissemination of untrue or defamatory information. The Government referred to Article 75 § 1 and Article 78 §§ 1 and 2 of the Civil Code and argued that the applicant company had been liable for imparting and disseminating private opinions expressed by third parties. 59. The Court reiterates that the expression “prescribed by law” in the second paragraph of Article 10 not only requires that the impugned measure should have a legal basis in domestic law, but also refers to the quality of the law in question, which should be accessible to the person concerned and foreseeable as to its effects. The level of precision required of domestic legislation – which cannot provide for every eventuality – depends to a considerable degree on the content of the law in question, the field it is designed to cover and the number and status of those to whom it is addressed. The Court has found that persons carrying on a professional activity, who are used to having to proceed with a high degree of caution when pursuing their occupation, can on this account be expected to take special care in assessing the risks that such activity entails (see Karácsony and Others v. Hungary [GC], nos. 42461/13 and 44357/13, §§ 123 ‑ 25, ECHR 2016 (extracts), and the cases cited therein). 60. The Court observes that the domestic courts found that the posting of a hyperlink had amounted to the dissemination of defamatory statements and chose to apply Article 78 of the Civil Code. It also notes that there was neither explicit legal regulation nor case-law on the admissibility and limitations of hyperlinks. 61. However, given its conclusion below about the necessity of the interference (see paragraph 84 below), it considers that it is not necessary to decide on the question whether the application of the relevant provisions of the Civil Code to the applicant company’s situation was foreseeable for the purposes of Article 10 § 2 of the Convention. (c) Legitimate aim 62. The Government submitted that the interference had pursued the legitimate aim of protecting the rights of others. The Court accepts this. (d) Necessary in a democratic society (i) General principles 63. The fundamental principles concerning the question of whether an interference with freedom of expression is “necessary in a democratic society” are well established in the Court’s case-law (see Delfi AS v. Estonia [GC], no. 64569/09, § 131, ECHR 2015, and the cases cited therein). 64. The Court reiterates that the safeguard afforded by Article 10 to journalists in relation to reporting on issues of general interest is subject to the proviso that they are acting in good faith and on an accurate factual basis and provide “reliable and precise” information in accordance with the ethics of journalism (see Bédat v. Switzerland [GC], no. 56925/08, § 58, ECHR 2016). In a world in which the individual is confronted with vast quantities of information circulated via traditional and electronic media and involving an ever-growing number of players, monitoring compliance with journalistic ethics takes on added importance (see Stoll v. Switzerland [GC], no. 69698/01, § 104, ECHR 2007 ‑ V). 65. When examining whether there is a need for an interference with freedom of expression in a democratic society in the interests of the “protection of the reputation or rights of others”, the Court may be required to ascertain whether the domestic authorities have struck a fair balance when protecting two values guaranteed by the Convention which may come into conflict with each other in certain cases, namely on the one hand freedom of expression protected by Article 10, and on the other the right to respect for private life enshrined in Article 8 (see Axel Springer AG v. Germany [GC], no. 39954/08, § 84, 7 February 2012, and Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 106, ECHR 2012, and the cases cited therein). 66. As regards the importance of Internet sites in the exercise of freedom of expression, the Court has found that in the light of its accessibility and its capacity to store and communicate vast amounts of information, the Internet has played an important role in enhancing the public’s access to news and facilitating the dissemination of information in general (see Ahmet Yıldırım v. Turkey, no. 3111/10, § 48, ECHR 2012). At the same time, the risk of harm posed by content and communications on the Internet to the exercise and enjoyment of human rights and freedoms, particularly the right to respect for private life, is certainly higher than that posed by the press (see Egill Einarsson v. Iceland, no. 24703/15, § 46, 7 November 2017). Because of the particular nature of the Internet, the “duties and responsibilities” of Internet news portals for the purposes of Article 10 may differ to some degree from those of a traditional publisher, as regards third-party content (see Delfi AS, cited above, § 113). Although Internet news portals are not publishers of third-party comments in the traditional sense, they can assume responsibility under certain circumstances for user-generated content (see Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt v. Hungary, no. 22947/13, § 62, 2 February 2016). 67. Concerning information society service providers (“ISSPs”) which store information provided by a recipient of their services, the Court has indicated in respect of an Article 8 complaint that in line with the standards on international law, ISSPs should not be held responsible for content emanating from third parties unless they failed to act expeditiously in removing or disabling access to it once they became aware of its illegality (see Tamiz v. the United Kingdom (dec.), no. 3877/14, 19 September 2017). 68. Lastly, the Court has held that the policies governing reproduction of material from the printed media and the Internet may differ. The latter undeniably have to be adjusted according to technology’s specific features in order to secure the protection and promotion of the rights and freedoms concerned (see Editorial Board of Pravoye Delo and Shtekel v. Ukraine, no. 33014/05, § 63, ECHR 2011 (extracts)). The absence of a sufficient legal framework at the domestic level allowing journalists to use information obtained from the Internet without fear of incurring sanctions seriously hinders the exercise of the vital function of the press as a “public watchdog” (ibid., § 64). (ii) Application of those principles to the present case 69. The Court considers that the present case concerns the “duties and responsibilities” of an Internet news portal, for the purposes of Article 10 of the Convention, in the particular situation where in an online article it included a hyperlink leading to content, available on the Internet, which was later held to be defamatory. The domestic courts found that the posting of such a hyperlink automatically qualified as the publication of the defamatory statement, which finding entailed the objective liability of the journalist and the news portal run by the applicant company. The question before the Court is therefore whether the ensuing interference with the applicant company’s rights under Article 10 of the Convention was, in the particular circumstances, based on relevant and sufficient reasons and consequently necessary in a democratic society. 70. The Court observes that the Internet news portal in question is professionally run, publishes some seventy-five articles on a wide range of topics every day, and attracts a daily readership of about 250,000. 71. The Court notes that the practice of the domestic courts exempted publishers from civil liability for reproduction of statements made at press conferences, provided that they reported on a matter of public interest in an unbiased and objective manner, distinguished themselves from the source of the statement and gave an opportunity to the person concerned to comment on the statement (see paragraph 21 above). However, no such immunity existed for the dissemination of false or defamatory information falling outside the scope of press conferences, where the standard of objective liability applied, irrespective of the question of whether the author or publisher acted in good or bad faith and in compliance with their journalistic duties and obligations. 72. The Court reiterates that it has previously noted with approval that the differentiation as regards third ‑ party content between an Internet news portal operator and a traditional publisher was in line with the international instruments in this field, which manifested a certain development in favour of distinguishing between the legal principles regulating the activities of the traditional print and audiovisual media on the one hand and Internet ‑ based media operations on the other (see Delfi AS, cited above, §§ 112-13). 73. Furthermore, bearing in mind the role of the Internet in enhancing the public’s access to news and information, the Court points out that the very purpose of hyperlinks is, by directing to other pages and web resources, to allow Internet users to navigate to and from material in a network characterised by the availability of an immense amount of information. Hyperlinks contribute to the smooth operation of the Internet by making information accessible through linking it to each other. 74. Hyperlinks, as a technique of reporting, are essentially different from traditional acts of publication in that, as a general rule, they merely direct users to content available elsewhere on the Internet. They do not present the linked statements to the audience or communicate its content, but only serve to call readers’ attention to the existence of material on another website. 75. A further distinguishing feature of hyperlinks, compared to acts of dissemination of information, is that the person referring to information through a hyperlink does not exercise control over the content of the website to which a hyperlink enables access, and which might be changed after the creation of the link – a natural exception being if the hyperlink points to content controlled by the same person. Additionally, the content behind the hyperlink has already been made available by the initial publisher on the website to which it leads, providing unrestricted access to the public. 76. Consequently, given the particularities of hyperlinks, the Court cannot agree with the domestic courts’ approach equating the mere posting of a hyperlink with the dissemination of defamatory information, automatically entailing liability for the content itself. Instead, it considers that the issue of whether the posting of a hyperlink may justifiably, from the perspective of Article 10, give rise to such liability requires an individual assessment in each case, regard being had to a number of elements. 77. The Court identifies in particular the following aspects as relevant for its analysis of the liability of the applicant company as publisher of a hyperlink: (i) did the journalist endorse the impugned content; (ii) did the journalist repeat the impugned content (without endorsing it); (iii) did the journalist merely include a hyperlink to the impugned content (without endorsing or repeating it); (iv) did the journalist know or could he or she reasonably have known that the impugned content was defamatory or otherwise unlawful; (v) did the journalist act in good faith, respect the ethics of journalism and perform the due diligence expected in responsible journalism? 78. In the present case the Court notes that the article in question simply mentioned that an interview conducted with J.Gy. was to be found on YouTube and provided a means to access it through a hyperlink, without further comments on, or repetition even of parts of, the linked interview itself. No mention was made of the political party at all. 79. The Court observes that nowhere in the article did the author imply in any way that the statements accessible through the hyperlink were true or that he approved of the hyperlinked material or accepted responsibility for it. Neither did he use the hyperlink in a context that, in itself, conveyed a defamatory meaning. It can thus be concluded that the impugned article did not amount to an endorsement of the impugned content. 80. In connection with the question of repetition, the Court reiterates that “punishment of a journalist for assisting in the dissemination of statements made by another person in an interview would seriously hamper the contribution of the press to discussion of matters of public interest and should not be envisaged unless there are particularly strong reasons for doing so” (see Jersild v. Denmark, 23 September 1994, § 35, Series A no. 298; Thoma v. Luxembourg, no. 38432/97, § 62, ECHR 2001 ‑ III § 62; and Novaya Gazeta and Milashina v. Russia, no. 45083/06, § 71, 3 October 2017). A general requirement for journalists systematically and formally to distance themselves from the content of a quotation that might insult or provoke others or damage their reputation is not reconcilable with the press’s role of providing information on current events, opinions and ideas (see Thoma, cited above § 64). With these principles in mind, the Court would not rule out the possibility that, in certain particular constellations of circumstances, even the mere repetition of a statement, for example in addition to a hyperlink, may potentially engage the question of liability. This could include situations where a journalist does not act in good faith in accordance with the ethics of journalism and with the diligence expected in responsible journalism dealing with a matter of public interest (see in this respect, for example, Novaya Gazeta and Milashina, cited above, § 72). However, this was not the case in the present application, where, as observed above, the article in question repeated none of the defamatory statements, and the publication was indeed limited to posting the hyperlink. 81. As to whether the journalist and the applicant company knew or could reasonably have known that the hyperlink provided access to defamatory or otherwise unlawful content, the Court notes at the outset that the domestic courts, with the exception of the first-instance court, did not find this aspect relevant, and therefore did not examine it. The Court also considers that this issue must be determined in the light of the situation as it presented itself to the author at the material time, rather than with the benefit of hindsight on the basis of the findings of the domestic courts’ judgments. At this juncture, the Court reiterates that an attack on personal honour and reputation must attain a certain level of seriousness and must have been carried out in a manner causing prejudice to the personal enjoyment of the right to respect for private life (see Delfi AS, cited above, § 137, and Axel Springer AG, cited above, § 83). Furthermore, the limits of acceptable criticism are wider as regards a politician – or a political party – as such than as regards a private individual. Unlike private individuals, politicians and political parties inevitably and knowingly lay themselves open to close scrutiny of their every word and deed by both journalists and the public at large, and must consequently display a greater degree of tolerance (see Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 46, ECHR 2007 ‑ IV). 82. Relying on these principles, the Court considers that the journalist in the present case could reasonably have assumed that the content to which he provided access, although perhaps controversial, would remain within the realm of permissible criticism of political parties and, as such, would not be unlawful. Although the statements by J.Gy. were ultimately found to be defamatory because they implied, without a factual basis, that persons associated with Jobbik had committed acts of a racist nature, the Court is satisfied that such utterances could not be seen as clearly unlawful from the outset (contrast Delfi AS, cited above, §§ 136 and 140). 83. Furthermore, it must be noted that the relevant Hungarian law, as interpreted by the competent domestic courts, excluded any meaningful assessment of the applicant company’s freedom-of-expression rights under Article 10 of the Convention, in a situation where restrictions would have required the utmost scrutiny, given the debate on a matter of general interest. Indeed, the courts held that the hyperlinking amounted to dissemination of information and imposed objective liability – a course of action that effectively precluded any balancing between the competing rights, that is to say, the right to reputation of the political party and the right to freedom of expression of the applicant company (see, mutatis mutandis, Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt, cited above, § 89). In the Court’s view, such objective liability may have foreseeable negative consequences on the flow of information on the Internet, impelling article authors and publishers to refrain altogether from hyperlinking to material over whose changeable content they have no control. This may have, directly or indirectly, a chilling effect on freedom of expression on the Internet. 84. Based on the above, the Court finds that the domestic courts’ imposition of objective liability on the applicant company was not based on relevant and sufficient grounds. Therefore, the measure constituted a disproportionate restriction on its right to freedom of expression. 85. Accordingly, there has been a violation of Article 10 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 86. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 87. The applicant company did not submit any claim in respect of non-pecuniary damage. However, it claimed 597.04 euros (EUR) in respect of pecuniary damage. This sum corresponded to the amount which the applicant company had been ordered to pay in respect of court fees and to the plaintiff political party in respect of the latter’s legal costs in the domestic proceedings. 88. The Government contested this claim. 89. The Court accepts that there is a causal link between the violation found and the pecuniary damage alleged; it therefore awards the sum claimed in full. B. Costs and expenses 90. The applicant company also claimed EUR 1,792.20 for the costs and expenses incurred before the domestic courts, which comprised EUR 1,451.91 for lawyers’ fees amounting to 100 hours at an hourly rate of 16 United States dollars (USD), and EUR 340.29 for lawyers’ fees amounting to fifteen hours at an hourly rate of USD 25. The applicant company also claimed EUR 2,357.19 for costs and expenses incurred before the Court, which comprised EUR 2,060 for translation costs and EUR 297.19 for organisational costs. The applicant company’s total claim for costs and expenses came to EUR 4,149.39. 91. The Government contested these claims. 92. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 4,149.39 covering costs under all heads. C. Default interest 93. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 10 (freedom of expression) of the Convention. It underscored in particular the importance of hyperlinking for the smooth operation of the Internet and distinguished the use of hyperlinks from traditional publishing – hyperlinks directed people to available material rather than provided content. Updating its case-law on these issues, the Court set down elements which need to be considered under Article 10 when looking at whether posting a hyperlink could lead to liability and said that an individual assessment was necessary in each case. In the present case, the Court found that the Hungarian domestic law on objective (strict) liability for disseminating defamatory material had excluded the possibility of any meaningful assessment of the applicant company’s right to freedom of expression in a situation where the courts should have scrutinised the issue carefully. Such objective liability for using a hyperlink could undermine the flow of information on the Internet, dissuading article authors and publishers from using such links if they could not control the information they led to. That could have a chilling effect on freedom of expression on the Internet. The Court therefore found that, overall, the applicant company had suffered an undue restriction of its rights. |
549 | Discriminatory statements or publications | II. RELEVANT DOMESTIC LAW A. Civil Code 35. Article 24 of the Civil Code reads as follows: “Any person whose personal rights are unlawfully infringed may apply to a judge for protection against all those causing the infringement. An infringement is unlawful unless it is justified by the consent of the person whose rights have been infringed or is made necessary by an overriding private or public interest or by law.” Furthermore, according to Article 25 of the Civil Code: “A claimant may ask a judge to prevent a threat of infringement, to order the cessation of an ongoing infringement or to establish the unlawfulness of such an infringement even where it has already ceased. In addition to such action the claimant may also request that the rectification or the judgment be published or served on third parties. ...” B. Criminal Code 36. Article 312 § 2 of the former Criminal Code provided as follows: “Any person who incites others to hatred or hostility on the basis of a distinction between social class, race, religion, denomination or region shall, on conviction, be liable to between one and three years’ imprisonment and to a fine of between nine thousand and thirty-six thousand liras. If this incitement endangers public safety, the sentence shall be increased by between one third and one half.” 37. On 1 June 2005 a new Criminal Code (Law no. 5237) came into force. Article 216 of the new Code provides as follows: “1. Any person who publicly provokes hatred or hostility in one section of the public against another section with different characteristics based on social class, race, religion, sect or regional differences, such as to create a clear and close danger to public safety, shall be sentenced to a term of imprisonment of one to three years. 2. Any person who publicly denigrates a section of the public on grounds of social class, race, religion, sect, gender or regional differences shall be sentenced to a term of imprisonment of six months to one year. ...” THE LAW ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 40. The applicant alleged that the book The Gypsies of Turkey and the dictionaries referred to in paragraphs 26 to 28 above contained expressions and definitions which offended his Roma/Gypsy identity. 41. The Government disputed this claim. A. As to whether the applications should be examined under Article 8 or under Article 14 of the Convention taken in conjunction with Article 8 42. The Grand Chamber observes that the Chamber examined the applicant’s complaints under Article 14 of the Convention taken in conjunction with Article 8. These provisions read as follows: Article 8 “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” Article 14 “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” 43. The Grand Chamber reiterates that the Court is the master of the characterisation to be given in domestic law to the facts of the case and is not bound by the characterisation given by the applicant or the Government (see Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 54, 17 September 2009). Discrimination for the purposes of Article 14 of the Convention means treating differently, without an objective and reasonable justification, persons in relevantly similar situations. There will be no objective and reasonable justification if the difference in treatment does not pursue a “legitimate aim” or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised (see, amongst many other authorities, D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 175, ECHR 2007 ‑ IV, and Burden v. the United Kingdom [GC], no. 13378/05, § 60, ECHR 2008). 44. The Court observes that discrimination on account of, inter alia, a person’s ethnic origin is a form of racial discrimination. Racial discrimination is a particularly invidious kind of discrimination and, in view of its perilous consequences, requires from the authorities special vigilance and a vigorous reaction. It is for this reason that the authorities must use all available means to combat racism, thereby reinforcing democracy’s vision of a society in which diversity is not perceived as a threat but as a source of enrichment (see Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 145, ECHR 2005 ‑ VII, and Timishev v. Russia, nos. 55762/00 and 55974/00, § 56, ECHR 2005 ‑ XII). The Court further notes that as a result of their turbulent history and constant uprooting the Roma have become a specific type of disadvantaged and vulnerable minority. As the Court has noted in previous cases, they therefore require special protection (see D.H. and Others, cited above, § 182). 45. The Court observes that in the present case the applicant, who is of Roma origin, argued that a book and two dictionaries that had received government funding included remarks and expressions that reflected anti-Roma sentiment. He considered that these statements constituted an attack on his Roma identity. However, the Court observes that the case does not concern a difference in treatment, and in particular ethnic discrimination, as the applicant has not succeeded in producing prima facie evidence that the impugned publications had a discriminatory intent or effect. The case is therefore not comparable to other applications previously lodged by members of the Roma community (see, regarding education, ibid., §§ 175 ‑ 210; regarding housing, Chapman v. the United Kingdom [GC], no. 27238/95, § 73, ECHR 2001 ‑ I; and, regarding elections, Sejdić and Finci v. Bosnia and Herzegovina [GC], nos. 27996/06 and 34836/06, § 45, ECHR 2009). Accordingly, the main issue in the present case is whether the impugned publications, which allegedly contained racial insults, constituted interference with the applicant’s right to respect for his private life and, if so, whether this interference was compatible with the said right. The Court will therefore examine the present case under Article 8 of the Convention only. B. The Government’s preliminary objection 1. The parties’ submissions (a) The Government 46. The Government contested the applicant’s victim status in both applications, arguing that they were actio popularis applications. According to the Government, the applicant had failed to show that he had been directly affected by the impugned remarks and expressions. (b) The applicant 47. The applicant alleged that because of his Roma/Gypsy origins, the debasing remarks and expressions contained in the book and dictionaries had caused him pecuniary and non-pecuniary damage. He therefore considered himself to have victim status under Article 34 of the Convention. (c) The third party 48. The Greek Helsinki Monitor stated that any member of an ethnic group allegedly targeted by generally discriminatory expressions based on race had the status of victim, as such expressions created prejudice against every member of that group. They further stated that the Court’s protection should be no less than that afforded under the domestic system: where a person’s victim status had been recognised domestically, it should not be refused by the Court. 2. The Chamber judgment 49. The Chamber observed that although the applicant had not been directly targeted in person in either the book or the dictionaries in question, he had been able to initiate compensation proceedings and to argue the merits of his case before the domestic courts under the domestic legislation, namely Articles 24 and 25 of the Civil Code (see paragraph 35 above). As a result, the Chamber considered that the applicant had victim status under Article 34 of the Convention. 3. The Court’s assessment 50. The Court reiterates that in order to be able to lodge a petition by virtue of Article 34 of the Convention, a person, non-governmental organisation or group of individuals must be able to claim to be a victim of a violation of the rights set forth in the Convention. To claim to be a victim of such a violation, a person must be directly affected by the impugned measure: the Convention does not, therefore, envisage the bringing of an actio popularis for the interpretation of the rights set out therein or permit individuals to complain about a provision of national law simply because they consider, without having been directly affected by it, that it may contravene the Convention (see Burden, cited above, § 33, and Tănase v. Moldova [GC], no. 7/08, § 104, ECHR 2010). 51. Consequently, the existence of a victim who was personally affected by an alleged violation of a Convention right is indispensable for putting the protection mechanism of the Convention into motion, although this criterion is not to be applied in a rigid and inflexible way (see Bitenc v. Slovenia (dec.), no. 32963/02, 18 March 2008). The question of whether the applicant can claim to be a victim of the alleged violation of the Convention is relevant at all stages of the proceedings under the Convention (see Burdov v. Russia, no. 59498/00, § 30, ECHR 2002 ‑ III). 52. The Court reiterates that it interprets the concept of “victim” autonomously and irrespective of domestic concepts such as those concerning an interest or capacity to act (see Sanles Sanles v. Spain (dec.), no. 48335/99, ECHR 2000 ‑ XI), even though the Court should have regard to the fact that an applicant was a party to the domestic proceedings (see Micallef v. Malta [GC], no. 17056/06, § 48, ECHR 2009). 53. The Court observes that in the present case the applicant, who is of Roma origin, complained about remarks and expressions which allegedly debased the Roma community. It is true that the applicant was not personally targeted; he could, however, have felt offended by the remarks concerning the ethnic group to which he belonged. Furthermore, there was no dispute in the domestic proceedings regarding the applicant’s standing before the court. Hence, the merits of his case were examined at two levels of jurisdiction. 54. In view of the foregoing and given the need to apply the criteria governing victim status in a flexible manner, the Court accepts that the applicant, although not directly targeted by the contested passages, can be considered a victim of the facts complained of within the meaning of Article 34 of the Convention. It therefore rejects the Government’s preliminary objection that the applicant lacked victim status. C. The merits of the case 1. Application no. 4149/04 (a) The parties’ submissions (i) The applicant 55. The applicant alleged that certain passages of the book The Gypsies of Turkey contained remarks and expressions which debased the Roma community. In particular, he referred to the chapter of the book which provided information about the lifestyle of the Roma people living in certain cities in Turkey, and in particular their alleged involvement in illegal activities (see paragraph 12 above). According to the applicant, the author’s overall intention was not important, as these passages in themselves constituted a clear insult to the Roma community. He also expressed his dissatisfaction with the domestic court decisions dismissing his compensation request. (ii) The Government 56. The Government stated that the book had been published by the Ministry of Culture on the recommendation of the publications advisory board. According to the report of the advisory board, the book in question was a piece of comparative academic research which had been prepared as a contribution to ethnic studies in Turkey. It gave information about the origins of the Roma community, their language, traditions, beliefs, festivals, cuisine, clothing, music and living conditions. The Government stated that, following the applicant’s objection, the book had been examined once again by a number of university professors, who reported that it did not include any insulting statements. Finally, the Government submitted that the Ministry of Culture was working hard to promote Roma culture and traditions. (b) The Chamber judgment 57. The Chamber held that although the passages and remarks cited by the applicant, read on their own, appeared to be discriminatory and insulting, when the book was examined as a whole it was not possible to conclude that the author had acted in bad faith or had any intention to insult the Roma community. The Chamber had particular regard to the conclusion to the book, in which the author had made it clear that The Gypsies of Turkey was an academic study which conducted a comparative analysis and focused on the history and socio-economic living conditions of the Roma people in Turkey. The Chamber concluded that the author had referred to the biased portrayal of the Roma in order to demonstrate the perception of the Roma community by the public. As a result, the Chamber found no violation of the applicant’s rights as protected by the Convention. (c) The Court’s assessment (i) Applicability of Article 8 of the Convention 58. The Court reiterates that the notion of “private life” within the meaning of Article 8 of the Convention is a broad term not susceptible to exhaustive definition. The notion of personal autonomy is an important principle underlying the interpretation of the guarantees provided for by Article 8. It can therefore embrace multiple aspects of the person’s physical and social identity. The Court further reiterates that it has accepted in the past that an individual’s ethnic identity must be regarded as another such element (see S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 66, ECHR 2008, and Ciubotaru v. Moldova, no. 27138/04, § 49, 27 April 2010). In particular, any negative stereotyping of a group, when it reaches a certain level, is capable of impacting on the group’s sense of identity and the feelings of self-worth and self-confidence of members of the group. It is in this sense that it can be seen as affecting the private life of members of the group. 59. Furthermore, while the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this negative undertaking there may be positive obligations inherent in the effective respect for private life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves (see Tavlı v. Turkey, no. 11449/02, § 28, 9 November 2006, and Ciubotaru, cited above, § 50). 60. Turning to the circumstances of the present case, the Court notes that the applicant, who is of Roma origin, felt offended by certain passages of the book The Gypsies of Turkey, which focused on the Roma community. He therefore initiated civil proceedings against the author of the book and the Ministry of Culture (see paragraphs 19-25 above). As a result, what is at stake in the present case is a publication allegedly affecting the identity of a group to which the applicant belonged, and thus his private life. The Court further notes that although The Gypsies of Turkey was published by the Ministry of Culture (see paragraph 10 above), the latter subsequently returned the copyright to the author of the book (see paragraph 17 above). Moreover, the applicant did not lodge an appeal against the decision of the Ankara Administrative Court dismissing his administrative complaint against the Ministry of Culture (see paragraph 25 above). He therefore did not pursue his case against the State authorities for their involvement in the publication in issue. 61. Under these circumstances, the Court is of the opinion that the main question raised in the present application is not whether there was direct interference by the domestic authorities with the private life of the applicant, but rather whether the Government complied with their positive obligation under Article 8 to protect the applicant’s private life from alleged interference by a third party, namely the author of the book. In other words the Court will seek to ascertain whether, in the light of Article 8 of the Convention, the Turkish courts ought to have upheld the applicant’s civil claim by awarding him a sum in respect of non-pecuniary damage and banning the distribution of the book. (ii) Compliance with Article 8 of the Convention (α) General principles 62. The boundary between the State’s positive and negative obligations under Article 8 does not lend itself to precise definition. The applicable principles are, nonetheless, similar. In both contexts, regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation (see, amongst many other authorities, Keegan v. Ireland, 26 May 1994, § 49, Series A no. 290; Botta v. Italy, 24 February 1998, § 33, Reports of Judgments and Decisions 1998 ‑ I; and Gurgenidze v. Georgia, no. 71678/01, § 38, 17 October 2006). 63. In cases like the present one where the complaint is that rights protected under Article 8 have been breached as a consequence of the exercise by others of their right to freedom of expression, due regard should be had, when applying Article 8, to the requirements of Article 10 of the Convention (see, for instance and mutatis mutandis, Von Hannover v. Germany, no. 59320/00, § 58, ECHR 2004 ‑ VI). Thus, in such cases the Court will need to balance the applicant’s right to “respect for his private life” against the public interest in protecting freedom of expression, bearing in mind that no hierarchical relationship exists between the rights guaranteed by the two Articles (see Timciuc v. Romania (dec.), no. 28999/03, § 144, 12 October 2010). 64. In this context the Court reiterates that freedom of expression constitutes one of the essential foundations of a democratic society. Subject to paragraph 2 of Article 10 of the Convention, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no democratic society (see, amongst many authorities, Handyside v. the United Kingdom, 7 December 1976, § 49, Series A no. 24, and Reinboth and Others v. Finland, no. 30865/08, § 74, 25 January 2011). This freedom is subject to the exceptions set out in Article 10 § 2 which must, however, be strictly construed. The need for any restrictions must therefore be established convincingly (see, for example, Lingens v. Austria, 8 July 1986, § 41, Series A no. 103, and Nilsen and Johnsen v. Norway [GC], no. 23118/93, § 43, ECHR 1999 ‑ VIII). 65. Under Article 10 of the Convention, the Contracting States have a certain margin of appreciation in assessing whether an interference with the right to freedom of expression was “necessary in a democratic society”. However, this margin goes hand in hand with a European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court (see Tammer v. Estonia, no. 41205/98, § 60, ECHR 2001 ‑ I; Peck v. the United Kingdom, no. 44647/98, § 77, ECHR 2003 ‑ I; and Karhuvaara and Iltalehti v. Finland, no. 53678/00, § 38, ECHR 2004 ‑ X). The Court’s task in exercising its supervision is not to take the place of the national authorities but rather to review, in the light of the case as a whole, the decisions that they have taken pursuant to their margin of appreciation (see Petrenco v. Moldova, no. 20928/05, § 54, 30 March 2010; Polanco Torres and Movilla Polanco v. Spain, no. 34147/06, § 41, 21 September 2010; and Petrov v. Bulgaria (dec.), no. 27103/04, 2 November 2010). 66. In similar cases the Court therefore attached significant weight to the fact that the domestic authorities had identified the existence of conflicting rights and the need to ensure a fair balance between them (see, for instance and mutatis mutandis, Tammer, cited above, § 69; White v. Sweden, no. 42435/02, § 27, 19 September 2006; Standard Verlags GmbH v. Austria (no. 2), no. 21277/05, § 52, 4 June 2009; Lappalainen v. Finland (dec.), no. 22175/06, 20 January 2009; and Papaianopol v. Romania, no. 17590/02, § 30, 16 March 2010). 67. If the balance struck by the national judicial authorities is unsatisfactory, in particular because the importance or the scope of one of the fundamental rights at stake was not duly considered, the margin of appreciation accorded to the decisions of the national courts will be a narrow one. However, if the assessment was made in the light of the principles resulting from its well-established case-law, the Court would require strong reasons to substitute its own view for that of the domestic courts, which consequently will enjoy a wider margin of appreciation (see MGN Limited v. the United Kingdom, no. 39401/04, §§ 150 and 155, 18 January 2011, and Von Hannover v. Germany (no. 2 ) [GC], nos. 40660/08 and 60641/08, § 107, ECHR 2012). 68. All of this presupposes that an effective legal system was in place and operating for the protection of the rights falling within the notion of “private life”, and was available to the applicant (see Karakó v. Hungary, no. 39311/05, § 19, 28 April 2009). This must also be examined by the Court. (β) Application of these principles to the present case 69. In the present case the domestic courts were called upon to strike a fair balance between the applicant’s rights under Article 8 of the Convention as a member of the Roma community and the freedom of the author of the book in issue to carry out academic/scientific research on a specific ethnic group and publish his findings. The applicant claimed that the book, and in particular the chapter providing information about the living conditions of Roma in different cities of Turkey, constituted an insult towards the Roma community. In dismissing this claim at two levels of jurisdiction the Turkish courts relied, inter alia, on a report prepared by seven university professors which found that the book in dispute was an academic study based on scientific research (see paragraph 25 above). They considered that the remarks and expressions were not insulting, were of a general nature, did not concern all Roma and did not constitute an attack on the applicant’s identity (see paragraphs 21 and 23 above). Moreover, the Ankara Civil Court of General Jurisdiction found that the book examined the social structure of the Turkish Roma/Gypsy community and was based on scientific data (see paragraph 21 above). 70. In the Court’s opinion, these conclusions cannot be considered to be unreasonable or based on a misrepresentation of the relevant facts. In this connection it is important to note, that while the author pointed to certain illegal activities on the part of some members of the Roma community living in particular areas, nowhere in the book did he make negative remarks about the Roma population in general or claim that all members of the Roma community were engaged in illegal activities. Furthermore, in different parts of the book, namely in the preface, introduction and conclusion, the author emphasised in clear terms that his intention was to shed light on the unknown world of the Roma community in Turkey, who had been ostracised and targeted by vilifying remarks based mainly on prejudice (see paragraphs 10-11 and 13 above). In view of the foregoing, and in the absence of any evidence justifying the conclusion that the author’s statements were insincere, it was not unreasonable for the domestic courts to hold that he had put effort into his work and had not been driven by racist intentions (see, mutatis mutandis, Jersild v. Denmark, 23 September 1994, § 36, Series A no. 298). 71. Moreover, despite the somewhat laconic manner in which some of them were expressed, the reasons put forward by the domestic courts in support of their conclusions were in keeping with the principles set forth in the Court’s case-law. In particular, the Turkish courts attached importance to the fact that the book had been written by an academic and was therefore to be considered as an academic work. In recent judgments, the Court has also stressed the importance of such works (see Sorguç v. Turkey, no. 17089/03, §§ 21-35, 23 June 2009, and Sapan v. Turkey, no. 44102/04, § 34, 8 June 2010). It is therefore consistent with the Court’s case-law to submit to careful scrutiny any restrictions on the freedom of academics to carry out research and to publish their findings. 72. It is also in line with the Court’s approach to consider the impugned passages not in isolation but in the context of the book as a whole and to take into account the method of research used by the author of the publication. In this connection the Court observes that the latter explained that he had collected information from members of the Roma community, local authorities and the police. He also stated that he had lived with the Roma community to observe their lifestyle according to scientific observation principles (see paragraph 11 above). 73. Moreover, it is to be noted that an effective legal system was operating for the protection of the rights falling within the notion of “private life” and was available to the applicant in the present case (see paragraph 68 above). The applicant was able to bring his case before two levels of jurisdiction and obtained reasoned decisions dealing with his claim. Furthermore, when he lodged a complaint with the Ministry of Culture, as a precautionary measure the Ministry ordered the withdrawal of the remaining 299 copies of the book, and the copyright was returned to the author at the latter’s request (see paragraphs 15 and 17 above). 74. In the light of the above, the Court is satisfied that in balancing the conflicting fundamental rights under Articles 8 and 10 of the Convention, the Turkish courts made an assessment based on the principles resulting from the Court’s well-established case-law. 75. The Court would nonetheless reiterate that the vulnerable position of Roma/Gypsies means that special consideration should be given to their needs and their different lifestyle, both in the relevant regulatory framework and in reaching decisions in particular cases (see Chapman, cited above, § 96, and D.H. and Others, cited above, § 181). The Court also agrees with the conclusions of ECRI (see paragraph 38 above) that the Government should pursue their efforts to combat negative stereotyping of the Roma. 76. It follows from the considerations set forth above that in the present case the Turkish authorities did not overstep their margin of appreciation and did not disregard their positive obligation to secure to the applicant effective respect for his private life. 77. Consequently, there has been no violation of Article 8 in respect of application no. 4149/04. 2. Application no. 41029/04 (a) The parties’ submissions (i) The applicant 78. The applicant alleged that the expressions contained in the two impugned dictionaries printed by the Turkish Language Association were insulting towards the Roma/Gypsy community. In particular, he referred to the term “becoming a Gypsy” which was defined as “displaying miserly behaviour”, and submitted that such insulting definitions should be removed from the dictionaries. (ii) The Government 79. The Government stated that the words and expressions contained in the dictionaries were based on historical and sociological facts and that there was no intention to debase the Roma community. They further informed the Court that the Ministry of Culture had made a financial contribution of 2,700 euros in total to the publication of the dictionaries in 1991 and 1998. However, the Government stressed that the dictionary for pupils was not a school textbook and that it was not distributed to schools or recommended by the Ministry of Education as part of the school curriculum. Finally, they pointed out that these dictionaries had not been reprinted and were actually out of print. (b) The Chamber judgment 80. The Chamber had regard in particular to the fact that the definitions provided in the dictionaries had been prefaced with the comment that their use was “metaphorical”. It therefore found that these expressions could not be considered as harming the applicant’s ethnic identity. As a result, the Chamber found no violation of Article 8 of the Convention. (c) The Court’s assessment 81. The Court notes at the outset that the applicant considered himself to be the victim of negative stereotyping on account of some of the entries contained in the impugned dictionaries. Article 8 of the Convention is therefore applicable, for the reasons set forth in paragraph 60 above. The Court further observes that, although the publication of the dictionaries in issue was part-financed by the Ministry of Culture, the applicant merely brought a civil action against the Language Association, a non-governmental organisation, and did not bring any administrative proceedings against the Ministry in the domestic courts (see paragraphs 31 ‑ 34 above). Therefore, as with application no. 4149/04 (see paragraphs 60-61 above), the Court will examine, in the light of the general principles set forth in paragraphs 62 to 68 above, whether the Government complied with their positive obligation under Article 8 to protect the applicant’s private life from alleged interference by a third party, namely the Language Association. 82. In rejecting the applicant’s claim, the Ankara Civil Court observed that the definitions and expressions in the dictionaries were based on historical and sociological reality and that there had been no intention to humiliate or debase the Roma community. It further noted that there were similar expressions in Turkish concerning other ethnic groups, which appeared in dictionaries and encyclopaedias (see paragraph 33 above). 83. Thus, the domestic court examined the impugned entries in order to ascertain whether they had unlawfully interfered with the applicant’s rights under Article 8 of the Convention. In doing so, it applied the principles laid down in the Court’s case-law (see paragraph 66 above). 84. In this connection the Court observes that a dictionary is a source of information which lists the words of a language and gives their various meanings, the basic one being simply descriptive or literal, while others may be figurative, allegorical or metaphorical. It reflects the language used by society. In both dictionaries the literal definition of the word “ çingene ” (“Gypsy”) was given on page 279. It is therefore clear that these dictionaries were substantial in volume and were meant to cover the entire Turkish language. The Court also notes the first definition of the word “Gypsy” given by the said dictionaries, which reads: “[A]n ethnic group or person belonging to an ethnic group originating from India, whose members lead a nomadic way of life and are widely dispersed in the world.” As a second meaning, it was stated that, in the metaphorical sense, the word “Gypsy” also meant “miserly” (see paragraph 28 above). On the same page, the dictionaries gave further definitions of certain expressions regarding the Gypsies, such as “Gypsy money” and “Gypsy pink”. The Court notes in this connection that, as explained by the Ankara Civil Court, these expressions are part of spoken Turkish. 85. It is true that, although they had the same content, the dictionaries had different target groups, as the second dictionary’s title was Turkish Dictionary for Pupils. It is clear that in a dictionary aimed at pupils, more diligence is required when giving the definitions of expressions which are part of daily language but which might be construed as humiliating or insulting. In the Court’s view, it would have been preferable to label such expressions as “pejorative” or “insulting”, rather than merely stating that they were metaphorical. Such a precaution would also be in line with ECRI’s General Policy Recommendation No. 10, which stipulates that States should “[promote] critical thinking among pupils and [equip] them with the necessary skills to become aware of and react to stereotypes or intolerant elements contained in [the] material they use” (see paragraph 39 above). 86. However, this element alone is insufficient for the Court to substitute its own view for that of the domestic courts, having regard also to the fact that the impugned dictionary was not a school textbook and that it was not distributed to schools or recommended by the Ministry of Education as part of the school curriculum (see paragraph 79 above). 87. Finally, the Court observes that the applicant’s case against the Language Association was examined at two levels of jurisdiction in the domestic courts (see paragraphs 31-34 above). Although ultimately his case was dismissed, the Court is satisfied that the applicant was provided with an effective means of redress, as required by Article 8 of the Convention. 88. In view of the foregoing, the Court considers that the domestic authorities did not overstep their margin of appreciation and did not disregard their positive obligation to secure to the applicant effective respect for his private life. 89. Consequently, there has been no violation of Article 8 of the Convention in respect of application no. 41029/04. | The Court reiterated that discrimination within the meaning of Article 14 (prohibition of discrimination) of the Convention was to be understood as treating people in relevantly similar situations differently, without an objective or reasonable justification. However, the applicant had not managed to build a case to prove that the publications had a discriminatory intent or effect. The applicant’s case did not therefore concern a difference of treatment and the Court decided to examine the case only under Article 8 (right to respect for private and family life) of the Convention. In the applicant’s case, the Court held that there had been no violation of Article 8, finding that neither the book nor the dictionaries were offensive to Roma. It found in particular that the Turkish authorities had taken all necessary steps to comply with their obligation under Article 8 to protect the applicant’s effective right to respect for his private life as a member of the Roma community. It did mention, however, that it would have been preferable to label a second definition of the word “Gypsy” – “miserly” – in the dictionaries as “pejorative” or “insulting” rather than “metaphorical”. |
136 | Sexual abuse | II. RELEVANT DOMESTIC LAW AND PRACTICE 52. The applicable provisions of domestic law are extensively summarised in the judgments of Tysiąc v. Poland, no. 5410/03, 20 March 2007, and R.R. v. Poland, no. 27617/04, 26 May 2011. 53. In particular, the Law on Family Planning (Protection of the Human Foetus and Conditions Permitting Pregnancy Termination), which is still in force, was passed by Parliament in 1993. Section 1 provided at that time: “every human being shall have an inherent right to life from the moment of conception”. 54. Section 4(a) of the 1993 Act reads, in its relevant part: “1. An abortion can be carried out only by a physician and where 1) pregnancy endangers the mother’s life or health; 2) prenatal tests or other medical findings indicate a high risk that the foetus will be severely and irreversibly damaged or suffer from an incurable life ‑ threatening ailment; 3) there are strong grounds for believing that the pregnancy is the result of a criminal act. 2. In the cases listed above under 2), an abortion can be performed until such time as the foetus is capable of surviving outside the mother’s body; and in cases listed under 3) above, until the end of the twelfth week of pregnancy. 3. In the cases listed under 1) and 2) above, the abortion shall be carried out by a physician working in a hospital. ... 5. The circumstances in which abortion is permitted under paragraph 1, sub-paragraphs 1) and 2) above shall be certified by a physician other than the one who is to perform the abortion, unless the pregnancy entails a direct threat to the woman’s life. The circumstances specified in paragraph 1, subparagraph 3) above shall be certified by a prosecutor.. ” THE LAW I. THIRD PARTIES’ SUBMISSIONS 55. The Court will first set out the submissions received from the third parties who were granted leave to intervene in the case. It will then examine the admissibility and merits of the applicants’ complaints under Articles 3 and 8 of the Convention. A. The Polish Helsinki Foundation for Human Rights 56. In cases of sexual violence against women and girls, distress suffered by the victims is exacerbated by the risk of unwanted pregnancy or by actual pregnancy resulting from rape. A denial of timely access to necessary medical treatment for female victims of sexual assault, including legal abortion, exposes them to additional suffering and may constitute an act of inhuman or degrading treatment. The distress of a female victim of rape may also be amplified by the unauthorised release of confidential information concerning a rape-induced pregnancy. 57. In the intervenor’s view, it is the State’s obligation, stemming from Article 3 of the Convention, to adopt detailed guidelines for the criminal justice system and health-care practitioners in order to prevent additional suffering for the victim. Therefore, developing a specialised procedure regulating conduct towards victims of sexual abuse would not only assist in collecting the necessary evidence but also, more importantly, validate and address sexual assault patients’ concerns, minimise the trauma they may experience and promote their healing. 58. In theory, the 1993 Act grants women a broad array of reproductive health services, for instance, medical, social and legal assistance, easy access to information and pre-natal testing, methods of family planning and oral contraceptives, and the possibility to terminate a pregnancy. However, despite the statutory wording, Polish women and girls face significant barriers when seeking these medical services in practice. Problems with effective access to legal abortion are reflected in governmental statistics on the execution of the Act: the official number of legal abortions carried out in Poland is very low. In 2009 there were only 538 procedures of legal abortion nationwide. In 510 of those cases the termination was caused by embryopathological factors; 27 procedures were conducted in order to protect the life and health of the pregnant woman, and only 1 abortion was carried out on grounds of the registered pregnancy having been caused by a criminal act. No comprehensive analysis has been presented to explain such a small number of abortions. The third party considers the data collected by the Government highly unreliable and doubts whether they reflect the real situation. The data should be seen against the background of police statistics to the effect that 1,816 cases of rape were reported in 2009. The low figures for lawful abortions in connection with the enforcement of the 1993 Act prove only that women find it less complicated to terminate pregnancies illegally than under the provisions of that statute. 59. Furthermore, in practice the “conscience” clause is often misused. Apart from being used by individual doctors, who fail to refer the patient to another hospital, it is also invoked by entire healthcare facilities, including public ones. Although the problem of such abuse is widely recognised, no effective monitoring mechanism has been put in place to ensure that women’s right to abortion is respected. B. The Rule of Law Institute, Lublin, Poland 60. Issues involving the legal definition of and protection of human life, the determination of the conditions for its acceptable termination, and the understanding of privacy and freedom of conscience are issues of fundamental importance deeply rooted in the culture of each society. The definition of the temporal limits of human life falls within the margin of appreciation of the States Parties. It is not the Court’s task to question the doctors’ and State authorities’ decisions on the acceptability of abortion. It has been acknowledged in the Court’s case-law that the acceptance of termination of pregnancy should be left to decisions given by the democratically elected national authorities. This approach is based on the values underpinning the Convention, such as respect for individual freedom and dignity. Understanding of notions of life and parenthood is so strongly linked to personal freedom and dignity and also to the spiritual values common to the nation that their protection cannot be taken out of the national sphere. In the examination of any case the Court should also have regard to the social and cultural specificity of Poland. 61. The notion of private life within the meaning of Article 8 of the Convention is not unlimited. Termination of pregnancy cannot be said to belong exclusively to the sphere of the mother’s private life. When a woman becomes pregnant her life becomes closely bound up with the developing child. It is not open to doubt that each decision on abortion is seriously harmful to the mother. It has long-lasting effects on her body and psyche. A woman who has decided to have an abortion for whatever dramatic reason must be treated with the utmost care and protection so as to avoid her dignity being threatened any further. This obligation of assistance rests in particular on the State officials responsible for handling such cases. C. The Coram Children’s Legal Centre, London 62. The unique, special position of children has been expressly recognised in many international human rights instruments. The best interests of the child shall be a primary consideration in proceedings touching on its situation. The best interests of the child can only be assessed properly by reference to the views, wishes and feelings of the child. Failure to establish the child’s views may render any decision as to what those best interests are, and how they are best met, unsafe and unlawful. This principle applies irrespective of the type of decision or subject matter of the decision to be taken and is applicable to judicial decision-making and to administrative proceedings. The United Nations Committee on the Rights of the Child (CRC) has emphasised the need to provide appropriate child-sensitive procedural accommodation to enable children to take part in decision-making and legal proceedings. 63. The rights protected by Article 8 of the Convention encompass protection of health and other personal information. Children are entitled to the same, if not higher, protection against non ‑ consensual disclosure of their health and other personal information to third parties, in view of their vulnerability. The CRC observed that confidential medical information concerning adolescents may only be disclosed with the consent of the person concerned or in the same situation applied to adults. Confidentiality is essential to promote the use of health services by adolescents. Other international bodies have consistently recognised the need to respect children’s privacy in matters of health as well as when they are victims of crime. 64. Separation by public authorities amounts to an interference with the family’s rights. While authorities enjoy a wide margin of appreciation in assessing the need to take a child into care, the court must still be satisfied that genuine emergency circumstances existed justifying a child’s abrupt removal from her parents’ care without consultation. The State has the burden of demonstrating that it has engaged in a careful assessment of the impact of the separation on the family and of the available alternatives. 65. In the context of a child’s placement in a juvenile centre there must be a relationship between the ground of permitted deprivation of liberty relied on and the conditions of detention. A care order resulting in placing a child in a locked room in a juvenile shelter can only be made when the child is in such danger that it is impossible for him or her to remain in the family environment. Care orders do not fall into the exhaustive list of permitted deprivations of liberty set out in Article 5 § 1 of the Convention. D. European Centre for Law and Justice, Strasbourg 66. The principle of the sanctity of life has been recognised by the Court. The right to life is an inalienable attribute of human beings and forms the supreme value in the hierarchy of human rights. Life is not merely a private good and right; it is also a public good, which explains why it should by protected by criminal law. Moreover, pregnancy does not concern merely the mother’s private life. 67. The Convention does not formulate any limitations as to the temporal scope of the protection of the right to life; it protects “everyone”. Every human life forms a continuum which begins at conception and advances towards death. Developments in in vitro fertilisation, abortion and euthanasia give rise to situations where the legal protection of life does not coincide with the natural temporal limits of life. The Court has accepted, referring to their margin of appreciation, that States are entitled to determine the moment from which that protection is accorded to a foetus. The Court has also accepted that a foetus belongs to the human race and should be protected as such. 68. Abortion amounts to an exception or derogation from the principle that human life should be protected. There is no right to abortion as such; it must be regarded only as an exception to the rule. The Convention itself does not guarantee a right to abortion. Its Article 8 does not confer such a right on women. The Convention and its Protocols must be interpreted in the light of present-day conditions; however, the Court cannot, by means of an evolutive interpretation, derive from these instruments a right that was not included therein at the outset. This is particularly so here, where the omission was deliberate. 69. Where a State allows for legal abortion, it remains under a positive obligation to protect life and to strike a balance between competing interests. Such legitimate interests must be taken into account adequately and in accordance with the obligations deriving from the Convention. Making abortion lawful does not exempt the State from its responsibility to limit recourse to it and to restrict its consequences for the exercise of fundamental rights. The fundamental rights to life and to health cannot be put on the same footing as the alleged right to abortion. These rights cannot be balanced against each other. The obligation of the State is even stronger where vulnerable persons are concerned who need to be protected against pressure exerted on them, including by their own family environment. The State should be obliged to help pregnant women respect and nurture life. When a pregnant woman envisages abortion, it is the responsibility of the State to ensure that such a decision has not been taken as a result of external pressure. 70. Medical professionals are entitled to refuse to provide medical services. This entitlement originates in their moral obligation to refuse to carry out immoral orders. The Court in its case-law has confirmed the supremacy of moral sense over positive law. Respect for the life of a human being underpins the right to conscientious objection in the medical sphere. Medical practitioners should not be obliged to perform abortion, euthanasia or in vitro fertilisation against their will and against their principles. A possible solution for this dilemma would be to establish a register of physicians qualified and willing to perform lawful abortions. E. Amnesty International 71. The United Nations Committee on the Rights of the Child has emphasised most strongly that the term “violence” must not be interpreted in such a way as to minimise the impact of, and the need to address, non ‑ physical and/or non-intentional forms of harm, such as, inter alia, neglect and psychological maltreatment. That Committee defined inhuman or degrading treatment as “violence in all its forms against children in order to extract a confession, [or] to extrajudicially punish children for unlawful or unwanted behaviours”. Unwanted behaviour in this regard may be understood broadly to include a child’s desire to terminate an unwanted pregnancy and to exercise the right to freedom of conscience. 72. The Inter-American Commission on Human Rights has remarked that victims of sexual violence cannot fully exercise their human rights unless they have access to comprehensive health-care services and information. Providing such care to victims of sexual violence should be treated as a policy priority. 73. The United Nations Special Rapporteur on Violence against Women has noted that certain violations entail different harms for men and women and therefore require different reparation regimes to remedy the wrongdoing. Unwanted pregnancies are part of this gender-specific harm. Where States fail to take a comprehensive and gender-based approach to remedying sexual violence, this may cause additional suffering. 74. The United Nations Committee on the Elimination of Discrimination against Women has recommended that States take measures to prevent coercion in regard to fertility and reproduction and to ensure that women are not forced to seek unsafe medical procedures such as illegal abortion because of a lack of appropriate services in regard to fertility control. Denial of available and legal means to prevent or terminate an unwanted pregnancy would constitute coercion. 75. The Human Rights Committee has pointed out that the extent to which a State provides rape victims with access to safe abortion is of particular relevance to an assessment of that State’s compliance with the prohibition of cruel, inhuman and degrading treatment. Given the fact that the mental distress caused by unwanted pregnancy is likely to grow over time, substantial delay in the provision of voluntary abortion services after rape may cause severe suffering. It is not enough for the State to decriminalise abortion on paper; adequate procedures must be put in place to ensure the provision of legal medical services so that both law and practice are in conformity with the international legal obligations of the State under the UN Convention against Torture. 76. Unauthorised release of confidential information about patient care and health violates the patient’s right to privacy. It may, in addition, deter women from seeking advice and treatment they need, thereby adversely affecting their health and well-being. The United Nations Committee on the Elimination of Discrimination against Women has held that breaches of confidentiality are particularly likely to render women “less willing to seek medical care ... for incomplete abortion and in cases where they have suffered sexual or physical violence”. Indeed, the general stigma attached to abortion and to sexual violence has been shown to deter women from seeking medical care, causing much distress and suffering, both physically and mentally. 77. States have an obligation to ensure that their policies favour the best interests of the child, and to give due weight to the views of the child in all matters affecting him or her, in accordance with the age and maturity of the child. The United Nations Committee on the Rights of the Child has clarified that children’s rights to be heard and to have their views given due weight must be respected systematically in all decision-making processes, and their empowerment and participation should be central to child care ‑ giving and protection. When medical personnel subjects a child to sustained and aggravated harassment with a view to getting her to continue an unwanted pregnancy she has already and repeatedly asked to terminate, this constitutes mental violence, applied by persons who have power over the child, for the purposes of forcing her to engage in an activity against her will and, potentially, punishing her for unwanted behaviour. II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION AS REGARDS THE DETERMINATION OF ACCESS TO LAWFUL ABORTION 78. The applicants complained that the facts of the case gave rise to a breach of Article 8 of the Convention. They submitted that their right to due respect for their private and family life and for the first applicant’s physical and moral integrity had been violated by the absence of a comprehensive legal framework guaranteeing her timely and unhindered access to abortion under the conditions set out by the applicable laws. Article 8 of the Convention, in so far as relevant, reads as follows: “1. Everyone has the right to respect for his private ... life ... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 1. The first applicant’s status as a victim 79. The Government submitted that the first applicant could not claim to be the victim of a breach of the Convention. The national authorities had fulfilled their positive obligation of not only ensuring a legal framework for carrying out an abortion, but, first and foremost, of guaranteeing effective measures leading to the implementation of that right. Therefore, the procedures applied by the national authorities had to be recognised as guaranteeing rights which were not only theoretical or illusory, but also practical and effective, and thus met the standards laid down in the Convention and the Court’s case ‑ law. 80. The applicants submitted that the first applicant remained a victim of a breach of Article 8 of the Convention, despite ultimately, after long and protracted efforts, having undergone an abortion. The applicants had never claimed that the first applicant’s rights had been violated because she had not been allowed access to an abortion. The core of her complaint was that the State’s actions and systemic failures in connection with the circumstances concerning the determination of her access to abortion, seen as a whole, as well as the clandestine nature of the abortion, had resulted in a violation of Article 8. 81. The unwillingness of numerous doctors to provide a referral for abortion or to carry out the lawful abortion as such constituted evidence of the State’s failure to enforce its own laws and to regulate the practice of conscientious objection. Both applicants had been misled by the doctors and the authorities as to the applicable procedure and requirements for lawful abortion. The first applicant had been given unwanted counselling by a priest, harassed by doctors and bullied by persons informed of her situation by the doctors and the priest. She had also been unlawfully torn from her mother’s custody and put into detention. When she had finally been allowed to obtain the abortion that she lawfully sought, that abortion had been performed in a clandestine manner, in a hospital five hundred kilometres from her home town. 82. The State had failed to take appropriate measures to address the systemic and deliberate violations which had breached the applicants’ right to respect for their private life. The set of circumstances surrounding the applicants’ efforts to secure a lawful abortion for the first applicant had not been remedied by the fact that she had ultimately obtained it. The first applicant had not lost her victim status because the State had not acknowledged any of the alleged violations, nor had it provided redress. 83. The Court observes that the scope of the present complaint is not limited to the mere question of access to abortion: the applicants neither challenged the Polish abortion legislation as such nor complained that the first applicant had been denied access to an abortion. Rather, the Court’s task is to examine the issues arising in connection with the procedural and practical modalities for the determination of the lawfulness of such access and, in particular, whether due regard for the applicants’ right to respect for their private and family life was had by the authorities throughout the events concerned. The fact that the first applicant ultimately obtained access to an abortion does not, by itself, deprive the applicants of their status of victims of the alleged breach of the Convention. To that extent the Government’s preliminary objection must therefore be dismissed. 84. The Court considers that the issue of the applicants’ status as victims of the alleged violation of the Convention is closely linked to the substance of their complaint under Article 8 of the Convention, and should be joined to the merits of the case. 2. Exhaustion of domestic remedies 85. The Government submitted that the applicants had failed to exhaust relevant domestic remedies. The Polish legal system provided for legal avenues which made it possible by means of civil compensation claims under Articles 417, 444 and 448 of the Civil Code, or Articles 23 and 24 of that Code, to establish liability on the part of the doctors concerned for any damage caused by medical malpractice. The Government referred to judgments given by the Supreme Court in the cases of V CK 167/03 and V CJ 161/05, given on 21 November 2003 and 13 October 2005 respectively. 86. The applicants submitted that they had had no legal means at their disposal in order to challenge the individual doctors or the decisions made by the hospital. Likewise, no remedy had been available to them in order to contest the failure to provide them with appropriate information in respect of the determination of access to abortion. The applicants had exhausted all possible effective domestic criminal-law remedies. Given the intentional nature of the acts and omissions by the State in this case, and the resulting serious impact on the applicants’ personal integrity and fundamental values, the remedy most appropriate in the circumstances of this case was a criminal ‑ law remedy (see M.C. v. Bulgaria, no. 39272/98, §§ 148 ‑ 53, ECHR 2003-XII, and X and Y v. the Netherlands, cited above, §§ 23-24). 87. The first applicant submitted that civil proceedings in this case would not have provided her with sufficient and effective remedies to vindicate her right to respect for her private life. She was a young and vulnerable rape victim, whose identity would have been disclosed to the public during civil proceedings. This would have resulted in double victimisation. She had been in a weak position and completely dependent on the doctors. The Court in M.C. v. Bulgaria stressed that “[children and other vulnerable individuals, in particular, are entitled to effective [criminal-law] protection.” ( M.C. v. Bulgaria, cited above, § 150). Applicants should therefore not be required, in the absence of a successful criminal prosecution, to obtain redress by bringing a civil action for damages. 88. The Court considers that the Government’s objection concerning the alleged failure to exhaust domestic remedies by way of pursuing a compensation claim before the civil courts in respect of this part of the application is closely linked to the substance of the applicants’ complaints under Article 8 of the Convention, and should therefore be joined to the merits of the case. 89. The Court further notes that this part of the application is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties’ submissions 90. The Government submitted that decisions concerning the carrying out of abortions belonged to the sphere of private, not family, life. Hence, solely women were able to make the relevant decisions, within the limits set by the national legal framework. They referred to the case of Boso v. Italy, where the Court had held that Article 8 of the Convention did not give a potential father any right to participate in the decision-making as to whether or not to carry out an abortion (see Boso v. Italy (dec.), no. 50490/99, 5 September 2002). Therefore this provision could not be regarded as conferring such a right on the mother of the woman seeking an abortion. 91. The fact that at the material time the first applicant was a minor did not confer on her mother, the second applicant, any rights under Article 8 of the Convention. While parental authority was a necessary element of family life, the scope and imperative nature of parental authority changed as the child developed and the functioning of the family had to be subordinated to the child’s interests. Therefore, there had been no violation of the second applicant’s rights guaranteed by Article 8 of the Convention. 92. As regards the second applicant, the Government argued that the instant case differed fundamentally from the case of Tysiąc v. Poland, because ultimately the applicant had had access to an abortion within the time ‑ limit provided for by the statute. The legal conditions for a lawful abortion had existed in the present case and there had never been any dispute between the first applicant and the doctors whether the conditions for a legal abortion obtained. The refusal to perform an abortion at the Lublin hospital had resulted from the statutory right of a doctor to refrain from performing medical services contrary to his or her conscience, the so-called “conscience clause” provided for under Article 39 of the Doctor and Dentist Professions Act. That Act obliged a doctor to refer the patient to another physician. The doctors in that hospital had failed to refer the applicants to another medical practitioner, but that had not been to the first applicant’s detriment because she had ultimately obtained access to an abortion in a public hospital within the time limit provided for by law. Hence, it could not be said that in the circumstances of the present case there had been no procedural mechanism available with a view to determining access to a lawful abortion. 93. The applicants submitted that the absence of a comprehensive legal framework governing the practice of conscientious objection and ensuring access to lawful termination of pregnancy in medical facilities had allowed the doctors to deny the first applicant her right to terminate her pregnancy in a respectful, dignified and timely manner. The applicants had been given contradictory and inaccurate information about the legal conditions that had to be met to obtain a lawful abortion (the waiting time, the necessary documents, the formal requirements which such documents had to meet, the necessity for parental consent by both parents). They had thus been hindered in taking a free decision on the matter of an abortion. 2. The Court’s assessment (a) General principles 94. The essential object of Article 8 is to protect the individual against arbitrary interference by public authorities. Any interference under the first paragraph of Article 8 must be justified in terms of the second paragraph as being “in accordance with the law” and “necessary in a democratic society” for one or more of the legitimate aims listed therein. According to the Court’s settled case-law, the notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to one of the legitimate aims pursued by the authorities (see, among other authorities, Olsson v. Sweden (No. 1), 24 March 1988, § 67, Series A no. 130). 95. In addition, there may also be positive obligations inherent in effective “respect” for private life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of relations between individuals, including both the provision of a regulatory framework of adjudicatory and enforcement machinery protecting individuals’ rights, and the implementation, where appropriate, of specific measures (see, among other authorities, X and Y v. the Netherlands, 26 March 1985, § 23, Series A no. 91). 96. The Court has previously found States to be under a positive obligation to secure to their citizens the right to effective respect for their physical and psychological integrity (see, among many other authorities, Glass v. the United Kingdom, no. 61827/00, §§ 74-83, ECHR 2004 ‑ II; Sentges v. the Netherlands (dec.), no. 27677/02, 8 July 2003; Pentiacova and Others v. Moldova (dec.), no. 14462/03, ECHR 2005-...; Carlo Dossi and others v. Italy, (dec.), no. 26053/07, 12 October 2010; Yardımcı v. Turkey, no. 25266/05, 5 January 2010; §§ 55-56; Gecekuşu v. Turkey (dec.), no. 28870/05, 25 May 2010). These obligations may involve the adoption of measures including the provision of an effective and accessible means of protecting the right to respect for private life (see, among other authorities, McGinley and Egan v. the United Kingdom, 9 June 1998, § 101, Reports of Judgments and Decisions 1998 ‑ III; and Roche v. the United Kingdom [GC], no. 32555/96, § 162, ECHR 2005 ‑ X). While the Court has held that Article 8 cannot be interpreted as conferring a right to abortion, it has found that the prohibition of abortion when sought for reasons of health and/or well ‑ being falls within the scope of the right to respect for one’s private life and accordingly of Article 8 (see A, B and C v. Ireland [GC], no. 25579/05, § 245, 16 December 2010, § 214). In particular, the Court held in this context that the State’s obligations include both the provision of a regulatory framework of adjudicatory and enforcement machinery protecting individuals’ rights, and the implementation, where appropriate, of specific measures ( Tysiąc v. Poland, cited above, § 110; A, B and C v. Ireland [GC], cited above, § 245; and R.R. v. Poland, cited above, § 184). 97. The Court has already found that there is indeed a consensus amongst a substantial majority of the Contracting States of the Council of Europe towards allowing abortion and that most Contracting Parties have in their legislation resolved the conflicting rights of the foetus and the mother in favour of greater access to abortion (see ( A, B and C v. Ireland [GC], cited above, §§ 235 and 237). In the absence of such a common approach regarding the beginning of life, the examination of national legal solutions as applied to the circumstances of individual cases is of particular importance for the assessment of whether a fair balance between individual rights and the public interest has been maintained (see also, for such an approach, A, B and C v. Ireland, cited above, § 229-241). 98. Since the nature of the right to decide on the termination of a pregnancy is not absolute, the Court is of the view that the circumstances of the present case are more appropriately examined from the standpoint of the respondent State’s positive obligations arising under Article 8 of the Convention (see, mutatis mutandis, Tysiąc v. Poland, cited above, § 108). 99. Finally, the Court reiterates that in the assessment of the present case it should be borne in mind that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective (see Airey v. Ireland, 9 October 1979, § 24, Series A no. 32). The Court has already found in the context of similar cases against Poland that once the State, acting within its limits of appreciation, adopts statutory regulations allowing abortion in some situations, it must not structure its legal framework in a way which would limit real possibilities to obtain an abortion. In particular, the State is under a positive obligation to create a procedural framework enabling a pregnant woman to effectively exercise her right of access to lawful abortion ( Tysiąc v. Poland, cited above, § 116 ‑ 124, R.R. v. Poland, cited above, § 200). The legal framework devised for the purposes of the determination of the conditions for lawful abortion should be “shaped in a coherent manner which allows the different legitimate interests involved to be taken into account adequately and in accordance with the obligations deriving from the Convention” ( A, B and C v. Ireland [GC], cited above, § 249). Whilst Article 8 contains no explicit procedural requirements, it is important for the effective enjoyment of the rights guaranteed by that provision that the relevant decision ‑ making process is fair and such as to afford due respect for the interests safeguarded by it. What has to be determined is whether, having regard to the particular circumstances of the case, and notably the nature of the decisions to be taken, an individual has been involved in the decision-making process, seen as a whole, to a degree sufficient to provide her or him with the requisite protection of their interests (see, mutatis mutandis, W. v. the United Kingdom, 8 July 1987, §§ 62 and 64, Series A no. 121). The Court has already held that in the context of access to abortion the relevant procedure should guarantee to a pregnant woman at least the possibility to be heard in person and to have her views considered. The competent body or person should also issue written grounds for its decision (see Tysiąc v. Poland, cited above, § 117). (b) Application of the principles to the circumstances of the present case 100. The Court first notes that the 1993 Act provides for the possibility of lawful abortion in certain narrowly defined situations. In its judgments referred to above the Court has already highlighted the importance of procedural safeguards in the context of the implementation of the 1993 Act when it comes to determining whether the conditions for lawful abortion provided for by that Act obtain. It held that Polish law did not contain any effective procedural mechanisms capable of determining whether these conditions were fulfilled in an individual case, either in the context of a dispute between a pregnant woman and doctors as to whether the conditions for lawful abortion on grounds of a threat to the woman’s health were met (see Tysiąc v. Poland, cited above, §§ 119–124), or in the context of possible foetal malformation confirmed by an initial diagnosis (see R.R. v. Poland, cited above, § 200 and 207). The present case differs from those two cases in that it concerns an unwanted pregnancy resulting from rape. Under Article 4 (a) 1 (5) of the 1993 Act abortion can lawfully be carried out where there are strong grounds for believing that the pregnancy was the result of a criminal act, certified by a prosecutor. 101. The Court now has to examine how the legal framework was applied to the applicants’ case. 102. In this connection, the Court observes that the first applicant received from the public prosecutor the certificate referred to above (see paragraph 10 above). However, the applicants contacted public hospitals in Lublin considerable difficulties arose in obtaining access to an abortion. They received contradictory information as to whether they needed a referral in addition to the certificate from the prosecutor, as to who could perform the abortion, who could make a decision, whether there was any waiting time prescribed by law, and what other conditions, if any, had to be complied with. Ultimately, after an argument with the second applicant, a head of the gynaecological ward at the Lublin Jan Boży hospital refused to allow the abortion to be performed in her ward, relying on her personal views. The Court notes that the second applicant was requested to sign a consent form to the first applicant’s abortion which warned that the abortion could lead to her daughter’s death (see paragraph 15 above). No cogent reasons have been advanced to show that there were special grounds on which in the circumstances of the case an abortion could entail such danger. 103. The applicants subsequently travelled to Warsaw, where the first applicant was admitted to another hospital. She was told there that she could have an abortion on the basis of the certificate issued by the prosecutor (see paragraph 10 above) and a medical certificate issued by the national consultant in gynaecology to the effect that she had a right to an abortion. However, the applicants were told that the first applicant was obliged by law to wait another three days before having an abortion. A psychologist spoke with the first applicant’s parents and with the first applicant. She apparently prepared an opinion on the case, to which the second applicant was not allowed access. The doctor who had admitted the first applicant to the hospital told her that a lot of pressure had been put on the hospital with a view to discouraging it from performing the abortion, and that the hospital had received numerous e-mails from persons criticising the applicants for the decision to have an abortion. 104. Further, when the second applicant filed a complaint with the Office for Patients’ Rights of the Ministry of Health asking them to help her daughter obtain a lawful abortion, a Ministry official told her that the daughter’s statement consenting to an abortion would have to be witnessed by three persons. When the second applicant told him that that statement had in fact been signed in the presence of three witnesses, he informed her that the witnesses’ identification numbers were required and that the faxed copy had to be notarised. 105. Ultimately, the applicants were notified by the Ministry of Health that to have an abortion the first applicant would have to go to a public hospital in Gdansk. The Court notes that that hospital was approximately 500 kilometres from the applicant’s home. The Court fails to see any justification for such an arrangement in respect of the provision of a lawful medical service. It has not been argued, let alone shown, that such a service was not available in a medical establishment closer to the applicants’ normal address. 106. In so far as the Government referred in their submissions to the right of physicians to refuse certain services on grounds of conscience, relying on Article 9 of the Convention, the Court reiterates that the word “practice” used in Article 9 § 1 does not denote each and every act or form of behaviour motivated or inspired by a religion or a belief (see, among many other authorities, Pichon and Sajous v. France (dec.), no. 49853/99, ECHR 2001-X). For the Court, States are obliged to organise their health service system in such a way as to ensure that the effective exercise of freedom of conscience by health professionals in a professional context does not prevent patients from obtaining access to services to which they are entitled under the applicable legislation (see R.R. v. Poland, cited above, no. 27617/04, § 206). 107. In this connection, the Court notes that Polish law has acknowledged the need to ensure that doctors are not obliged to carry out services to which they object, and put in place a mechanism by which such a refusal can be expressed. This mechanism also includes elements allowing the right to conscientious objection to be reconciled with the patient’s interests, by making it mandatory for such refusals to be made in writing and included in the patient’s medical record and, above all, by imposing on the doctor an obligation to refer the patient to another physician competent to carry out the same service. However, it has not been shown that these procedural requirements were complied with in the present case or that the applicable laws governing the exercise of medical professions were duly respected. 108. On the whole, the Court finds that the staff involved in the applicants’ case did not consider themselves obliged to carry out the abortion expressly requested by the applicants on the strength of the certificate issued by the prosecutor. The events surrounding the determination of the first applicant’s access to legal abortion were marred by procrastination and confusion. The applicants were given misleading and contradictory information. They did not receive appropriate and objective medical counselling which would have due regard to their own views and wishes. No set procedure was available to them under which they could have their views heard and properly taken into consideration with a modicum of procedural fairness. 109. As to the second applicant, the Court is fully aware that the issues involved for her in the case were different from those of the first applicant. The Court acknowledges that in a situation of unwanted pregnancy the mother of a minor girl is not affected in the same way. It is of the view that legal guardianship cannot be considered to automatically confer on the parents of a minor the right to take decisions concerning the minor’s reproductive choices, because proper regard must be had to the minor’s personal autonomy in this sphere. This consideration applies also in a situation where abortion is envisaged as a possible option. However, it cannot be overlooked that the interests and life prospects of the mother of a pregnant minor girl are also involved in the decision whether to carry the pregnancy to term or not. Likewise, it can be reasonably expected that the emotional family bond makes it natural for the mother to feel deeply concerned by issues arising out of reproductive dilemmas and choices to be made by the daughter. Hence, the difference in the situation of a pregnant minor and that of her parents does not obviate the need for a procedure for the determination of access to a lawful abortion whereby both parties can be heard and their views fully and objectively considered, including, if necessary, the provision of a mechanism for counselling and reconciling conflicting views in favour of the best interest of the minor. It has not been shown that the legal setting in Poland allowed for the second applicant’s concerns to be properly addressed in a way that would respect her views and attitudes and to balance them in a fair and respectful manner against the interests of her pregnant daughter in the determination of such access. 110. In so far as the Government relied on the instruments of civil law as capable of addressing the applicants’ situation, the Court has already held, in the context of the case of Tysiąc v. Poland, cited above, that the provisions of the civil law as applied by the Polish courts did not make available a procedural instrument by which a pregnant woman seeking an abortion could fully vindicate her right to respect for her private life. The civil ‑ law remedy was solely of a retroactive and compensatory character. The Court was of the view that such retrospective measures alone were not sufficient to provide appropriate protection of the personal rights of a pregnant woman in the context of a controversy concerning the determination of access to lawful abortion, and emphasised the vulnerability of the woman’s position in such circumstances (see Tysiąc v. Poland, no. 5410/03, § 125, ECHR 2007 ‑ IV, and R.R. v. Poland, cited above, § 209, ECHR 2011 (extracts)). Given the retrospective nature of compensatory civil law, the Court fails to see any grounds on which to reach a different conclusion in the present case. The Court is fully aware of examples from the case ‑ law of the Polish civil courts where damages in tort were awarded to women complaining of a breach of their personal rights in various situations connected with unwanted pregnancies and access to abortion (see R.R. v. Poland, cited above, § 79-80, see also paragraph 52 above). However, in those cases the damage had arisen out of facts posterior to the refusal of abortion. No examples of case ‑ law have been adduced before the Court whereby the civil courts acknowledged and redressed damage caused to a pregnant woman by the anguish, anxiety and suffering entailed by her efforts to obtain access to abortion. The Court finds that in the present case civil litigation did not constitute an effective and accessible procedure allowing the applicants to vindicate their rights in the context of the determination of access to a lawful abortion. The Court therefore dismisses the Government’s preliminary objection concerning civil litigation as an effective remedy. 111. The Court is of the view that effective access to reliable information on the conditions for the availability of lawful abortion, and the relevant procedures to be followed, is directly relevant for the exercise of personal autonomy. It reiterates that the notion of private life within the meaning of Article 8 applies both to decisions to become and not to become a parent ( Evans v. the United Kingdom [GC], no. 6339/05, § 71, ECHR 2007 ‑ I; R.R. v. Poland, cited above, § 180). The nature of the issues involved in a woman’s decision to terminate a pregnancy or not is such that the time factor is of critical importance. The procedures in place should therefore ensure that such decisions are taken in good time. The uncertainty which arose in the present case despite a background of circumstances in which under Article 4 (a) 1.5 of the 1993 Family Planning Act there was a right to lawful abortion resulted in a striking discordance between the theoretical right to such an abortion on the grounds referred to in that provision and the reality of its practical implementation ( Christine Goodwin v. the United Kingdom [GC], cited above, §§ 77-78; S.H. and Others v. Austria, cited above, § 74, mutatis mutandis; and A, B and C v. Ireland [GC], cited above). 112. Having regard to the circumstances of the case, the Court concludes that the authorities failed to comply with their positive obligation to secure to the applicants effective respect for their private life. There has therefore been a breach of Article 8 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION AS REGARDS THE DISCLOSURE OF THE APPLICANTS’ PERSONAL AND MEDICAL DATA 113. The applicants complained that there had been a breach of Article 8 of the Convention as a result of the disclosure of information concerning their case to the general public. A. Admissibility 114. The Government submitted that the applicants should have had recourse to civil litigation against the persons involved in their case, claiming a breach of their personal rights within the meaning of Articles 23 and 24 of the Civil Code. 115. The applicants argued that there were no effective remedies in Poland for the violations complained of. Where criminal law could be used, such measures had been resorted to in the present case, but to no avail. Civil litigation would have led to the subsequent disclosure of the applicants’ identities and to further victimisation. It should not be overlooked that all the criminal proceedings instituted at the applicants’ request against various persons had eventually been discontinued. In any event, the applicants had not known the identity and addresses of the perpetrators of certain of the offences concerned. As under the Polish law names and addresses of defendants were necessary in order to bring a civil case before the civil court, the applicants had not been in a position to pursue civil litigation. As a result, the applicants’ rights could not be vindicated under the civil law. It was the responsibility of the State to establish the identity of the perpetrators of any criminal offences. 116. The aim of the rule of exhaustion of domestic remedies referred to in Article 35 § 1 is to afford Contracting States an opportunity to put matters right through their own legal system before having to answer before an international body for their acts (see, among many other authorities, Egmez v. Cyprus, no. 30873/96, § 64, ECHR 2000-XII). Where there is a choice of remedies, the exhaustion requirement must be applied to reflect the practical realities of the applicant’s position so as to ensure the effective protection of the rights and freedoms guaranteed by the Convention (see, among many other authorities, Wiktorko v. Poland, no. 14612/02, § 36, 31 March 2009, and Krumpel and Krumpelová v. Slovakia, no. 56195/00, § 43, 5 July 2005). Moreover, an applicant who has used a remedy which is apparently effective and sufficient cannot be required also to have tried others that were also available but probably no more likely to be successful (see, among many other authorities, Assenov and Others v. Bulgaria, 28 October 1998, § 86, Reports 1998-VIII; Aquilina v. Malta [GC], no. 25642/94, § 39, ECHR 1999-III; and Günaydin v. Turkey (dec.), no. 27526/95, 25 April 2002). 117. The Court notes that the applicants complained to the prosecution authorities, which opened criminal investigations into a number of alleged offences, including two sets of investigations concerning specifically the allegations of disclosure of information about the case to the general public (see paragraphs 50 ‑ 51 above). The Court does not find the applicants’ choice of procedure unreasonable. The applicants tried to have the persons they believed to be guilty of criminal conduct towards them identified and punished. The authorities found that the persons concerned had no case to answer. In particular, the Lublin District Court considered it normal that cases of teenage pregnancy gave rise to controversy and were normally widely discussed by third parties, social and church organisations (see paragraph 51 above). Having regard to the fact that the applicants’ efforts to have the disclosure of their personal information examined in criminal proceedings were unsuccessful, the Court considers that the applicants could not be required to embark on civil proceedings which, in the light of the findings made by the authorities, did not offer good prospects of the authorities finding that the conduct complained of was unlawful within the civil sense of that term. 118. Accordingly, the Court dismisses the Government’s preliminary objection as to the non-exhaustion of domestic remedies. 119. The Court also considers that this part of the application is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further finds that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties’ submissions 120. The Government were of the view that the applicants’ complaint about the disclosure of information concerning their situation, their personal data and their whereabouts had been examined in a number of domestic investigations, including the investigations initiated by the second applicant. However, the authorities had ultimately found that no criminal offence had been committed (see paragraphs 50 ‑ 51 above). 121. The Government further submitted that the information concerning the case had been made public by the first applicant. She had informed her friend of her predicament by way of a text message sent to her friend during the night of 25 May 2008 and by instant messaging, asking for assistance and also thanking her for informing the school. Later on, the Family Court, when deciding on the first applicant’s deprivation of liberty, had had regard to correspondence from the first applicant’s school referring to this evidence (see paragraph 34 above). In the Government’s submission, this correspondence confirmed that she had taken the initiative and voluntarily provided information about her private life and her intention to have an abortion. Information made available voluntarily by the persons concerned was not subject to protection under Article 8 of the Convention (see N.F. v. Italy, no. 37119/97, § 39, 2 August 2001). 122. The Government argued that actions taken by the medical staff of the Jan Boży hospital in Lublin had constituted a part of their routine functions. The first applicant had requested to see a priest and he had talked to her in the exercise of his ministry. The medical staff had not initiated any action with a view to making her change her mind as to the abortion. The hospital had not disclosed information about the first applicant’s stay, her family situation, her health, or about her personal details. That information had not been provided to the hospital in Warsaw. 123. The Government further argued that the press release issued by the director of the Jan Boży Hospital in Lublin had never been published or announced to the public. No press conference had been organised to disseminate information about the case. Because of the media attention surrounding the case and pressure exerted by journalists, the media which had contacted the hospital’s management had received a comment that the doctors had invoked the “conscience clause”. The hospital managers had been obliged to comply with their duty of cooperating with the press in their capacity as persons exercising public function. The hospital had therefore not breached medical secrecy. 124. To sum up, the Government were of the view that the applicants’ right to respect for their private life had not been violated. 125. The applicants submitted that there had been a breach of Article 8 of the Convention as a result of the disclosure of information concerning the first applicant’s pregnancy and their situation to priest K.P. and to the general public. They complained about the press release about the case issued by the management of the Lublin hospital, communication of information to the hospital in Warsaw concerning the first applicant’s identity, her situation and her and her mother’s wish to have the pregnancy terminated, and the disclosure of the applicants’ identity and whereabouts to the general public and the ensuing harassment by various third parties. 126. The applicants complained that the medical staff of the Jan Boży hospital in Lublin had informed priest K.P. about their predicament without asking for their permission. As a result, he had been allowed to approach the first applicant without her or her family having asked to see him and without any thought having been given to the applicants’ wishes. Inappropriate and manipulative pressure had been exerted on the family by Dr. W.S. No proper respect had been shown for their own decisions and views. Information about the applicants’ case had been leaked to the public, including by way of a press release issued by that hospital. As a result, the applicants had found themselves in the midst of a public controversy and the subject of a heated media debate. A hospital in Warsaw where they had subsequently sought assistance had received information about the case from the Lublin hospital without requesting it. When the first applicant was in the hospital in Warsaw she had been harassed by anti-choice activists. The case had become national news and developments in it had been closely followed by many newspapers. 127. The respondent State was liable for the above-mentioned violations of the applicants’ private and family life. Medical staff working for the public hospital and therefore considered to be agents of the State under Polish law had released sensitive information covered by the doctor ‑ patient privilege guaranteed under Polish law. The State was therefore responsible for the actions taken by medical personnel, individual doctors, and civil servants from the Ministry of Health. 2. The Court’s assessment 128. The Court has previously held that the protection of personal data, not least medical data, is of fundamental importance to a person’s enjoyment of his or her right to respect for their private and family life as guaranteed by Article 8 of the Convention. Respecting the confidentiality of health data is a vital principle in the legal systems of all the Contracting Parties to the Convention. The disclosure of such data may dramatically affect an individual’s private and family life, as well as his or her social and employment situation, by exposing that person to opprobrium and the risk of ostracism (see Z v. Finland, 25 February 1997, §§ 95 ‑ 96, Reports 1997 ‑ I). Respecting the confidentiality of health data is crucial not only for the protection of a patient’s privacy but also for the maintenance of that person’s confidence in the medical profession and in the health services in general. Without such protection, those in need of medical assistance may be deterred from seeking appropriate treatment, thereby endangering their own health (see Z v. Finland, cited above, § 95, and Biriuk v. Lithuania, no. 23373/03, § 43, 25 November 2008). 129. The Court notes at the outset that it is not in dispute that the management of the Jan Boży hospital in Lublin issued a press release for the purposes of informing the press about the first applicant’s case, her pregnancy and the hospital’s refusal to carry out an abortion. The Government have also acknowledged that the journalists who contacted that hospital were given information about the circumstances of case. Nor is it in dispute that following the press release and information received by journalists from the hospital the case became the subject of a number of articles in the national press. The hospital was a public hospital for whose acts the State is responsible for the purposes of the Convention (see Glass v. the United Kingdom, no. 61827/00, § 71, ECHR 2004 ‑ II, and I. v. Finland, no. 20511/03, § 35, 17 July 2008). 130. The Court has noted the Government’s argument that the press release did not contain the applicants’ names or other details making it possible to establish their identity. However, the Court observes that after that communiqué the first applicant was contacted by various third parties who sent numerous text messages to her urging her to abandon her intention to have an abortion. The doctors at the Warsaw hospital informed the applicants that a lot of pressure had been put on the hospital with a view to discouraging it from carrying out the abortion. That hospital had received numerous e-mails from persons criticising the applicants for their intention to have recourse to an abortion. In the evening of 4 June 2008 an unidentified woman went to the first applicant’s room and tried to convince her to continue with the pregnancy. When the applicants were leaving that hospital on 5 June 2008 they were accosted by anti-abortion activists. Hence, the Court has no choice but to conclude that the information made available to the public must have been detailed enough to make it possible for third parties to establish the applicants’ whereabouts and to contact them, either by mobile phone or personally. 131. In so far as the Government appear to argue that the first applicant, by contacting a friend via text messages and disclosing her predicament to her, had wished to make her case public, the Court notes that this can reasonably be regarded as a call for assistance, addressed to that friend and possibly also to her close environment, such as the school, by a vulnerable and distraught teenager in a difficult life situation. By no means can it be equated with an intention to disclose information about her pregnancy, her own views and feelings about it and about her family’s attitude towards it to the general public and to the press. 132. The Court finds that there was thus an interference with the applicants’ right to respect for their private life. Such interference gives rise to a breach of Article 8 unless it can be shown that it was “in accordance with the law”, pursued one or more legitimate aim or aims as defined in paragraph 2, and was “necessary in a democratic society” to attain them. 133. It is true that a State enjoys a certain margin of appreciation in deciding what “respect” for private life requires in particular circumstances (see Stubbings and Others v. the United Kingdom, 22 October 1996, §§ 62 ‑ 63, Reports 1996 ‑ IV, and X and Y v. the Netherlands, 26 March 1985, § 24, Series A no. 91). However, the fact that the issue of the availability of legal abortion in Poland is a subject of heated debate does not confer on the State a margin of appreciation so wide as to absolve the medical staff from their uncontested professional obligations regarding medical secrecy. It has not been argued, let alone shown, that in the present case there were any exceptional circumstances of such a character as to justify public interest in the first applicant’s health (compare and contrast, Editions Plon v. France, no. 58148/00, ECHR 2004 ‑ IV, mutatis mutandis, where the Court held that a permanent ban on distribution of a book disclosing health information about a public person was not necessary in a democratic society). The Court fails to see how the disclosure of information about the first applicant’s unwanted pregnancy and about the refusal to carry out an abortion could be justified by media interest in the case. In the Court’s view it cannot be regarded as compatible either with the Convention standards as to the State’s obligation to secure respect for one’s private or family life, or with the obligations of the medical staff to respect patients’ rights laid down by Polish law. It did not therefore pursue a legitimate aim. That of itself is sufficient to ground a breach of Article 8 of the Convention. 134. However, the Court considers that it is also appropriate to address the lawfulness requirement. The Government referred in this connection to the general obligation of the hospital managers to co-operate with the press in their capacity as persons exercising a public function. However, no provision of domestic law has been cited on the basis of which information about individual patients’ health issues, even non-nominate information, could be disclosed to the general public by way of a press release. It further observes that the first applicant was entitled to respect for her privacy regarding her sexual life, whatever concerns or interest her predicament generated in the local community. The national law expressly recognised the rights of patients to have their medical data protected, and imposed on health professionals an obligation to abstain from disclosing information about their patients’ conditions. Likewise, the second applicant was entitled to the protection of information concerning her family life. Yet, despite this obligation, the Lublin hospital made information concerning the present case available to the press. 135. In the light of the foregoing considerations, the Court considers that the disclosure of information about the applicants’ case was neither lawful nor served a legitimate interest. 136. In the absence of a legitimate aim or legal basis for the interference complained of, it is not necessary to ascertain whether it was necessary in a democratic society within the meaning of Article 8 § 2 of the Convention. 137. There has therefore been a violation of Article 8 of the Convention. IV. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 138. The applicants complained of the unlawful removal of the first applicant from the custody of her mother, and her placement in a juvenile shelter and later in a hospital. They referred to Article 5 of the Convention, which, in so far as relevant, provides as follows: “1. ... No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority; ...” A. The parties’ observations 139. The Government submitted that deprivation of liberty pursuant to Article 5 § 1 (d) of the Convention was allowed in most of the States Parties for the purpose of supervision of a minor’s education or to bring him or her before a relevant authority, in the minor’s interest, and also where the minor was not charged with a punishable act, but his or her development was endangered. 140. The provision of Polish law applied in the present case empowered a family court to place a minor with a foster family or in an educational care centre. A court could interfere with parental authority as soon as a potential threat to the interests of the child came to light in order to prevent its negative consequences. Such an interference was not conditional on the inadequate performance of the parents, because a restriction of parental authority was not a measure of repression against parents, but a measure for the protection of the child which at the same time provided assistance to parents who were not coping adequately with their educational responsibilities. 141. In the present case the domestic court had had evidence at its disposal that had led it to reasonably believe that the second applicant’s interests – not only her development, but also her health and life – were seriously threatened. She had been deprived of her liberty on the basis of a lawful decision designed to guarantee her interests. 142. In the Government’s view, the procedure under which the first applicant had been deprived of her liberty had been fair. The decision had been taken promptly after the court learned about the first applicant’s situation. Likewise, the decision had been lifted as soon as the grounds on which she had been deprived of her liberty had ceased to exist. The authorities could not be accused of having acted arbitrarily. 143. The applicants submitted that, considering the first applicant’s age, her distress and her unwanted pregnancy, the decision to deprive her of her liberty had been manifestly unjustified, excessive and extremely stressful for both applicants. B. The Court’s assessment 144. It is not in dispute between the parties that the first applicant was “deprived of [her] liberty” within the meaning of Article 5 § 1. The Court reiterates that the exhaustive list of permitted deprivations of liberty set out in Article 5 § 1 must be interpreted strictly (see Guzzardi v. Italy, 6 November 1980, §§ 96, 98 and 100, Series A no. 39). 145. It is further noted that detention must be lawful both in domestic and Convention terms: the Convention lays down an obligation to comply with the substantive and procedural rules of national law and requires that any deprivation of liberty should be in keeping with the purpose of Article 5, which is to protect an individual from arbitrariness (see Winterwerp v. the Netherlands, 24 October 1979, §§ 39 and 45, Series A no. 33; Bozano v. France, 18 December 1986, § 54, Series A no. 111; and Weeks v. the United Kingdom, 2 March 1987, § 42, Series A no. 114). In this regard, there must be a relationship between the ground of permitted deprivation of liberty relied on and the conditions of detention (see Aerts v. Belgium, 30 July 1998, § 46, Reports 1998 ‑ V, with further references). 146. The Court observes that the first applicant was placed in the juvenile shelter pursuant to Article 109 of the Family and Custody Code. It can therefore accept that the decision of the Family Court was lawful in terms of domestic law. 147. As to Convention lawfulness, the Government justify her detention on the grounds of “educational supervision” within the meaning of Article 5 § 1 (d). The Court has therefore considered whether the detention complied with the conditions imposed by that subsection. The Court has accepted that, in the context of the detention of minors, the words “educational supervision” must not be equated rigidly with notions of classroom teaching: in the context of a young person in local authority care, educational supervision must embrace many aspects of the exercise, by the local authority, of parental rights for the benefit and protection of the person concerned (see Koniarska v. the United Kingdom, (dec.), no. 33670/96, 12 October 2000). 148. The Court observes that the Family Court imposed detention on the first applicant, having regard to her pregnancy and referring to the doubts as to whether she was under pressure to have an abortion. The Court has already acknowledged, in the context of Article 8 of the Convention, that there was a difference in the way in which the pregnancy affected the situation and life prospects of the first and second applicants (see paragraph 110 above). It was therefore legitimate to try to establish with certainty whether the first applicant had had an opportunity to reach a free and well ‑ informed decision about having recourse to abortion. However, the essential purpose of the decision on the first applicant’s placement was to separate her from her parents, in particular from the second applicant, and to prevent the abortion. The Court is of the view that by no stretch of the imagination can the detention be considered to have been ordered for educational supervision within the meaning of Article 5 § 1 (d) of the Convention if its essential purpose was to prevent a minor from having recourse to abortion. Furthermore, the Court is of the opinion that if the authorities were concerned that an abortion would be carried out against the first applicant’s will, less drastic measures than locking up a 14 ‑ year old girl in a situation of considerable vulnerability should have at least been considered by the courts. It has not been shown that this was indeed the case. 149. Accordingly, the Court concludes that the first applicant’s detention between 4 and 14 June 2008, when the order of 3 June 2008 was lifted, was not compatible with Article 5 § 1 of the Convention. V. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 150. The applicants further complained that the facts of the case had given rise to a breach of Article 3 of the Convention in respect of the first applicant. This provision, in so far as relevant, reads as follows: “No one shall be subjected to ... inhuman or degrading treatment ...” 151. The Court notes that this part of the application is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. A. The parties’ submissions 152. In the Government’s view, the first applicant had not been subjected to treatment constituting a breach of Article 3 of the Convention. The applicant may have experienced stress or felt uncomfortable, but the treatment she complained about had not attained the minimum level of severity to consider it a breach of the said article of the Convention. On 9 April 2008 the second applicant had been offered psychological support for the first applicant, who had been given contraception counselling (the offer of post ‑ coital contraception). When the first applicant experienced pain and vaginal bleeding at the juvenile shelter on 6 June 2008, she had been given medical assistance. 153. The purpose of the first applicant’s trip to the hospital in Gdańsk had been to help her in exercising her right to have an abortion. It had not been the intention of the authorities to subject her to debasing or inhuman treatment. Any discomfort that she might have felt had been connected with normal travel circumstances. The national authorities had taken it upon themselves to organise the travel and to provide means of transport. 154. In the Government’s assessment, the situation in which the first applicant had found herself could in no way be compared to the situation of the applicant in the case of Tysiąc, referred to above, or that of the applicants in the case of A, B and C v. Ireland [GC], cited above. It should be noted that she had obtained the medical service she requested within the time ‑ limit provided for by the law. 155. The first applicant complained that she had been subjected to physical and mental suffering amounting to inhuman and degrading treatment by the medical and law-enforcement authorities. Following the decision of the Lublin District Court, the first applicant had been taken from her mother’s custody, put in a police car, and driven around for hours without proper food, water or access to a toilet. In the shelter she had been locked up and not given prompt medical assistance despite vaginal bleeding and intense pain. 156. When the first applicant had finally been allowed to have a legal termination of pregnancy, she had been driven in secret by the Ministry of Health to a hospital approximately 500 kilometers from her home. The applicant had not been provided with information on post-abortion care and immediately after the abortion she had been driven back home. The first applicant had been unnecessarily and repeatedly questioned about the circumstances concerning the rape, which had been traumatic for her. The circumstances of the case, seen as a whole, had exposed the first applicant to serious uncertainty, fear and anguish. The case had become national news; she, along will her mother, had been harassed by various persons driven by their own agenda who had no regard whatsoever for their dignity or the difficulty and vulnerability of their situation. B. The Court’s assessment 157. According to the Court’s well ‑ established case-law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum level of severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see, among many other authorities, Price v. the United Kingdom, no. 33394/96, § 24, ECHR 2001-VII; Kupczak v. Poland, no. 2627/09, § 58, 25 January 2011; Wiktorko v. Poland, no. 14612/02, §§ 44 and 54, 31 March 2009 and R.R. v. Poland, cited above, § 148). 158. Treatment has been held by the Court to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch, and caused either actual bodily injury or intense physical and mental suffering (see, among many other authorities, Labita v. Italy [GC], no. 26772/95, § 120, ECHR 2000 ‑ IV). 159. Treatment has been considered “degrading” when it was such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them (see, among many other authorities, Iwańczuk v. Poland, no. 25196/94, § 51, 15 November 2001, and Wiktorko v. Poland, cited above). 160. Although the purpose of such treatment is a factor to be taken into account, in particular, whether it was intended to humiliate or debase the victim, the absence of any such purpose does not inevitably lead to a finding that there has been no violation of Article 3. Moreover, it cannot be excluded that acts and omissions on the part of the authorities in the field of health-care policy may in certain circumstances engage their responsibility under Article 3 (see, for example, Powell v. the United Kingdom (dec.), no. 45305/99, ECHR 2000-V). The Court has also made findings of a breach of this provision in the context of reproductive rights (see V.C. v. Slovakia, no. 18968/07, §§ 106-120, ECHR 2011 (extracts). 161. For the Court’s assessment of this complaint it is of a cardinal importance that the first applicant was at the material time only fourteen years old. The certificate issued by the prosecutor confirmed that her pregnancy had resulted from unlawful intercourse. The Court cannot overlook the fact that the medical certificate issued immediately afterwards confirmed bruises on her body and concluded that physical force had been used to overcome her resistance. 162. In the light of the above, the Court has no choice but to conclude that the first applicant was in a situation of great vulnerability. 163. However, when the applicant was admitted to Jan Boży hospital in Lublin pressure was exerted on her by the chief doctor who tried to impose her own views on the applicant. Furthermore, the applicant was obliged to talk to a priest without being asked whether she in fact wished to see one. Considerable pressure was put on her and on her mother. Dr W.S. made the mother sign a declaration acknowledging that an abortion could lead to the first applicant’s death. The Court has already noted that no cogent medical reasons have been put forward to justify the strong terms of that declaration (see paragraph 102 above). The first applicant witnessed the argument between the doctor and the second applicant, the doctor accusing the second applicant that she was a bad mother. 164. The Court has already found that information about the case was relayed by the press, also as a result of the press release issued by the hospital. The first applicant received numerous unwanted and intrusive text messages from people she did not know. In the hospital in Warsaw the authorities failed to protect her from being contacted by various persons who tried to exert pressure on her. The applicant was harassed. The authorities not only failed to provide protection to her, having regard to her young age and vulnerability, but further compounded the situation. The Court notes, in particular, that after the first applicant requested protection from the police when she was accosted by anti-abortion activists after leaving hospital in Warsaw, protection was in fact denied her. She was instead arrested in the execution of the court’s decision on her placement in the juvenile centre. 165. The Court has been particularly struck by the fact that the authorities decided to institute criminal investigation on charges of unlawful intercourse against the first applicant who, according to the prosecutor’s certificate and the forensic findings referred to above should have been considered to be a victim of sexual abuse. The Court considers that this approach fell short of the requirements inherent in the States’ positive obligations to establish and apply effectively a criminal ‑ law system punishing all forms of sexual abuse (see, M.C. v. Bulgaria, no. 39272/98, § 184, ECHR 2003 ‑ XII). The investigation against the applicant was ultimately discontinued, but the mere fact that they were instituted and conducted shows a profound lack of understanding of her predicament. 166. On the whole, the Court considers that no proper regard was had to the first applicant’s vulnerability and young age and her own views and feelings. 167. In the examination of the present complaint it is necessary for the Court to assess the first applicant’s situation as a whole, having regard in particular to the cumulative effects of the circumstances on the applicant’s situation. In this connection, it must be borne in mind that the Court has already found, having examined the complaint under Article 8 of the Convention about the determination of the first applicant’s access to abortion, that the approach of the authorities was marred by procrastination, confusion and lack of proper and objective counselling and information (see § 108 above). Likewise, the fact that the first applicant was separated from her mother and deprived of liberty in breach of the requirements of Article 5 § 1 of the Convention must be taken into consideration. 168. The Court concludes, having regard to the circumstances of the case seen as a whole, that the first applicant was treated by the authorities in a deplorable manner and that her suffering reached the minimum threshold of severity under Article 3 of the Convention. 169. The Court concludes that there has therefore been a breach of that provision. VI. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 170. The Court notes at the outset that the applicants also made various other complaints under several Articles of the Convention. 171. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Accordingly, this part of the application must be rejected as inadmissible pursuant to Article 35 §§ 3 (a) and 4 of the Convention. VII. APPLICATION OF ARTICLE 41 OF THE CONVENTION 172. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 173. The first applicant requested the Court to award her just satisfaction in the amount of 60,000 euros (EUR) in respect of non ‑ pecuniary damage. She submitted that the impact on the events concerned in the case had been extremely severe on her. She had been the object of comments expressed in public, in the media and directly to her. A book on the case by an anti-choice activist had been published, describing the events in a malicious and distorted manner. Her true identity and details of her private life had leaked to the media. She had suffered because her mother who had tried to protect and help her, was vilified in public. She had also been deprived of liberty. Her suffering during the summer of 2008 when the main events took place was intense, but she also suffered later when, for example, her teachers had made inappropriate comments and disclosed to her classmates what had happened to her. 174. The second applicant requested the Court to award her just satisfaction in the amount of EUR 40,000. She argued that she had suffered immense stress and anxiety caused by the treatment to which her daughter was subjected. She herself had fallen victim of hostility and hateful comments on the part of the hospital staff, anti ‑ choice activists, the police, the general public and certain media. As the story leaked to the media and their identity had been disclosed, she had been unable to protect her child. Her own identity had been disclosed as well. She had to appear before the courts several times and was subjected to humiliating interrogations. 175. The Government did not comment. 176. The Court, having regard to the applicants’ submissions, is of the view that in the circumstances of the case they must have experienced considerable anguish and suffering, not only in respect of the difficulties which arose in the determination of access to a lawful abortion, in so far as the 1993 Act allowed it, but also because of the unlawful disclosure of information about their case to the public and the unwelcome publicity it caused. The Court, having regard to the circumstances of the case seen as a whole, to the differences in the applicants’ situations and deciding on equitable basis, awards EUR 30,000 to the first and EUR 15,000 to the second applicant. B. Costs and expenses 177. The applicants claimed reimbursement of costs and expenses incurred in the domestic proceedings as well as in the proceedings before the Court itself, in the total amount of EUR 26 445,10. They referred to invoices which they had submitted. 178. Ms Gąsiorowska and Ms Kotiuk claimed EUR 16,445, comprising EUR 13,370 in fees plus VAT of 22 per cent) in respect of legal fees for work which they had carried out in the domestic proceedings and representing the applicants before the Court. The legal fees corresponded to 191 hours spent in preparation of the applicants’ case for the purposes of representation before the domestic courts and the case before the Court, at an hourly rate of EUR 70. The time spent on the case included 50 hours of advising the applicants, helping them to respond to various letters and in helping them in filing appeals and motions, 5 hours of representing the applicants before the Lublin courts, 10 hours of representing them before the Warsaw courts, 25 hours of drafting criminal motions and appeals, two working days of meetings with the applicants, 15 hours consulting with assisting counsel and 20 hours spent in preparation of a response to the Court’s questions. 179. Furthermore, the lawyers assisting the Polish lawyers on behalf of the Centre for Reproductive Rights, Ms Zampas and later Ms Westeson, claimed EUR 10,000 in respect of legal fees, corresponding to 100 hours at a hourly rate of EUR 100. They listed the following items: 70 hours spent in preparation of the case, 10 hours spent in communicating with Polish lawyers and 20 hours spent in drafting a response to the Court’s questions. 180. The Court reiterates that only legal costs and expenses found to have been actually and necessarily incurred and which are reasonable as to quantum are recoverable under Article 41 of the Convention (see, among other authorities, Nikolova v. Bulgaria [GC], no. 31195/96, 25 March 1999, § 79, and Smith and Grady v. the United Kingdom (just satisfaction), nos. 33985/96 and 33986/96, § 28, ECHR 2000 ‑ IX). 181. In the light of the documents submitted, the Court is satisfied that the legal costs concerned in the present case have actually been incurred. 182. The Court, deciding on an equitable basis and having regard to the details of the claims submitted, awards the applicants a global sum of EUR 16,000 in respect of fees and expenses, plus any tax on that amount that may be chargeable to the applicants. C. Default interest 183. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there been a violation of Article 8 (right to respect for private and family life) of the Convention, as regards the determination of access to lawful abortion, in respect of both applicants, and as regards the disclosure of the applicants’ personal data. It further held that there had been a violation of Article 5 § 1 (right to liberty and security) of the Convention, finding in particular that the essential purpose of the first applicant’s placement in the juvenile shelter had been to separate her from her parents and to prevent the abortion. Lastly, the first applicant had been treated by the authorities in a deplorable manner and her suffering had reached the minimum threshold of severity under Article 3 (prohibition of inhuman treatment) of the Convention, in violation of that provision. |
1,087 | Freedom of expression in the employment context | II. RELEVANT DOMESTIC LAW 10. Act No. XX of 1949 on the Constitution (as in force at the material time) provides as follows: Article 59 “(1) In the Republic of Hungary everyone shall have the right to good reputation, the inviolability of his home, and the protection of privacy and personal data.” Article 61 “(1) In the Republic of Hungary everyone shall have the right to freedom of expression and to receive and impart information of public interest.” 11. Act no. XLIII of 1996 on the Service of Members of Professional Staff of the Armed Forces provides as follows: Section 18 – Freedom of expression “(1) Members of professional staff of the police force and of the civilian national security services shall not be members of a political party and shall not engage in political activities. (2) Members of professional staff shall not hold a position in a political party and shall not undertake public appearance in the name or interest of a political party, apart from standing as a candidate in parliamentary, European or municipal elections. (3) Members of professional staff shall not engage in political activities at the place of service or while performing service tasks. (4) Except for the case regulated under section 69, members of professional staff shall not criticise, or express an opinion about, a measure or order received unless they do so within the scope of their activities securing rights and interests; moreover, they shall not make statements injurious to the order and discipline of the service and shall not express a private opinion in official proceedings by using media publicity. (5) Members of professional staff shall not produce or disseminate publications harmful to the order and discipline of the service and shall not place such posters, announcements or emblems anywhere. (6) Announcements of the professional members’ representation organisations falling within their scope of activities may be published in the locally customary manner. ...” Section 29 “(1) For the purposes of this Act, “trade union” shall mean any representation organisation – irrespective of its actual designation – of members of professional staff, whose aim is the representation and protection of the service-related interests of members of professional staff. (2) The trade union shall be entitled to a) operate within the armed forces and to involve its members in its activity; b) provide information for the members of professional staff about their rights and duties affecting their financial, social, cultural, living and service conditions; c) represent its members vis-à-vis the organisational unit or before state organs in respect of issues affecting their service relationship or – upon authorisation – before a court or other authority or body in respect of issues affecting their living- and service conditions. (3) The trade union shall have the right to exercise the following rights vis-à-vis the organisational unit: a) may request information on any issues related to members of professional staff’s service-related financial, social and cultural interests; b) may communicate its position and opinion on the commander’s (head’s) measure (decision) concerning an issue falling under point a) to the commander in charge of the unit and may initiate consultations in such matters; c) may, during official working hours or – in justified cases – in service hours check observance of the rules governing service and working conditions – including healthy and safe service performance – and may request information and data on the implementation of those rules, which information and data shall be provided for the trade union. Such checks may not endanger or hinder the performance of the service tasks. (4) The trade union may draw the attention of the head of the organ in charge of the implementation of the rules to the shortcomings and omissions perceived in the course of the check. If the head fails to take the necessary action in due time, the trade union may institute appropriate proceedings. The body having conducted the proceedings shall be obliged to inform the trade union of the findings of the proceedings. (5) The rights specified under subsections (3)-(4) shall, in respect of issues falling into the supervisory bodies’ scope of direction, be vested in the representative trade union within the given organisation. ...” Section 69 “(1) While performing their service, members of professional staff shall be obliged to execute the orders of a supervisor or the instructions of a superior officer, unless they would commit a criminal offence thereby. (2) Except for the case specified in subsection (1), members of professional staff may not refuse the execution of an unlawful order. Where, however, the unlawful nature of the order was recognised, it shall immediately be drawn to the superior officer’s attention. If the supervisor upholds his order or the superior officer upholds his instruction, it must – upon request – be given in writing. Liability for the execution of an unlawful order or provision shall be borne solely by the issuer of the order or the instruction. ...” Section 194 – Service complaint “(1) Members of professional staff or – upon their authorisation and on their behalf– a representation organisation or an attorney at law may file a service complaint if they find prejudicial a service-related decision, measure or their omission, not regulated under section 195 of this Act. (2) A service complaint against an employer’s measure in connection with the termination of the service relationship, establishment of conflict of interest, or the unilateral modification of the service relationship by the armed forces affecting the member’s position, shall be filed by the member of professional staff within 15 days from the communication of the employer’s measure. In other cases service complaints shall be filed within the period of limitation applicable to the enforcement of the claim at issue. (3) The complaint shall be filed with the supervisor who took (omitted to take) the decision and who shall – in case he fails to grant it – transfer the case, together with the case files, to the supervisor-commander without delay. Unless specified otherwise under the law, the supervisor-commander shall decide on the complaint within 30 days and shall communicate his decision to the complainant. This time limit may be extended on one occasion for another 30 days. (4) No person shall be restricted in exercising his right to file a complaint. No complainant shall suffer any detriment in case his complaint is found ill-founded, except where intentional infringement of discipline, regulatory offence, or a criminal offence has been committed. (5) The exercise of the right of complaint specified in another law shall not be affected by this Act.” Section 195 – Complaint and appeal against a decision “(1) A first instance decision related to the service relationship and taken in proceedings conducted within the armed forces may – unless this Act provides otherwise – be challenged by a member of professional staff by filing a complaint ... or an appeal ... against the decision within 15 days from its service. (2) Appeal against a decision brought in relation with the service obligations of a deceased member of professional staff may be lodged by a close relative. (3) The complaint or appeal shall – unless this Act provides otherwise – be determined within 30 days by the service supervisor or the organ designated by the minister. This time-limit may be extended on one occasion for another 30 days.” 12. Act No. IV of 1978 on the Criminal Code provides as follows: Section 357 – Incitement “(1) Anyone who incites discontent among soldiers towards a superior, a command or in general towards the order of service or discipline, is guilty of a misdemeanour punishable by imprisonment of up to one year. (2) The punishment shall be imprisonment for up to three years if: a) the incitement is committed in the course of the performance of service; b) the incitement entails considerable disadvantage for the service or discipline.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 10 READ IN THE LIGHT OF ARTICLE 11 OF THE CONVENTION 13. The applicant complained that the criminal proceedings conducted against her on account of some statements which she had published on the Internet, as part of her trade-union activity, amounted to a breach of her right to freedom of expression as provided in Article 10 of the Convention. The Court considers that – against the background that the applicant is a trade-union leader – this complaint falls to be examined under Article 10 which will be interpreted in the light of Article 11 of the Convention (see Palomo Sánchez and Others v. Spain [GC], nos. 28955/06, 28957/06, 28959/06 and 28964/06, § 52 in fine, ECHR–2011). Article 10 provides as relevant: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ... 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” Article 11 provides as relevant: “1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society ... for the protection of health or morals or for the protection of the rights and freedoms of others ...” 14. The Government contested the applicant’s arguments. A. Admissibility 15. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. Arguments of the parties a. The Government 16. The Government did not contest that there had been an interference with the applicant’s freedom of expression. However, they pointed out that according to Article 10 § 2 of the Convention, this right might be subject to certain limitations. Section 18 of the Act on the Service of Members of Professional Staff of the Armed Forces restricted the freedom of expression of the armed forces’ professional staff. Decision no. 8/2004. (III.25.) AB of the Constitutional Court had found this limitation to be in compliance with the Constitution. That court argued that orders and instructions might be criticised by lodging a service complaint (section 194 of the Service Act) or through a representative organisation (section 29). The assessment of criticism should be different depending on the type of service within the armed forces and whether it had occurred in an armed conflict, state of danger or emergency, or in peace. Thus, the limitation on the right to freedom of expression was necessary to ensure the undisturbed performance of tasks of the armed forces, and could not be regarded as disproportionate in view of the specific nature of the service relationship. 17. The Government further observed that according to the Court’s case-law, States had the possibility to impose restrictions on freedom of expression where there was a real threat to military discipline. However, proposals for reforms must be tolerated in the army of a democratic State. 18. As established by the domestic courts, in the present case the applicant’s opinion had not been expressed in connection with the trade union’s operation. The incriminated statements had gone beyond the limits of freedom of expression provided in section 29(2)(c) of the Service Act and had not concerned any proposals for reform. The domestic courts examined them thoroughly and found the incriminated statements to be devoid of factual basis and sometimes even defamatory and libellous. No intention to identify or remedy problems or anomalies had been detected in the applicant’s statements; on the other hand, they had been likely to disrupt military discipline. 19. Moreover, the application of a criminal punishment could not be considered as disproportionate in the circumstances. In order to establish incitement, not only should the statement be injurious to the order and discipline of the service, but must also incite discontent among soldiers. In light of the ultima ratio character of criminal law, not all conduct injurious to the order and discipline of the service was sanctioned by criminal punishments. Conduct that did not reach the criminally relevant threshold of dangerousness to society was handled through disciplinary law. However, the applicant’s case was different. 20. Lastly, the domestic courts had referred to the Court’s case law on the matter and examined the human rights aspects of the case. They had come to the conclusion that the use of criminal sanctions in the instant case had not been disproportionate. The Government could not but endorse this view. b. The applicant 21. The applicant submitted that she had not been active as a police officer but had only been in charge of representing the trade union in question. The impugned statements had been made exclusively in this context; and although they had been uttered in order to draw attention to issues of improving the working and living conditions of the trade union members, they could in no way be seen as offensive, defamatory or inciting to insubordination. Nevertheless, she had never been given the opportunity to prove their veracity before any competent body. 2. The Court’s assessment a. Whether there has been an interference 22. The Court notes that this issue has not been in dispute between the parties. It concludes that the applicant’s conviction represented an interference with her right to freedom of expression. Such an interference will represent a violation of the applicant’s right to freedom of expression, unless it was “prescribed by law”, pursued a legitimate aim and was necessary in a democratic society. b. Prescribed by law 23. The Court observes that the applicant’s conviction was based on section 357 of the Criminal Code and is therefore satisfied that it was “prescribed by law”. c. Legitimate aim 24. The Court notes that the applicant’s prosecution reflected the domestic courts’ conviction that her utterances had been capable of instigation to insubordination. It therefore finds that the interference pursued the legitimate aim of “prevention of disorder or crime”, that is, of preserving order in the armed forces (see Engel and Others v. the Netherlands, 8 June 1976, § 98, Series A no. 22; Vereinigung demokratischer Soldaten Österreichs and Gubi v. Austria, 19 December 1994, § 32, Series A no. 302). d. “Necessary in a democratic society” i. General principles 25. Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no “democratic society” (see Oberschlick v. Austria (no. 1), 23 May 1991, § 57, Series A no. 204). As set forth in Article 10, this freedom is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly. Moreover, Article 10 protects not only the substance of the ideas and information expressed but also the form in which they are conveyed (see Uj v. Hungary, no. 23954/10, § 20, 19 July 2011). The same is true when the persons concerned are members of the armed forces, because Article 10 applies to them just as it does to other persons within the jurisdiction of the Contracting States. However, the proper functioning of the armed forces is hardly imaginable without legal rules designed to prevent servicemen from undermining the requisite discipline, for example by writings (see Engel and Others, cited above, § 100; Hadjianastassiou v. Greece, 16 December 1992, § 39, Series A no. 252; Vereinigung demokratischer Soldaten Österreichs and Gubi, cited above, § 36). 26. Consequently, account must be taken of the need to strike the right balance between the various interests involved. Because of their direct, continuous contact with the realities of the country, the national courts are in a better position than an international one to determine how, at a given time, the right balance can be struck. For this reason, in matters under Article 10 of the Convention, the Contracting States have a certain margin of appreciation in assessing the necessity and scope of any interference in the freedom of expression protected by that Article (see Tammer v. Estonia, no. 41205/98, § 60, ECHR 2001-I, and Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 68, ECHR 2004-XI). 27. However, that margin goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court (see, mutatis mutandis, Peck v. the United Kingdom, no. 44647/98, § 77, ECHR 2003-I, and Karhuvaara and Iltalehti v. Finland, no. 53678/00, § 38, ECHR 2004-X). The Court’s task in exercising its supervisory function is not to take the place of the national authorities but rather to review, in the light of the case as a whole, whether the decisions they have taken pursuant to their power of appreciation can be reconciled with the Convention provisions relied upon (see Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 60, ECHR 1999-III; Polanco Torres and Movilla Polanco v. Spain, no. 34147/06, § 41, 21 September 2010; and Petrov v. Bulgaria (dec.), no. 27103/04, 2 November 2010). This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully or in good faith. The Court looks at the interference complained of in the light of the case as a whole, including the content of the statement held against the applicant and its context (see News Verlags GmbH & CoKG v. Austria, no. 31457/96, § 52, ECHR 2000-I). In particular, the Court must determine whether the reasons adduced by the national authorities to justify the interference were “relevant and sufficient”, and whether the measure taken was “proportionate to the legitimate aims pursued” (see Chauvy and Others v. France, no. 64915/01, § 70, ECHR 2004-VI). In doing so, the Court has to satisfy itself that the national authorities, basing themselves on an acceptable assessment of the relevant facts, applied standards which were in conformity with the principles embodied in Article 10 (see Csánics v. Hungary, no. 12188/06, § 37 in fine, 20 January 2009). 28. Furthermore, the members of a trade union must be able to express to their employer their demands by which they seek to improve the situation of workers in their company. A trade union that does not have the possibility of expressing its ideas freely in this connection would indeed be deprived of an essential means of action. Consequently, for the purpose of guaranteeing the meaningful and effective nature of trade union rights, the national authorities must ensure that disproportionate penalties do not dissuade trade union representatives from seeking to express and defend their members’ interests (see Palomo Sánchez and Others, cited above, § 56). Furthermore, there is little scope for restrictions on debates on matters of public interest (see Wingrove v. the United Kingdom, 25 November 1996, § 58, Reports of Judgments and Decisions 1996 ‑ V; Ceylan v. Turkey [GC], no. 23556/94, § 34, ECHR 1999 ‑ IV). 29. In the present case, the Hungarian authorities were required to balance the applicant’s right to freedom of expression, as guaranteed by Article 10 of the Convention, against her obligations in the context of a service relationship. As pointed out above, Article 10 of the Convention does not guarantee an unlimited freedom of expression; and the prevention of disorder within the armed forces constitutes a legitimate aim permitting a restriction of that freedom of expression. If the reasoning of the domestic courts’ decisions concerning the limits of freedom of expression in cases involving the prevention of disorder – in the present case, the prevention of insubordination inside the police force – is sufficient and consistent with the criteria established by the Court’s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts (see, mutatis mutandis, Palomo Sánchez and Others, cited above, § 57; and MGN Limited v. the United Kingdom, no. 39401/04, §§ 150 and 155, 18 January 2011). 30. The Court would add that in order to assess the justification of the statements in question, a distinction needs to be made between statements of fact and value judgments, in that, while the existence of facts can be demonstrated, the truth of value judgements is not susceptible of proof. The requirement to prove the truth of a value judgment is generally impossible to fulfil and infringes freedom of opinion itself, which is a fundamental part of the right secured by Article 10 (see, for example, Lingens v. Austria, 8 July 1986, § 46, Series A no. 103; Oberschlick v. Austria (no. 1), cited above, § 63). The classification of a statement as a fact or a value judgment is a matter which, in the first place, falls within the margin of appreciation of the national authorities, in particular the domestic courts (see Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 76, ECHR 2004 ‑ XI). However, even where a statement amounts to a value judgment, there must exist a sufficient factual basis to support it, failing which it may be excessive (see Jerusalem v. Austria, no. 26958/95, § 43, ECHR 2001–II). ii. Application of those principles to the present case 31. The Court notes that, in some statements published on the website under her effective editorial control, the applicant brought up labour issues, such as outstanding remunerations, which concerned servicemen including trade union members (see paragraph 8 above, quotation 1). However, she also uttered, repeatedly, critical views about the manner in which police leaders managed the force, and accused them of disrespect of citizens and of serving political interests in general (see paragraph 8 above). For the Court, these latter views overstepped the mandate of a trade union leader, because they are not at all related to the protection of labour-related interests of trade union members. Therefore, those statements, being made outside the legitimate scope of trade union-related activities, must be considered from the general perspective of freedom of expression rather than from the particular aspect of trade union-related expressions. In this connection, the Court would reiterate that paragraph 2 in fine of Article 11 indicates that the State is bound to respect the freedom of association of its employees, subject to the possible imposition of lawful restrictions on the exercise by members of its armed forces, police or administration of the rights protected in that Article; however, the restrictions imposed on the three groups mentioned are to be construed strictly and should therefore be confined to the “exercise” of the rights in question, that is, these restrictions must not impair the very essence of the right to organise (see Demir and Baykara v. Turkey [GC], no. 34503/97, §§ 96-97, ECHR–2008). The Court will apply the same approach in the context of Article 10 and stresses that the right to freedom of expression pertains to all, including members of the armed forces. 32. In its analysis of the proportionality of the punitive measures curtailing the applicant’s right to express critical views, the Court will consider the extent to which the right to freedom of expression of a member of the police force can be restricted in order to prevent disorder within the police, a hierarchically organised body where discipline is quintessential for the carrying out of its functions. For the Court, some of the impugned statements (concerning in particular outstanding remunerations) are clearly related to trade union activities and their sanctioning therefore appears difficult to reconcile with the prerogatives of a trade union leader. Moreover, the attack on the Head of the National Police Department is a pure value judgment and enjoys as such a high level of protection under Article 10. The Court also notes that in regard to some other utterances the domestic courts, rather surprisingly, refused to accept evidence (see paragraph 7 above), which fact alone would have cast doubt on the legitimacy of the sanction imposed on the applicant, had that sanction been applied for that sole reason. However, in any event, the Court shares the views of those courts regarding the nature of the views expressed about the practice of senior police management. It accepts that those allegations – in particular the ones accusing senior police management of political bias and agenda, transgressions, unprofessionalism and nepotism – were, even if representing predominantly value-judgments, indeed capable of causing insubordination since they might discredit the legitimacy of police actions, all the more so since the applicant did not provide any clear factual basis for those statements. It is true that she was barred from submitting evidence in the domestic proceedings – a matter of serious concern – however, in her attacks concerning the activities of police leadership, she failed to relate her offensive value judgments to facts. The Court finds that the protection of loyalty and the trust in the constitutionality of police leaders’ actions is not a matter of administrative convenience. The applicant, as a senior police officer, had considerable influence on trade union members and other servicemen, among other things by controlling the trade union’s website. As a high-ranking officer and trade union leader she should have had to exercise her right to freedom of expression in accordance with the duties and responsibilities which that right carries with it in the specific circumstances of her status and in view of the special requirement of discipline in the police force (see also Rekvényi v. Hungary [GC], no. 25390/94, § 43 in fine, ECHR 1999 ‑ III) – and this even in the face of the general interest attached to enabling criticism as to transparency, professionalism and law-abiding within the police force. The Court notes that, by entering the police, the applicant should have been aware of the restrictions that apply to staff in the exercise of their rights. Moreover, the limitations on the applicant’s right to freedom of expression did not require her to exercise her profession in violation of fundamental convictions of her conscience. In view of the margin of appreciation applicable in such cases (see paragraph 26 above), the maintenance of discipline by sanctioning accusatory opinions which undermine the trust in, and the credibility of, the police leadership represents a “pressing social need”, and the reasons adduced by the national authorities to justify it are relevant and sufficient (see Sunday Times v. the United Kingdom (no. 1), 26 April 1979, § 62, Series A no. 30), especially in view of the relatively mild sanction imposed on the applicant – demotion and a fine – which cannot be regarded disproportionate in the circumstances. 33. The foregoing considerations are sufficient to enable the Court to conclude that there has been no violation of Article 10 read in the light of Article 11 of the Convention. II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 34. The applicant also complained under Articles 6, 13 and 17 of the Convention that the proceedings had not been fair. 35. In so far as the applicant’s complaint may be understood to concern assessment of the evidence and the result of the proceedings before the domestic courts, the Court reiterates that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999 ‑ I). In the present case, there is no appearance that the domestic courts lacked impartiality or that the proceedings were otherwise unfair or arbitrary. It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 (a) and must be rejected, pursuant to Article 35 § 4 of the Convention. | The Court held that there had been no violation of Article 10 (freedom of expression) of the Convention. It found that, by virtue of her position, the applicant had considerable influence and therefore had to exercise her right to freedom of expression in accordance with the duties and responsibilities which that right carried with it in view of her status and of the special requirement of discipline in the police force. The relatively mild sanction imposed on the applicant – demotion and a fine – could not be regarded as disproportionate in the circumstances. |
442 | Medical assistance for prisoners with a physical illness | II. RELEVANT DOMESTIC LAW A. The Law on Conditions for Holding Arrested and Detained Persons ( «Ձերբակալված և կալանավորված անձանց պահելու մասին» ՀՀ օրենք ) 71. According to Section 13, a detainee has the right, inter alia, to healthcare, including to receive sufficient food and urgent medical assistance. 72. According to Section 21, the administration of a detention facility shall ensure the sanitary, hygienic and anti-epidemic conditions necessary for the preservation of health of detainees. At least one general practitioner shall work at the detention facility. A detainee in need of specialised medical assistance must be transferred to a specialised or civilian medical institution. B. The Code of Criminal Procedure 1. Presumption of innocence 73. According to Article 18, the suspect or the accused shall be considered innocent until his guilt is proved by a final court verdict in accordance with the procedure prescribed by this Code. 2. Calling of witnesses 74. According to Article 23 § 3, the court does not side with the prosecution or the defence and acts only in the interests of the law. 75. According to Article 65 § 2 (12), the accused has the right to file motions. 76. According to Article 102 § 2, motions and requests must be examined and ruled upon immediately after being filed. 77. According to Article 271 § 1, a list of persons subject to be called to court shall be annexed to the indictment. The investigator must indicate in the list the location of these persons and the pages of the case file which contain their statements or conclusions. 78. According to Article 277 § 1, the prosecutor, by approving the indictment, shall transmit the case to the competent court. 79. According to Article 292, the judge who has taken over the criminal case shall study the materials of the case and within fifteen days after taking over the case shall adopt, inter alia, a decision to set the case down for trial. 80. According to Article 293 § 2, the decision to set the case down for trial must contain, inter alia, the list of persons subject to be called to court. 81. According to Article 331 §§ 1 and 2, in the preparatory stage of the trial, the presiding judge shall inquire whether the prosecution and the defence want to file motions seeking to obtain new evidence and to include it in the case file. The court must examine each motion filed and hear the parties. The court shall grant the motion, if the circumstances which it seeks to disclose may be significant for the case. A decision refusing a motion must be reasoned. 82. According to Article 391 § 5, the parties are entitled to file motions in the court of appeal seeking to call new witnesses. III. RELEVANT COUNCIL OF EUROPE DOCUMENTS A. The 3rd General Report by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (the CPT) – CPT/Inf(93)12 83. The relevant extracts from the Reports read as follows: “ a. Access to a doctor ... 34. While in custody, prisoners should be able to have access to a doctor at any time, irrespective of their detention regime... The health care service should be so organised as to enable requests to consult a doctor to be met without undue delay. ... 35. A prison's health care service should at least be able to provide regular out-patient consultations and emergency treatment (of course, in addition there may often be a hospital-type unit with beds). ... Further, prison doctors should be able to call upon the services of specialists. ... Out-patient treatment should be supervised, as appropriate, by health care staff; in many cases it is not sufficient for the provision of follow-up care to depend upon the initiative being taken by the prisoner. 36. The direct support of a fully-equipped hospital service should be available, in either a civil or prison hospital. ... 37. Whenever prisoners need to be hospitalised or examined by a specialist in a hospital, they should be transported with the promptness and in the manner required by their state of health. b. Equivalence of care i) general medicine 38. A prison health care service should be able to provide medical treatment and nursing care, as well as appropriate diets, physiotherapy, rehabilitation or any other necessary special facility, in conditions comparable to those enjoyed by patients in the outside community. Provision in terms of medical, nursing and technical staff, as well as premises, installations and equipment, should be geared accordingly. There should be appropriate supervision of the pharmacy and of the distribution of medicines. Further, the preparation of medicines should always be entrusted to qualified staff (pharmacist/nurse, etc.). 39. A medical file should be compiled for each patient, containing diagnostic information as well as an ongoing record of the patient's evolution and of any special examinations he has undergone. In the event of a transfer, the file should be forwarded to the doctors in the receiving establishment. Further, daily registers should be kept by health care teams, in which particular incidents relating to the patients should be mentioned. Such registers are useful in that they provide an overall view of the health care situation in the prison, at the same time as highlighting specific problems which may arise. 40. The smooth operation of a health care service presupposes that doctors and nursing staff are able to meet regularly and to form a working team under the authority of a senior doctor in charge of the service.” B. The Report of the CPT on its Visit to Armenia in 2002 – CPT/Inf(2004)25 84. The relevant extracts from the Report read as follows: “ b. health care services in the prisons visited [(four establishments, including Nubarashen Prison)] THE LAW I. THE GOVERNMENT'S REQUEST TO STRIKE THE CASE OUT OF THE LIST 85. The Government submitted that the applicant's daughter, Ms Arusyak Harutyunyan, had no legitimate interest in pursuing the application lodged by her late father and requested that the application be struck off the list. 86. The Court points out that on numerous occasions it has accepted that the parents, spouse or children of a deceased applicant are entitled to take his place in the proceedings, if they express their wish to do so (see, for example, Deweer v. Belgium, 27 February 1980, §§ 37-38, Series A no. 35; X v. the United Kingdom, 5 November 1981, § 32, Series A no. 46; Vocaturo v. Italy, 24 May 1991, § 2, Series A no. 206 ‑ C; G. v. Italy, 27 February 1992, § 2, Series A no. 228 ‑ F; Pandolfelli and Palumbo v. Italy, 27 February 1992, § 2, Series A no. 231 ‑ B; X v. France, 31 March 1992, § 26, Series A no. 234 ‑ C; Raimondo v. Italy, 22 February 1994, § 2, Series A no. 281 ‑ A; and Dalban v. Romania [GC], no. 28114/95, §§ 38-39, ECHR 1999 ‑ VI). The Government did not raise any specific arguments in support of their request. The Court does not see any special circumstances in the present case to depart from its established case-law. 87. Consequently, the Government's request for the case to be struck out should be dismissed. The Court holds that Ms Arusyak Harutyunyan has standing to continue the present proceedings in the applicant's place. II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 88. The applicant complained that he had not received requisite medical assistance during his stay at the detention facility from 6 May 2003 to 13 August 2004. The applicant also complained about being placed in a metal cage during the appeal proceedings. He invoked Article 3 of the Convention which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Alleged lack of requisite medical assistance in detention 1. The parties' submissions (a) The Government 89. The Government argued that the medical assistance provided to the applicant at Nubarashen Detention Facility was in compliance with the CPT standards. The applicant indeed suffered from several chronic diseases such as duodenal ulcer, gastritis, diabetes and also heart problems. This was noted at the time of the applicant's admission to the detention facility and he was placed under adequate supervision and care. The healthcare service at the detention facility had sufficient specialised staff and the applicant had access to a doctor at any time. The medical assistance was provided to him on the initiative of the medical staff and did not depend on the discretion of the investigating authority, unlike the case of Khudobin v. Russia (no. 59696/00, § 86, ECHR 2006 ‑ XII (extracts)). Whenever any symptoms appeared, the applicant was promptly examined and received out-patient treatment, including consultations and prescription of medicine when necessary. All this was duly recorded in the medical files. 90. Furthermore, the applicant was twice transferred for in-patient treatment at the prisoners' hospital and the detention facility's medical unit, where he underwent numerous examinations and treatment. At the hospital the applicant underwent several ultrasound scans of his abdominal area and had blood and urine tests and an electrocardiogram. At the medical unit he once again underwent examinations. On both occasions the applicant received medical care and treatment through medication and was discharged after his state of health sufficiently improved and stabilised. 91. Referring to the events of 7 July and 14 and 22 August 2003 and 27 July 2004, the Government claimed that the applicant was provided with immediate medical aid whenever he had health problems. Furthermore, his state of health and the adequacy of the medical treatment received by him were under the supervision of the court, as can be seen from the judge's letter of 22 August 2003. 92. The Government also claimed that the applicant had failed to submit any proof that the alleged lack of requisite medical assistance caused him mental or physical suffering, diminishing his human dignity, or that during the contested period his state of health deteriorated. There was no reason for anxiety on his part since the presence of a medical assistant was ensured at the detention facility on a 24-hour basis. Furthermore, the authorities did not place any restrictions on the parcels and medicine brought by the applicant's relatives and also allowed them to invite an outside doctor, which they did on 18 December 2003. 93. The Government finally claimed that the authorities had no intention to humiliate the applicant, since he was kept in normal prison conditions and was transferred to a hospital each time he was feeling unwell, and was kept there until his health improved. With reference to the CPT Report on its 2002 periodic visit to Armenia, the Government claimed that in general the performance of the health-care service at Nubarashen Detention Facility, which was adequately staffed, was satisfactory. (b) The applicant 94. The applicant submitted at the outset that he was not adequately examined upon his admission to the detention facility, since not all of his diseases were duly noted, including the duodenal ulcer. He further admitted that he enjoyed “access to a doctor” in the sense of being able to complain about his health problems to the medical staff, but argued that no medical assistance was provided as a result of such complaints. 95. The applicant further argued that the relevant medical recommendations did not receive a proper follow-up. Firstly, no operation was carried out despite the doctor's recommendation of 20 June 2003. Secondly, no medical assistance was provided to him between September 2003 and August 2004, including regular medical check-ups and prescription and provision of medication and of a special diet. Apart from the treatment received at the hospital and the medical unit and the two examinations which he underwent on 7 May and 20 June 2003, his medical files do not contain any records. Within that period he and his lawyer complained both verbally and in writing to various authorities about his poor state of health, but these complaints remained unanswered. 96. The applicant further submitted that he was not complaining about the two periods when he received in-patient treatment, but about the fact that throughout the remaining period he was kept in a common cell and was not provided with the medical assistance he needed and asked for. The failure to provide him with the medical care that his poor state of health required caused him immense mental and physical suffering, which eventually led to the abrupt deterioration of his health and his suffering a heart attack. 97. As regards the examining judge's letter of 22 August 2003, the applicant alleged that the main purpose of this inquiry was to find out whether he was fit for trial. In any event, this inquiry did not produce any positive results. Furthermore, the fact that, instead of taking any steps to ensure his adequate treatment, the administration of the detention facility decided in June 2004 to transfer him to a cell where conditions were even worse, suggested that they had the intention to humiliate him. 98. The applicant finally claimed that the fact that the authorities did not create any obstacles for his relatives to invite an outside doctor did not absolve them from their obligation to provide him with requisite medical assistance. Nor did the Government's reference to the allegedly satisfactory performance of the detention facility's healthcare service in general. 2. The Court's assessment (a) Admissibility 99. The Court notes at the outset that the applicant raised his complaint about the allegedly poor conditions of his cell at Nubarashen Detention Facility for the first time in his observations filed on 5 May 2007. However, the applicant's detention in that facility ended on 13 August 2004, which is more than six months before the date of introduction of this complaint (see, for example, Polufakin and Chernyshev v. Russia, no. 30997/02, § 146, 25 September 2008). It follows that this complaint was lodged out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention. 100. As to the complaint concerning the alleged failure to provide the applicant with requisite medical assistance in that facility, the Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. (b) Merits (i) General principles 101. The Court observes at the outset that Article 3 enshrines one of the most fundamental values of a democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the victim's conduct (see, among other authorities, Labita v. Italy [GC], no 26772/95, § 119, ECHR 2000-IV). 102. It reiterates that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Ireland v. the United Kingdom, 18 January 1978, § 162, Series A no. 25; Costello-Roberts v. the United Kingdom, 25 March 1993, § 30, Series A no. 247 ‑ C; and Dougoz v. Greece, no. 40907/98, § 44, ECHR 2001 ‑ II). Although the question of whether the purpose of the treatment was to humiliate or debase the victim is a factor to be taken into account, the absence of any such purpose cannot conclusively rule out a finding of violation of Article 3 (see, for example, Peers v. Greece, no. 28524/95, § 74, ECHR 2001 ‑ III) 103. The Court observes that it cannot be ruled out that the detention of a person who is ill may raise issues under Article 3 (see Mouisel v. France, no. 67263/01, § 38, ECHR 2002-IX). Although this Article cannot be construed as laying down a general obligation to release detainees on health grounds, it nonetheless imposes an obligation on the State to protect the physical well-being of persons deprived of their liberty by, among other things, providing them with the requisite medical assistance (see Sarban v. Moldova, no. 3456/05, § 77, 4 October 2005, and Khudobin v. Russia, no. 59696/00, § 93, ECHR 2006 ‑ XII (extracts)). 104. The Court has also emphasised the right of all prisoners to conditions of detention which are compatible with respect for their human dignity, that the manner and method of the execution of the measure do not subject them to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, their health and well-being are adequately secured by, among other things, providing the requisite medical assistance (see Kudła v. Poland [GC], no. 30210/96, § 94, ECHR 2000 ‑ XI). (ii) Application of these principles in the present case 105. The Court notes at the outset that it is undisputed that the applicant suffered from a number of serious illnesses, including acute bleeding duodenal ulcer, diabetes, diabetic angiopathy and a heart condition. At the time of his admission to the detention facility, however, only the applicant's ischemic heart disease and diabetes were noted, but no record was made of his acute bleeding duodenal ulcer or diabetic angiopathy. 106. In any event, on 20 June 2003 – about a month and a half after he was placed in detention – the applicant was examined by a surgeon, during which it was noted that the applicant also suffered from acute bleeding duodenal ulcer and surgery was recommended (see paragraph 27 above). Following this recommendation, on 26 June 2003, the applicant was transferred to a hospital for prisoners. The parties disagreed as to whether this recommendation received an adequate follow-up (see paragraph 39 above). 107. The Court observes, however, that the Government's allegation that surgery had actually been performed on the applicant is not supported by the materials of the case. In particular, both the applicant's hospital medical file and the discharge certificate of 29 July 2003 said nothing about any surgery having been carried out in respect of the applicant. It is hard to imagine that such a vital piece of information would have been omitted from those documents. The Court is therefore not convinced by the Government's allegation and concludes that the doctor's recommendation of 20 June 2003, which could potentially have improved the applicant's state of health, was not followed up and this without any valid reasons. 108. The Court notes, on the other hand, that the authorities made certain efforts to meet the applicant's health needs by hospitalising him on two occasions. The applicant also admitted this fact, adding that he had no specific grievances in respect of the treatment received during those periods. The Court, however, agrees with the applicant that nothing suggests that these efforts had, as alleged by the Government, a stabilising effect on his health. 109. In particular, as regards the applicant's stay at the hospital for prisoners between 26 June and 29 July 2003, it is true that some treatment, including haemostatic therapy of ulcer, was given. It is also true that, while the applicant's discharge certificate of 29 July 2003 was silent on any improvement in his state of health, it was, nevertheless, noted in his medical file that he was being discharged in satisfactory condition. However, only a few days after his discharge from the hospital the applicant was once again hospitalised – this time at the medical unit of the detention facility – since his state of health deteriorated (see paragraph 40 above). Furthermore, the above discharge certificate explicitly stated that the applicant had to undergo regular medical check-ups. This suggests that the applicant's treatment, even if possibly useful, nevertheless cannot be said to have been successful to the extent that it made any further medical supervision unnecessary. 110. As regards the treatment received by the applicant at the medical unit of the detention facility, the Court points out that the applicant was transferred there on 5 August 2003 and was under regular observation from 11 to 29 August 2003. However, his medical file does not contain any further records. It is notable that soon after the records stopped, namely on 9 September 2003, the applicant's lawyer applied to the authorities with a request that the applicant be provided with regular medical check-ups, which remained unanswered (see paragraph 46 above). It therefore appears that no observation and treatment at all were carried out between 29 August and 13 October 2003, that is the date when the applicant was transferred back to his cell. Nor, in such circumstances, is it clear what the outcome of the applicant's treatment at the medical unit was. 111. All the above evidence and circumstances suggest that the applicant was in need of regular medical check-ups and assistance. The parties disagreed as to whether this need was actually met. The applicant alleged that no medical assistance was provided to him during his detention apart from the two periods when he was under medical supervision. The Government admitted that the applicant had applied verbally for medical assistance during the disputed period, but alleged that such assistance was provided to him on each and every occasion, including regular medical check-ups (see paragraph 49 above). 112. The Court notes, however, that the applicant's medical file does not contain a single record of any medical check-up or assistance provided to him between 29 August 2003 and 13 August 2004 by the medical staff of the detention facility. It therefore does not find the Government's allegation to be convincing. The Court further notes that the discharge certificate of 29 July 2003, which explicitly required that the applicant undergo regular medical check-ups, did not make such check-ups dependent on the applicant's initiative. The detention facility's medical staff therefore had the duty to carry out such check-ups irrespective of whether the applicant himself asked for this. It is clear that the applicant was in need of such regular medical care which was, however, denied to him during the said period. The Government's argument that the medical unit of the detention facility was sufficiently staffed is therefore irrelevant, given that no regular medical care was provided specifically to the applicant. 113. As regards the Government's argument that the applicant was not subjected to any mental or physical suffering as a result of the alleged lack of requisite medical assistance, the Court notes at the outset that the applicant did experience an emergency situation on account of his heart condition when he suffered a heart attack on 27 July 2004 (see paragraph 56 above). It is not for the Court to speculate whether the heart attack suffered by the applicant was a direct consequence of the failure to provide him with regular medical care. However, the Court finds it especially worrying that the applicant's heart attack coincided with the several unsuccessful attempts made by his counsel to draw the attention of the authorities to the applicant's need for medical care (see paragraphs 54 and 55 above). 114. It is true that there is no material before the Court to suggest that the applicant had any medical emergency or was exposed to severe or prolonged pain during the period in question on account of his other illnesses, including the acute bleeding duodenal ulcer and the diabetes. The Court points out, however, that where complaints are made about a failure to provide requisite medical assistance in detention, it is not indispensable for such a failure to lead to any medical emergency or otherwise cause severe or prolonged pain in order to find that a detainee was subjected to treatment incompatible with the guarantees of Article 3. The fact that a detainee needed and requested such assistance but it was unavailable to him may, in certain circumstances, suffice to reach a conclusion that such treatment was degrading within the meaning of that Article (see Sarban, cited above, §§ 86-87 and 90). 115. Thus, as already indicated above, the applicant was clearly in need of regular medical care and supervision, which was, however, denied to him over a prolonged period of time. All the complaints in this respect lodged by the applicant's counsel either remained unanswered (see paragraph 46 above) or simply received formal replies (see paragraphs 58, 60 and 63 above). The applicant's verbal requests for medical assistance were also to no avail. In the Court's opinion, this must have given rise to considerable anxiety and distress on the part of the applicant, who clearly suffered from the effects of his medical condition, which went beyond the unavoidable level of suffering inherent in detention. 116. There has accordingly been a violation of Article 3 of the Convention. B. The applicant's placement in a metal cage during the appeal proceedings 1. The parties' submissions 117. The Government, relying on the judgment in the case of Sarban (cited above, §§ 88-90), submitted that placement of a person in a metal cage during court proceedings could be viewed only as a factor contributing to a finding of a violation of Article 3, but in itself not sufficient to reach such a finding. In that case, as opposed to the present one, there were other factors which led the Court to make such a finding, including the high publicity of the case and the applicant being publicly handcuffed and having his blood pressure measured through the bars of the cage in front of the public. While in that case the security measures in question were unjustified, in the present case the Court of Appeal gave detailed reasons for the necessity to keep the applicant in the cage, which included risks to security and the victim's fear. 118. Furthermore, the cage where the applicant was placed was considered as the seat intended for the defendant. There was therefore no intention to humiliate the applicant or reasons for him to feel humiliated in his own eyes. The Government finally submitted that the phenomenon of metal cages in courtrooms was inherited from the Soviet system and such cages had been removed following the circumstances of the present case as a result of reforms. 119. The applicant claimed that the treatment in question exceeded the minimum level of severity required by Article 3. During the entire appeal proceedings, which included twelve court hearings each lasting about four hours, he was kept in a metal cage, which violated his dignity and made him feel inferior. His children, wife, sister, brother and friends were present and saw him in such a state, and seeing the pain of his relatives aggravated his own suffering. He also felt humiliated in the eyes of his adversaries. In particular, when his lawyer requested the court to release him from the cage the court, before deciding on this matter, asked for the opinion of the prosecutor and the victim's representative. 120. Furthermore, the Government's reference to security considerations was unfounded. In particular, during the entire proceedings at first instance he was not kept in a cage and there was not a single incident recorded between him and the victim. Besides, he was placed in the cage automatically and not upon the victim's request, since this was a measure applied in the Court of Appeal to all defendants who had been placed in detention. The Court of Appeal failed to provide reasons for its decision to keep him in the cage. Moreover, during the entire time he was accompanied by armed servicemen and there was no need to keep him in the cage. 121. The applicant finally claimed that, by introducing reforms, the Government accepted that cages did not correspond to international standards. The removal of the cages also showed that they were in general not necessary to ensure security. Besides, the Government's statement was not entirely true since cages still remained in some courtrooms outside Yerevan. 2. The Court's assessment (a) Admissibility 122. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. (b) Merits 123. The Court reiterates the basic principles established in its case-law concerning the prohibition of ill-treatment under Article 3 (see paragraph 101 and 102 above). It further observes that treatment has been held by the Court to be “degrading” because it was such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them (see Kudła v. Poland [GC], no. 30210/96, § 92, ECHR 2000-XI). In order for a punishment or treatment associated with it to be “degrading”, the suffering or humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment (see V. v. the United Kingdom [GC], no. 24888/94, § 71, ECHR 1999-IX). 124. The Court further reiterates that a measure of restraint does not normally give rise to an issue under Article 3 of the Convention where this measure has been imposed in connection with a lawful detention and does not entail a use of force, or public exposure, exceeding that which is reasonably considered necessary. In this regard it is important to consider, for instance, whether there is a danger that the person concerned might abscond or cause injury or damage (see, among many authorities, Raninen v. Finland, 16 December 1997, § 56, Reports of Judgments and Decisions 1997-VIII, and Öcalan v. Turkey [GC], no. 46221/99, § 182, ECHR 2005 ‑ IV). 125. Thus, a violation of Article 3 was found in a case where the applicants, publicly known figures, were placed during a hearing on their detention, which was broadcast live throughout the country, in a barred dock resembling a metal cage and were guarded by special forces wearing black hood-like masks, despite the fact that there was no risk that the applicants might abscond or resort to violence during their transfer to the courthouse or at the hearings (see Ramishvili and Kokhreidze v. Georgia, no. 1704/06, §§ 98-102, 27 January 2009). Furthermore, a violation of Article 3 was found in a case where the applicant, who was not a public figure, was unjustifiably handcuffed during public hearings (see Gorodnichev v. Russia, no. 52058/99, §§ 105-109, 24 May 2007). Unjustified placement of an applicant in a cage during public hearings was also considered a factor contributing to a finding of a violation of Article 3 (see Sarban, cited above, §§ 88-90). However, even in the absence of publicity, a given treatment may still be degrading if the victim could be humiliated in his or her own eyes, even if not in the eyes of others (see Tyrer v. the United Kingdom, 25 April 1978, § 32, Series A no. 26; and Ramishvili and Kokhreidze, cited above, §§ 97 and 100). Thus, application of measures of restraint to an applicant in a private setting still gave rise to a violation of Article 3 in a situation where no serious risks to security could be proved to exist (see Henaf v. France, no. 65436/01, §§ 51 and 56, ECHR 2003 ‑ XI). 126. Turning to the circumstances of the present case, the Court notes that the applicant was kept in a metal cage measuring around 3 sq. m during the entire proceedings before the Court of Appeal. The Court does not share the Government's view that this measure was justified by security considerations. Nor is there any material in the case file to support the Government's position. In particular, contrary to what the Government claim, no specific reasons were given by the Court of Appeal in justifying the necessity of keeping the applicant in the metal cage. Indeed, in refusing the applicant's relevant motion, the Court of Appeal simply made a general reference to security considerations, without providing any detailed reasons as to why the applicant's release from the metal cage would endanger security in the courtroom. 127. The Court notes that nothing in the applicant's behaviour or personality could have justified such a security measure. During the entire proceedings before the District Court, where no security measures were applied to him, the applicant showed orderly behaviour and no incidents were recorded. Moreover, the applicant had no previous convictions or any record of violent behaviour and was accused of a non-violent crime. Furthermore, it can be inferred from the statements of the prosecutor and the Court of Appeal that the metal cage in the Court of Appeal's courtroom was a permanent installation which served as a dock and that the applicant's placement in it was not necessitated by any real risk of his absconding or resorting to violence but by the simple fact that it was the seat where he, as a defendant in a criminal case, was meant to be seated (see paragraphs 17 and 18 above). 128. The Court observes that the proceedings before the Court of Appeal lasted from March to May 2004 and at least twelve public hearings were held. The applicant alleged, which the Government did not dispute, that the hearings lasted on average about four hours. During this period the applicant was observed by the public, including his family and friends, in a metal cage. The Court considers that such a harsh appearance of judicial proceedings could lead an average observer to believe that an extremely dangerous criminal was on trial. Furthermore, it agrees with the applicant that such a form of public exposure humiliated him in his own eyes, if not in those of the public, and aroused in him feelings of inferiority. Moreover, such humiliating treatment could easily have had an impact on the applicant's powers of concentration and mental alertness during the proceedings bearing on such an important issue as his criminal liability (see, mutatis mutandis, Ramishvili and Kokhreidze, cited above, § 100). 129. In the light of the above considerations, the Court concludes that the imposition of such a stringent and humiliating measure on the applicant during the proceedings before the Court of Appeal, which was not justified by any real security risks, amounted to degrading treatment. There has accordingly been a violation of Article 3 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 2 OF THE CONVENTION 130. The applicant complained that the principles of equality of arms and of the presumption of innocence were violated by his placement in a metal cage during the appeal proceedings. He invoked Article 6 §§ 1 and 2 of the Convention, which in so far as relevant, provides: “1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... by [a] ... tribunal. ... 2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.” A. Admissibility 131. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. B. Merits 1. The parties' submissions (a) The Government 132. The Government submitted that Article 6 § 1 spoke about the possibility to participate effectively in a trial and not about the feelings that a person may experience. The applicant's placement in the cage did not in itself violate the principle of equality of arms. The applicant failed to mention any circumstance showing that he was placed in an unequal position vis-à-vis his opponents. In reality he was able to participate effectively in the trial, to submit evidence, to call and examine witnesses, to examine the witnesses against him, to file motions and to communicate without any restrictions with his two lawyers, who were not placed in a cage. In support of their submissions, the Government referred to the case of Auguste v. France (no. 11837/85, Commission Report of 7 June 1990, Decisions and Reports 69, p. 104). 133. The Government further submitted that the applicant's placement in a metal cage did not in itself violate the principle of the presumption of innocence. Nor did it suggest that the Court of Appeal or the parties and other participants in the proceedings had a preconceived idea about the applicant's guilt or regarded him as a criminal. (b) The applicant 134. The applicant submitted that the principle of equality of arms guaranteed by Article 6 § 1 was violated. In particular, his degrading state and continuous emotional suffering and feeling of shame caused by his placement in the cage before the eyes of the public did not allow him to focus on anything else, suppressed his will and essentially limited his ability to resist. Thus, he was deprived of the possibility to participate effectively in the trial. This was especially important since the Court of Appeal conducted a full examination of the case. The fact that he had a lawyer was not decisive, because he personally had to give evidence, including answering questions from the parties and the court. Furthermore, he did not feel himself to be an equal adversary in his own eyes and from the very beginning of the trial he felt that he was a lost party, especially since the Court of Appeal refused to release him from the cage. His procedural adversaries also felt superior to him. 135. The applicant further claimed that the principle of presumption of innocence protected a person's right not to be considered a criminal in the eyes of the public until his guilt had been proved. The Court of Appeal should have refrained from any actions which could give the public the impression that he was guilty. However, the Court of Appeal decided to keep him in a metal cage, in spite of the fact that this could actually create such an impression, since persons kept in the cage were commonly identified with serious criminals. 2. The Court's assessment 136. The Court reiterates that the principles of equality of arms and of the presumption of innocence are specific elements of the wider concept of a fair trial in criminal proceedings (see Ekbatani v. Sweden, 26 May 1988, § 30, Series A no. 134, and Deweer v. Belgium, 27 February 1980, § 56, Series A no. 35). The former principle implies that each party must be afforded a reasonable opportunity to present his case – including his evidence – under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent (see Dombo Beheer B.V. v. the Netherlands, 27 October 1993, § 33, Series A no. 274), while the latter principle will be violated if a judicial decision concerning a person charged with a criminal offence reflects an opinion that he is guilty before he has been proved guilty according to law. It suffices, even in the absence of any formal finding, that there is some reasoning suggesting that the court regards the accused as guilty (see Minelli v. Switzerland, 25 March 1983, §§ 27 and 37, Series A no. 62). 137. The Court notes that, in a case concerning the appearance of an accused before a criminal court in a “glass cage”, no violation of the right to a fair trial or of the presumption of innocence was found by the Commission. In that case the Commission noted that this was a permanent security measure used for other criminal cases, that the accused was able to communicate confidentially with his lawyer, that he was able to communicate with the court and that he was not in an unfavourable position in relation to the prosecution or the jury (see Auguste, cited above). The Commission came to a similar conclusion in a case where an accused appeared before the court on a stretcher (see Meerbrey v. Germany (dec.), no. 37998/97, Commission Decision of 12 January 1998, unreported). 138. In the present case, the Court admits that, as already indicated above, the applicant's placement in a metal cage could have had an impact on his powers of concentration and mental alertness. It notes, however, that the applicant benefited from the assistance of two lawyers. Nothing suggests that the applicant's placement in a metal cage made it impossible for him to communicate confidentially and freely with his lawyers or to communicate freely with the court. The applicant himself did not make such allegations either. The applicant was therefore able to defend his case effectively and it cannot be said that the security measure in question placed him at a substantial disadvantage vis-à-vis the prosecution or the civil plaintiff. Furthermore, as already indicated above, the metal cage was a permanent security measure used for all criminal cases examined in the Criminal and Military Court of Appeal. Therefore, the imposition of this measure does not suggest that the Court of Appeal regarded the applicant as guilty. 139. The Court undoubtedly disapproves the use of such an indiscriminate and humiliating security measure in respect of the applicant, which it has found to be unacceptable in the light of the requirements of Article 3 of the Convention. Nevertheless, it cannot be said that the principles of equality of arms or of the presumption of innocence as guaranteed by Article 6 §§ 1 and 2 of the Convention were violated. 140. Accordingly, there has been no violation of Article 6 §§ 1 and 2 of the Convention. IV. ALLEGED VIOLATION OF ARTICLE 6 § 3 (d) OF THE CONVENTION 141. The applicant complained that the law failed to ensure equality between the parties in the matter of calling witnesses since, according to Article 271 of the Code of Criminal Procedure (“CCP”), the prosecution was free to choose the witnesses it wished to call without any prior leave by the court, while the defence was obliged to seek such leave. The applicant further complained that the Court of Appeal rejected his request to call witnesses K.S. and S.H. He invoked Article 6 § 3 (d) of the Convention, which in so far as relevant, provides: “3. Everyone charged with a criminal offence has the following minimum rights: ... (d) ... to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ...” Admissibility 1. Equality under the law (a) The parties' submissions 142. The Government submitted that the applicant's interpretation of the relevant provisions of the CCP was erroneous. In reality, the prosecution did not enjoy any advantage in the disputed matter. In particular, Article 271 § 1 of the CCP did not impose an obligation on the courts to call all the witnesses on the prosecution's list. Furthermore, it was not true that only the attendance of witnesses proposed by the defence but not the prosecution required the court's leave: both the indictment and motions filed during the proceedings were to be examined by the courts pursuant to the procedure prescribed by Articles 102, 331 and 391 of the CCP and the courts were free to decide whether or not to call a particular witness. 143. The applicant submitted that there was no equality guaranteed under the law between the parties in the matter of calling witnesses. In particular, Article 271 § 1 of the CCP obliged the courts to summon all the persons mentioned in the prosecution's list of witnesses which was annexed to the indictment. The prosecutor did not have to file a motion seeking leave to call these persons and the question of whether they had to be called was not a matter of consideration by the court. On the other hand, if the defence wanted to call witnesses, it had to seek the court's leave, which put the defence on an unequal footing with the prosecution. Article 331 of the CCP invoked by the Government spoke about “new” evidence and it was true that, as far as the calling of “additional” witnesses was concerned, the domestic law created equal opportunities for both parties. However, as far as the evidence gathered during the investigation was concerned, including the testimonies of witnesses mentioned in the annex to the indictment, this evidence was subject to examination in court by all means. There has never been a single case in which the courts considered the matter of calling or not calling the persons indicated in the prosecution's list. (b) The Court's assessment 144. The Court reiterates that Article 6 § 3 (d) does not require the attendance and examination of every witness on the accused's behalf. Its essential aim, as indicated by the words “under the same conditions”, is a full “equality of arms” in the matter (see Engel and Others v. the Netherlands, 8 June 1976, § 91, Series A no. 22; Bönisch v. Austria, 6 May 1985, § 32, Series A no. 92; and Vidal v. Belgium, 22 April 1992, § 33, Series A no. 235 ‑ B). 145. In the present case, the applicant argued that the prosecution was, by virtue of the law, in a more advantageous position because it was entitled to submit a list of witnesses whom the courts were obliged to call, while the defence on each and every occasion had to ask for the court's leave. 146. The Court observes that, pursuant to Article 271 § 1 of the CCP, the prosecution is entitled to submit to the court a list of persons subject to be called to court, which features as an annex to the indictment. This list includes the persons who were questioned as witnesses during the investigation in connection with the criminal proceedings. It is true that Article 271 § 1 literally states “a list of persons subject to be called to court” (emphasis added). However, this does not imply that the courts are obliged to call all the witnesses on that list. Nor is there any other provision in the CCP which would impose such an obligation on the courts. 147. Furthermore, contrary to what the applicant claims, the court does consider the question of whether or not to call the witnesses on the prosecution's list when, pursuant to Article 293 § 2 of the CCP, it decides to set the case down for trial. Thus, it cannot be said that all the witnesses on the prosecution's list are automatically called to court. This question lies within the court's discretion, as does the question of calling witnesses on behalf of the defence. In such circumstances, the Court concludes that the Armenian criminal procedure law in itself does not fail to ensure equality between the prosecution and the defence in the matter of calling witnesses. 148. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. 2. The refusal to call witnesses K.S. and S.H. 149. The Court reiterates that, as a general rule, it is for the national courts to assess the evidence before them as well as the relevance of the evidence which defendants seek to adduce. More specifically, Article 6 § 3 (d) leaves it to them, again as a general rule, to assess whether it is appropriate to call witnesses, in the “autonomous” sense given to that word in the Convention system (see Perna v. Italy [GC], no. 48898/99, § 29, ECHR 2003 ‑ V). The national courts enjoy a margin of appreciation allowing them, with respect for the Convention requirements, to establish whether the hearing of witnesses for the defence is likely to be of assistance in discovering the truth and, if not, to decide against the calling of such witnesses (see Payot and Petit v. Switzerland, Commission decision of 2 September 1991, unreported). As already indicated above, Article 6 § 3 (d) does not require the attendance and examination of every witness on the accused's behalf (see Vidal, cited above, § 33). 150. In the present case, the applicant complained about the Court of Appeal's refusal to call two witnesses, accountants K.S. and S.H. The Court notes, however, that accountant K.S. had already been called and examined in the District Court (see paragraphs 14 and 20 above). Therefore, it does not find the Court of Appeal's refusal to call additionally that witness unreasonable. As regards accountant S.H., the Court of Appeal justified its refusal with the fact that it was unnecessary to call her in this particular case. The Court does not consider that, in doing so, the Court of Appeal overstepped its margin of appreciation or acted arbitrarily, taking into account that the applicant's conviction was based on numerous pieces of evidence presented and examined in court, including two court-ordered accounting expert opinions and the statements of the relevant accounting experts and accountant K.S (see paragraph 14 above). 151. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 152. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 153. The applicant claimed 20,000 euros (EUR) in respect of non-pecuniary damage. He further argued that as a result of a trial conducted in breach of the guarantees of Article 6 of the Convention he was ordered to pay damages to the victim in the amount of AMD 23,063,108 and USD 119,000. Furthermore, because of his deprivation of liberty he lost earnings for the period between May 2003 and April 2007 in the amount of EUR 36,000. The applicant claimed these amounts in respect of pecuniary damage. 154. The Government claimed that the applicant failed to produce any evidence to substantiate the non-pecuniary damage allegedly suffered by him. Furthermore, there was no causal link between the violations alleged and the pecuniary damage claimed. Besides, his claims that the alleged breaches of Article 6 led to his wrongful conviction and resulted in lost earnings were of a speculative nature. 155. The Court notes that the applicant's deprivation of liberty prior to his conviction was not the object of the present application. There is therefore no causal link between the violations found and the applicant's claim for lost earnings for that period. Furthermore, as regards the applicant's claim for pecuniary damage resulting from a breach of the guarantees of Article 6, the Court observes that the applicant's complaints under that provision were rejected. It therefore dismisses the applicant's claims for pecuniary damage. On the other hand, the Court considers that the applicant has undeniably suffered non-pecuniary damage as a result of the violations found. Ruling on an equitable basis, it awards the applicant EUR 16,000 in respect of non-pecuniary damage, to be paid to the applicant's daughter, Ms Arusyak Harutyunyan. B. Costs and expenses 156. The applicant did not claim any costs and expenses. Accordingly, no award is made under this head. C. Default interest 157. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention. It observed in particular that, given the number of serious illnesses from which the applicant suffered, he had clearly been in need of regular care and supervision. There was, however, no medical record to prove that the surgery recommended by his doctors had ever been carried out. There was no record in the applicant’s medical file of his receiving any check-up or assistance from the detention facility’s medical staff. Especially worrying was the fact that his heart attack in July 2004 had coincided with several unsuccessful attempts by his lawyer to draw the authorities’ attention to the applicant’s need for medical care. In any event, the Court pointed out, a failure to provide requisite medical assistance in detention could be incompatible with Article 3 of the Convention even if it did not lead to a medical emergency or otherwise cause severe or prolonged pain. The applicant was clearly in need of regular medical care and supervision, which was denied to him over a prolonged period. His lawyer’s complaints had met with no substantive response and his own requests for medical assistance had gone unanswered. This must have caused him considerable anxiety and distress, beyond the unavoidable level of suffering inherent in detention. |
194 | Prohibition of discrimination (Article 14 of the Convention) | II. RELEVANT DOMESTIC LAW AND PRACTICE A. The Social Security Contributions and Benefits Act 1992 31. Housing Benefit is a means tested benefit provided under section 130 of the Social Security Contributions and Benefits Act 1992 and subordinate regulations. It is a financial payment available to claimants on low incomes who meet certain eligibility criteria. Its purpose is to help claimants with their rental costs whether they rent private or social housing. There is a prescribed mechanism for determining in each case the appropriate maximum Housing Benefit. 32. Regulation B13 was introduced into the Housing Benefit Regulations 2006 (SI 2006/213) in 2012. The Regulation provides for adjustment of the eligible rent and “Appropriate maximum Housing Benefit” in the area of social sector housing. Where the number of bedrooms in a dwelling exceeds that to which a claimant is entitled under the relevant provisions, a deduction is calculated in the claimant’s entitlement to benefits. The deduction is: 14 % where the number of bedrooms in the dwelling exceeds by one the number of bedrooms to which the claimant is entitled; and 25 % where the number of bedrooms in the dwelling exceeds by two or more the number of bedrooms to which the claimant is entitled. 33. The claimant is entitled to one bedroom for each of the following categories of person whom the relevant authority is satisfied occupies the claimant’s dwelling as their home: “(a) a couple (within the meaning of Part 7 of the Act); (b) a person who is not a child; (ba) a child who cannot share a bedroom; (c) two children of the same sex; (d) two children who are less than ten years old; (e) a child... The claimant is entitled to one additional bedroom in any case where - (a) a relevant person is a person who requires overnight care; or (b) a relevant person is a qualifying parent or carer. ... (9) In this regulation ‘relevant person’ means - (a) the claimant; (b) the claimant’s partner; (c) a person (“P”) other than the claimant or the claimant’s partner who is jointly liable with the claimant or the claimant’s partner (or both) to make payments in respect of the dwelling occupied as the claimant’s home; (d) P’s partner.” B. Discretionary Housing Payments 34. There is also a statutory scheme for enabling Discretionary Housing Payments (DHPs) to be made to persons who are entitled to Housing Benefit and/or some other benefits. According to the Discretionary Financial Assistance Regulations (set out in Statutory Instrument 2001/1167), a payment may be made for such period as the authority considers appropriate in the particular circumstances of the case, and the authority is required to give reasons for its decision. 35. There is no statutory right of appeal, but such decisions are in principle subject to judicial review. The practice is for the Department of Work and Pensions to make an annual DHP grant to local authorities in respect of their anticipated expenditure. 36. In 2013 the Government issued a DHP guidance manual and good practice guide to local authorities. It was summarised in an Appendix to the Supreme Court judgment in the present cases (see paragraph 22 above) as follows: “29. This document of April 2013 (the Discretionary Housing Payments Guidance Manual) (“the DHP Guidance Manual”) contains very full guidance as to the use of DHPs. It reminds authorities, at para 1.10, that their DHP funds are cash limited. It reviews the whole scheme. It canvasses the possibility of allowing applications in advance from persons affected by the [Housing Benefit], at paras 4.5-6, and making an award not limited in time to a disabled claimant likewise affected, at para 5.3. A “Good Practice Guide” is included in the DHP Guidance Manual. It contains a substantial discussion of the [Housing Benefit]. It states: “1.10 The Government has provided additional funding towards DHPs following the introduction of the benefit cap. This additional funding is intended to support those claimants affected by the benefit cap who, as a result of a number of complex challenges, cannot immediately move into work or more affordable accommodation.” Specific types of case are then enumerated, at para 1.11, and carefully discussed, and worked examples are given. I should note these passages: “2.5 For claimants living in specially adapted accommodation, it will sometimes be more cost-effective for them to remain in their current accommodation rather than moving them into accommodation which needs to be adapted. We therefore recommend that local authorities identify people who fall into this group and invite a claim for DHPs. 2.7 The allocation of the additional funding for disabled people broadly reflects the impact of this measure and the additional funding needed to support this group. However, due to the discretionary nature of the scheme, [Local Authority]’s should not specifically exclude any group affected by the removal of the spare room subsidy or any other welfare reform. It is important that LAs are flexible in their decision making.” Other types of case discussed include adopters (paras 2.9-11) and foster carers, in particular (para 2.13) carers for two or more unrelated foster children. 30. At paras 5.4-5.5 the Good Practice Guide poses a series of practical questions under two heads, “The household’s medical circumstances, health or support needs” and “Other circumstances”. The bullet points under the latter head (13 in number) demonstrate a series of different cases, none of them necessarily involving disability, in which the claimant may encounter particular difficulty or hardship in seeking alternative accommodation in response to the reduction in his/her [Housing Benefit] which the local authority may think it right to consider in deciding whether to make an award of DHP. I will just set out the first two instances: “Is the claimant fleeing domestic violence? This may mean they need safe accommodation on an emergency basis so the concept of having time to shop around for a reasonably priced property is not appropriate. Does the household have to live in a particular area because the community gives them support or helps them contribute to the district?” C. The Human Rights Act 1998 (“HRA”) 37. Pursuant to section 6 of the HRA, it is unlawful for a public authority to act in a way which is incompatible with a Convention right. D. The Equality Act 2010 38. Section 149 of the Equality Act introduced the Public Sector Equality Duty. It provides that: “(1) A public authority must, in the exercise of its functions, have due regard to the need to— (a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act; (b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; (c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it. ... (3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to - (a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic; (b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it; (c) encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.” 39. Disability and sex are among the protected characteristics set out in Section 149 (7) of the Act. E. Relevant case-law 40. In Burnip v. Birmingham City Council and others ([2012] EWCA Civ 629) the Court of Appeal on 15 May 2012 first examined the issue of discrimination in the context of the ‘bedroom tax’. The court’s conclusions were later summarised as follows by the Court of Appeal in the second applicant’s case: “32. Burnip concerned two cases of single severely disabled persons occupying two bedroom flats, and one family with three children including two severely disabled daughters occupying a four bedroom flat. In the third case ( Gorry ), it was inappropriate for the two disabled daughters aged 8 and 10 to share a bedroom because of their disabilities. In each case, their Housing Benefit had been reduced by the effect of [...] Regulation B13. The Court of Appeal (Maurice Kay and Hooper LJJ and Henderson J) held that the claimants had established a prima facie case of discrimination under Article 14 of the ECHR, and that the Secretary of State had failed to establish objective and reasonable justification for the discriminatory effect of the statutory criteria (paragraph 24 of Maurice Kay LJ’s judgment). Henderson J (with whom the other members of the court agreed) held that DHPs could not be regarded as a complete or satisfactory answer to the problem (paragraphs 46 and 64). He also held in paragraph 64 that there was no question of a general exception from the normal bedroom test for disabled people of all kinds. The exception was sought for only a very limited category of claimants, namely those with a disability so severe that an extra bedroom is needed for a carer to sleep in, or in Gorry’s case where separate bedrooms were needed for children whose disabilities were so severe they could not be reasonably expected to share a single room. He made clear that such cases were by their very nature likely to be relatively few in number, easy to recognise, not open to abuse, and unlikely to undergo change or need regular monitoring.” 41. In the judgment of Burnip itself, the Court of Appeal commented in more detail on why it could not regard DHP’s as a “complete or satisfactory answer to the problem”: “46. ...This follows from the cumulative effect of a number of separate factors. The payments were purely discretionary in nature; their duration was unpredictable; they were payable from a capped fund; and their amount if they were paid at all, could not be relied upon [to replace] the full amount of the shortfall. To recognise these shortcomings is not in any way to belittle the valuable assistance that [DHPs] are able to provide, but is merely to make the point that, taken by themselves, they cannot come anywhere near providing an adequate justification for the discrimination in cases of the present type. 47. A further aspect of the problem is that housing, by its very nature, is likely to be a long term commitment. This is particularly so in the case of a severely disabled person, because of the difficulty in finding suitable accommodation and the probable need for substantial physical alternations to be made to the property in order to adapt it to the person’s needs. Before undertaking such a commitment, therefore, a disabled person needs to have a reasonable degree of assurance that he will be able to pay the rent for the foreseeable future, and that he will not be left at the mercy of short term fluctuations in the amount of his housing-related benefits. For the reasons which I have given, [DHP’s] cannot in practice provide a disabled person with that kind of reassurance.” 42. In R (Hurley and others) v. Secretary of State for Work and Pensions [2015] EWHC 3382 (Admin), the High Court considered a part of the Housing Benefit Regulations 2006 which introduced a limit (a ‘cap’) on the total amount of benefits an individual could receive. The claimants provided unpaid care to severely disabled persons for at least 35 hours per week, for which they received a “Carer’s Allowance”. That allowance was considered a benefit and so ‘capped’ as a result of the Regulations, resulting in a reduction in the amount that the claimants received. 43. One of the claimants cared for her disabled grandmother in London but as a result of the reduction in her benefits fell into debt with her rent payments and was evicted with her four children from her local authority flat. She was offered homeless accommodation in Birmingham, but refused this as she could not have cared for her Grandmother if she moved to that city with her family. She moved with her children to live in one bedroom in her Grandmother’s house in London in “intolerable” conditions (see § 30). She applied to two local, London boroughs for DHP who refused her request on the basis that they had run out of DHP funds (see § 30). 44. In its judgment of 15 May 2019 in R (on the application of DA and others) (Appellants) v. Secretary of State for Work and Pensions (Respondent), and R (on the application of DS and others (Appellants) v. Secretary of State for Work and Pensions (Respondent) [2019] UKSC 21 the Supreme Court examined appeals brought by various lone parent mothers and their young children to challenge legislative provisions known as the ‘benefit cap’, which capped specified welfare benefits at a certain amount per household. 45. The Supreme Court considered the appropriate test by which to assess the justification under Article 14 for “an economic measure introduced by the democratically empowered arms of the state...” (see § 55). Lord Wilson giving the lead judgment stated: “65. ... there was - and there still remains - clear authority both in the Humphreys case and in the bedroom tax case for the proposition that [...] in relation to the government’s need to justify what would otherwise be a discriminatory effect of a rule governing entitlement to welfare benefits, the sole question is whether it is manifestly without reasonable foundation. Let there be no future doubt about it .” 46. Lady Hale and Lord Kerr dissented. Lady Hale opined: “147. Lord Kerr is surely right to question whether the test which the Strasbourg court will apply in matters of socio-economic policy should also be applied by a domestic court. The Strasbourg court applies that test, not because it is necessarily the proper test of proportionality in this area, but because it will accord a “wide margin of appreciation” to the “national authorities” in deciding what is in the public interest on social or economic grounds. The national authorities are better able to judge this because of their “direct knowledge of their society and its needs” (see Stec, para 52). It does not follow that national courts should accord a similarly wide discretion to national governments (or even Parliaments). The margin of appreciation is a concept applied by the Strasbourg court as part of the doctrine of subsidiarity. The standard by which national courts should judge the measures taken by national governments is a matter for their own constitutional arrangements. 148. Not only that, it has been noted that, in Stec, the Grand Chamber cited James v United Kingdom (1986) 8 EHRR 123 as authority for its “manifestly without reasonable foundation” standard. But in James, it is fairly clear that the Strasbourg court drew a distinction between two questions: first, was the measure “in the public interest” for the purpose of A1P1 (or, in article 8 terms, does it pursue a legitimate aim); and second, was there a reasonable relationship of proportionality between the means employed and the aim sought to be realised. This latter requirement had been expressed in Sporrong and Lönnroth v Sweden 5 EHRR 35, at para 69, as “whether a fair balance was struck between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights” (see James, para 50). The “manifestly without reasonable foundation” standard was applied to the first but not the second question.” III. RELEVANT INTERNATIONAL AND EUROPEAN MATERIAL A. The United Nations Convention on Rights of Persons with Disabilities 47. The United Kingdom signed the United Nations Convention on the Rights of Persons with Disabilities on 30 March 2007 and ratified it on 8 June 2009. The purpose of the Convention is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity (for details see Guberina v. Croatia, no. 23682/13, §§ 34 ‑ 37), 22 March 2016). 48. Article 28 of the Convention states: “1. States Parties recognize the right of persons with disabilities to an adequate standard of living for themselves and their families, including adequate food, clothing and housing, and to the continuous improvement of living conditions, and shall take appropriate steps to safeguard and promote the realization of this right without discrimination on the basis of disability.” 49. In its concluding observations on the initial report of the United Kingdom under the Convention of 3 October 2017 (CPRD/C/GBR/CO/1), the Committee on the Rights of Persons with Disabilities raised concerns under Article 28 of the Convention about the impact of austerity measures and anti-poverty initiatives introduced following the financial crisis in 2008/9 which “resulted in severe economic constraints among person with disabilities and their families”. B. The Council of Europe Convention on preventing and combating violence against women and domestic violence (the “Istanbul Convention”) 50. The United Kingdom signed the Istanbul Convention on 8 June 2012. It has not ratified the Convention, nor brought it into force. The Convention aims to protect women against all forms of violence, and prevent, prosecute and eliminate violence against women and domestic violence. It also aims to contribute to the elimination of all forms of discrimination against women and promote substantive equality between women and men, including by empowering women. 51. Article 18 of Chapter IV “Protection and support”, states that: “2. Parties shall take the necessary legislative or other measures, in accordance with internal law, to ensure that there are appropriate mechanisms to provide for effective co-operation between all relevant state agencies, including the judiciary, public prosecutors, law enforcement agencies, local and regional authorities as well as non-governmental organisations and other relevant organisations and entities, in protecting and supporting victims and witnesses of all forms of violence covered by the scope of this Convention, including by referring to general and specialist support services .... 3. Parties shall ensure that measures taken pursuant to this chapter shall: –be based on a gendered understanding of violence against women and domestic violence and shall focus on the human rights and safety of the victim; –be based on an integrated approach which takes into account the relationship between victims, perpetrators, children and their wider social environment; –aim at avoiding secondary victimisation; –aim at the empowerment and economic independence of women victims of violence ...” THE LAW I. JOINDER OF THE APPLICATIONS 52. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL NO. 1 53. The first applicant complained that she had been discriminated against on the basis of her daughter’s disability. She relied in that connection on Article 14 of the Convention in conjunction with Article 8 and Article 1 Protocol 1. 54. The second applicant complained that she had been discriminated against on the basis of her gender as the victim of gender based violence. She relied in that connection on Article 14 of the Convention in conjunction with Article 8. 55. The Government have not disputed that disability and gender are identifiable characteristics and that the applicants can claim to have been discriminated against on the basis of those characteristics. In this connection it recalls that there is no doubt the first applicant may claim to have been discriminated against as a carer for a disabled person (see Guberina, cited above, §§ 76-79). 56. The applicants have complained under Article 14 in conjunction either with Article 8 and/or with Article 1 Protocol 1. However, the Court is the master of the characterisation to be given in law to the facts of the case and does not consider itself bound by the characterisation given by an applicant or a government (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 126, 20 March 2018). It notes that the gravamen of the applicants’ complaints is their alleged discriminatory treatment contrary to Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 resulting from the application of Regulation B13 governing Housing Benefits, and the DHP scheme. 57. Therefore, it considers that the cases fall to be examined under Article 14 in conjunction with Article 1 of Protocol No. 1. Those provisions read as follows: Article 14 “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” Article 1 Protocol 1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” A. Admissibility 1. The parties’ submissions 58. The Government argued that the Court has previously considered inadmissible ratione materiae complaints about the failure of public authorities to take positive steps to ensure that special provision be made for disabled people to provide them with support for ordinary living, even where domestic law provided for or even required such steps to be taken. The applicant’s cases are therefore inadmissible for the same reason. 59. They also submitted that the applicants have received financial support to meet their housing needs and there is no significant difference between Housing Benefit and DHP. Accordingly, the applicants can no longer be considered victims within the meaning of the Convention, and for the same reasons they have not suffered any significant disadvantage. 60. The applicants argued that their complaints were admissible as they had been directly and disproportionately affected by the reduction in their Housing Benefit under Regulation B13 due to their disability and gender. They submitted that there were significant differences between Housing Benefit under Regulation B13 and DHP, both in terms of the manner of allocation and the available review schemes, which meant that they were put at a disadvantage by applying for DHP. 61. They considered that they remained victims from the perspective of the Convention as the domestic courts have not recognised any violation nor awarded them compensation. Moreover, in light of the differences between the two benefit regimes, they had suffered a ‘significant disadvantage’ by being made subject to the DHP regime and their cases were therefore admissible. 2. The Court’s assessment 62. In respect of the Government’s argument that the applicants complaints are inadmissible ratione materiae, the Court notes that the Government has made reference to cases concerning treatment of disabled persons. The Court therefore considers that these arguments relate to the first applicant’s complaint. The Government relied on a series of inadmissibility decisions: Botta v. Italy, 24 February 1998, Reports of Judgments and Decisions 1998 ‑ I, Zehnalová and Zehnal v. the Czech Republic (dec.), no. 38621/97, Sentges v. the Netherlands (dec.), no. 27677/02, 8 July 2003 and Farcas v. Romania, no. 32596/04, 14 September 2010). The Court found those cases to be inadmissible because they concerned complaints of a general nature, such as a failure to provide disabled persons with access to beach facilities or public buildings (see Botta and Zehnalová and Zehnal, cited above), or they were unsubstantiated (see Sentges and Farcas, cited above). As such, they are significantly different from the present cases and are not relevant to the Court’s decision on the admissibility of the present applications. 63. According to the Court’s well established case-law the prohibition of discrimination enshrined in Article 14 applies generally in cases under Article 1 of Protocol No. 1. where a Contracting State has in force legislation providing for the payment as of right of a welfare benefit - that legislation must be regarded as generating a proprietary interest falling within the ambit of Article 1 of Protocol No. 1 for persons satisfying its requirements (see Vrountou v. Cyprus, no. 33631/06, § 64, 13 October 2015). To assess admissibility the question is whether, but for the condition of entitlement under domestic law about which the applicant complains, he or she would have had a right enforceable under domestic law, to receive the benefit in question (see Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, § 55, ECHR 2005 ‑ X). It follows that the first applicant’s complaint falls within the scope of Article 1 Protocol No. 1 and that is sufficient to render Article 14 of the Convention applicable, and the complaint admissible ratione materiae. 64. The Court also rejects the Government’s argument that the applicants are not victims from the perspective of Article 34 of the Convention. A decision or measure favourable to the applicant is not, in principle, sufficient to deprive him or her of his or her status as a “victim” for the purposes of Article 34 of the Convention unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for the breach of the Convention (see Scordino v. Italy (no. 1) [GC], no. 36813/97, § 180, ECHR 2006 ‑ V; Gäfgen v. Germany [GC], no. 22978/05, § 115, ECHR 2010; Nada v. Switzerland [GC], no. 10593/08, § 128, ECHR 2012). The Court does not consider that permitting the applicants to apply for DHP could be considered a measure which was favourable to them in this context. It also notes that the national authorities have not acknowledged, either expressly or in substance a violation and then afforded redress for a breach of the Convention. Accordingly, the Court considers that the applicants can be considered victims under Article 34 of the Convention. 65. As to whether the applicants suffered a ‘significant disadvantage’, the Court recalls that the admissibility criterion in Article 35 § 3 (b) reflects the view that a violation of a right, however real from a purely legal point of view, should attain a minimum level of severity to warrant consideration by an international court. The assessment of this minimum level is, in the nature of things, relative and depends on all the circumstances of the case. The severity of a violation should be assessed, taking account of both the applicant’s subjective perceptions and what is objectively at stake in a particular case. In the context of allegations of discrimination, the question of what amounts to a ‘significant disadvantage’ for an applicant requires particularly careful scrutiny. Moreover, an alleged violation of the Convention may concern important questions of principle and thus cause a significant disadvantage without affecting an applicant’s pecuniary interest. It may also be that, even in the absence of a “significant disadvantage”, a question of principle raised by an application is of a general character affecting the observance of the Convention, such that, under the terms of the second element in Article 35 § 3 (b), “respect for human rights defined in the Convention ... requires an examination of the application on its merits” (see Daniel Faulkner v. the United Kingdom, no. 68909/13, § 26, 6 October 2016, with further references). 66. In the present case, what is at a stake, taking into consideration the applicants’ subjective perceptions and the discrimination alleged, raises general questions of principle which warrant consideration by the Court. Consequently, without needing to determine whether the applicant can be said to have suffered a “significant disadvantage”, the Court is led to dismiss the Government’s objections on the basis of the second element in Article 35 § 3 (b) of the Convention (see Daniel Faulkner, cited above, § 27). 67. The Court notes that the applications are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. B. Merits 1. The parties’ submissions (a) The applicants 68. The first applicant submitted that she had been discriminated against in the enjoyment of her rights under Article 14 and Article 1 Protocol 1 on the ground of disability because she had been treated less favourably than others as regards entitlement to Housing Benefit. Those who do not have objective housing needs based on their disability will receive a contribution which could cover all of their housing needs, whereas her Housing Benefit contribution does not cover her housing needs. This amounts to a failure to make a reasonable accommodation in the case of disability within the meaning of Çam v. Turkey, no. 51500/08, § 84, 23 February 2016. 69. That difference in treatment was not justified because justification requires a reasonable relationship of proportionality between the legitimate aim and the means; in her case it had been disproportionate. Justification of discrimination on the grounds of disability requires “very weighty reasons”; the Government has not put forward any weighty reasons which could have justified the discrimination. 70. The second applicant submitted that by reducing her Housing Benefit allocation, the government had discriminated against her on the basis of her gender within the meaning of Thlimmenos v. Greece ([GC], no. 34369/97, § 44, ECHR 2000 ‑ IV), as she was the victim of domestic violence and victims of domestic violence are overwhelmingly women. 71. That discrimination could not be justified. The aim of the Government in implementing the bedroom criteria was to reduce expenditure and encourage social sector tenants to move or to work, such an aim was legitimate but there was no rational connection between the aim and its application. As a consequence of the violence and threats from X, the applicant suffered from post-traumatic stress disorder, depression and suicidal ideation, was unable to work, and lived in constant fear. It was accepted by the Supreme Court that she needed to stay in her adapted accommodation as long as she needed it. DHP payments could not alleviate the disadvantage caused by the reduction in her Housing Benefit because they were discretionary and precarious, in contrast to the entitlement to a benefit. 72. Where there is prima facie gender discrimination, the arguments for justification must be subject to “strict scrutiny” and call for “weighty reasons”, not a justification of “manifestly without reasonable foundation” even in the context of allocation of benefits. It would only be appropriate to apply a test of “manifestly without reasonable foundation” where the measure was designed to correct a historic injustice, which was not so in her case. Applying the test of “strict scrutiny” and “weighty reasons” in her case meant that the reduction in her Housing Benefit was discriminatory. (b) The Government 73. The Government argued that the aim of the legislative measures was “saving of public funds in the context of a major state benefit” and “shifting the place of social security support in society”. Those are social and fiscal matters which were approved by Parliament. 74. The applicants had not been discriminated against since they have received financial support to meet their actual housing needs (and have received the same payment as the comparators); they have not been evicted from their homes and therefore they cannot contend that they have been discriminated against in the enjoyment of any possession. The scheme does not require the applicants to move out of their properties. It is designed to effect “behavioural changes” to incentivise families who feel they are under-occupying properties to move but there is no obligation to move and no reason for the applicants in the present cases to move. 75. The requirement for the applicants to apply for DHP cannot be considered discriminatory because there is no uncertainty about whether DHP funds can be allocated. Moreover, whilst payments under the scheme are discretionary, there is a limit on that discretion because local authorities must have regard to their general duties in law, including duties under the Convention. A refusal to grant DHP can be challenged before the courts and it is usual in the context of any benefit payment that applicants must make an application to receive it. The DHP scheme is appropriate and suitable for claimants who cannot mitigate the reduction in of their Housing Benefit by any other available measure (such as moving, working or taking in a lodger, which will be options also available to other disabled and non-disabled persons). Payment by DHP instead of Housing Benefit is therefore justified. 76. There has been no discrimination on the basis of Thlimmenos, cited above, because the principle in Thlimmenos cannot require a State to take positive steps to allocate a greater share of public resources to a particular person or group, and it has never been applied in the context of allocation of State benefits. The Court should apply an appropriate, prior limit in such cases by applying the principles of direct/indirect discrimination (see D.H. and Others v. the Czech Republic [GC], no. 57325/00, ECHR 2007 ‑ IV), or there must be a “significant difference” in treatment between the comparator groups. In the present cases, there has been no difference of treatment between the applicants and comparator groups. The measure limiting payment of Housing Benefit in some cases is neutral; the only place where a difference of treatment could arise is at the stage of deciding whether to make a DHP payment. However, it cannot be said that the decision at this stage of the proceedings is based solely on the status of disability or gender, and therefore that decision does not require “very weighty reasons” in order to be justified. 77. Even if the applicants have suffered discrimination, such discrimination is justified on the basis that it served a legitimate aim and was not “manifestly without reasonable foundation”, which is the relevant test concerning the margin of appreciation in light of the Supreme Court’s judgment. 2. Third party interveners (a) The Equality and Human Rights Commission 78. The Equality and Human Rights Commission (“EHRC”) is the United Kingdom’s national human rights institution. It intervened in both applicants’ cases. With reference to the Court’s case-law the EHRC considered that the Court takes a purposive and practical approach to Article 14. It outlined seven reasons related to the functioning of the DHP Scheme to explain how payments made under the scheme are discretionary and may not be awarded. The EHRC made reference to a number of international legal instruments including the Council of Europe Istanbul Convention, the UN Convention on the Rights of Persons with Disabilities and the UN Commission on the Elimination of All Forms of Discrimination against Women (CEDAW). In respect of the latter it noted that the United Kingdom’s sixth periodic CEDAW report relies on the existence of ‘Sanctuary Schemes’ to discharge its duty to protect women from gender based violence. (b) The AIRE Centre 79. The AIRE Centre is a non-governmental organisation running a specific project on obligations of states to victims of gender based and domestic violence, it intervened in the second applicant’s case. With reference to the Court’s case-law it considered that it was well-established that victims of domestic violence have a right to physical and moral integrity under Article 8 of the Convention. The Centre referred to the Council of Europe Istanbul Convention emphasising that this imposes an obligation on states to provide protection to victims. Finally, it underlined that domestic violence frequently raises issues of gender based discrimination and that there is a uniform acceptance of the fact that women and girls are the predominant victims of serious and life threatening forms of violence. 3. The Court’s assessment (a) The general principles 80. The Court reiterates that in the enjoyment of the rights and freedoms guaranteed by the Convention, Article 14 affords protection against different treatment, without an objective and reasonable justification, of persons in relevantly similar situations (see, among many other authorities, Burden v. the United Kingdom [GC], no. 13378/05, § 60, ECHR 2008). 81. The Court also recalls that the provisions of the Convention do not prevent Contracting States from introducing general policy schemes by way of legislative measures whereby a certain category or group of individuals is treated differently from others, provided that the interference with the rights of the statutory category or group as a whole can be justified under the Convention (see Andrejeva v. Latvia [GC], no. 55707/00, § 83, ECHR 2009 and Ždanoka v. Latvia [GC], no. 58278/00, § 112, ECHR 2006 ‑ IV). Indeed, measures of economic and social policy often involve the introduction and application of criteria which are based on making distinctions between categories or groups of individuals. 82. Furthermore, not every difference in treatment between persons in relevantly similar situations will entail a violation of Article 14. Only differences in treatment based on the grounds enumerated in that Article are capable of resulting in discrimination within the meaning of Article 14 ( see Carson and Others v. the United Kingdom [GC], no. 42184/05, § 61, ECHR 2010 and Clift v. the United Kingdom, no. 7205/07, §§ 56-57, 13 July 2010). Thus, the prohibition enshrined in Article 14 encompasses differences of treatment based on an identifiable characteristic, or “status”, (see Fábián v. Hungary [GC], no. 78117/13, § 113, 5 September 2017, with further references). In this regard, the Court has already held that a person’s health status, including disability and various health impairments, fall within the term “other status” in the text of Article 14 of the Convention (see Guberina, cited above, § 76 with further references). The Court has also considered that a discriminatory treatment of a person on account of the disability of his or her child, with whom he or she has close personal links and for whom he or she provides care, is a form of disability-based discrimination covered by Article 14 of the Convention (ibid., § 79). The Court has further held that victims of gender based violence may be able to invoke the protection of Article 14 in conjunction with the relevant substantive provisions of the Convention (see Opuz v. Turkey, no. 33401/02, ECHR 2009; Bălșan v. Romania, no. 49645/09, 23 May 2017). 83. For the purposes of Article 14, a difference of treatment based on a prohibited ground is discriminatory if it “has no objective and reasonable justification”, that is, if it does not pursue a “legitimate aim” or if there is no “reasonable relationship of proportionality between the means employed and the aim sought to be realised” (see Mazurek v. France, no. 34406/97, §§ 46 and 48, ECHR 2000 ‑ II). 84. Thus, the Contracting States must refrain from subjecting persons or groups to different treatment where, under the above principles, such treatment would qualify as discriminatory. However, this is not the only facet of the prohibition of discrimination in Article 14. The right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States, without an objective and reasonable justification, fail to treat differently persons whose situations are significantly different (see Thlimmenos, cited above, § 44; Runkee and White v. the United Kingdom, nos. 42949/98 and 53134/99, § 35, 10 May 2007; D.H. and Others v. the Czech Republic, cited above, § 175; Eweida and Others v. the United Kingdom, no. 48420/10, 15 January 2013; and Kurić and Others v. Slovenia [GC], no. 26828/06, § 288, ECHR 2012). The prohibition deriving from Article 14 will therefore also give rise to positive obligations for the Contracting States to make necessary distinctions between persons or groups whose circumstances are relevantly and significantly different. 85. The Court has also held that a policy or measure that has disproportionately prejudicial effects on a particular group may be considered discriminatory, regardless of whether the policy or measure is specifically aimed at that group. Thus, indirect discrimination prohibited under Article 14 may arise under circumstances where a policy or measure produces a particularly prejudicial impact on certain persons as a result of a protected ground, such as gender or disability, attaching to their situation. In line with the general principles relating to the prohibition of discrimination, this is only the case, however, if such policy or measure has no “objective and reasonable” justification (see, among other authorities, S.A.S. v. France [GC], no. 43835/11, § 161, ECHR 2014 (extracts), and D.H. and Others v. the Czech Republic, cited above, §§ 175 and 184-185). 86. Furthermore, Article 14 does not preclude States from treating groups differently even on otherwise prohibited grounds in order to correct “factual inequalities” between them. Moreover, in certain circumstances a failure to attempt to correct inequality through different treatment may in itself give rise to a breach of the Article (see Thlimmenos, cited above, § 44; Stec and Others, cited above, § 51; D.H. and Others v. the Czech Republic, cited above, § 175). 87. In the context of Article 1 of Protocol 1 alone, the Court has often held that in matters concerning, for example, general measures of economic or social strategy, the States usually enjoy a wide margin of appreciation under the Convention (see Fábián, cited above, § 115; Hämäläinen v. Finland [GC], no. 37359/09, § 109, ECHR 2014; Andrejeva, cited above, § 83). Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the Court will generally respect the legislature’s policy choice unless it is “manifestly without reasonable foundation”. 88. However, as the Court has stressed in the context of Article 14 in conjunction with Article 1 Protocol 1, although the margin of appreciation in the context of general measures of economic or social policy is, in principle, wide, such measures must nevertheless be implemented in a manner that does not violate the prohibition of discrimination as set out in the Convention and complies with the requirement of proportionality (see Fábián, cited above, § 115, with further references). Thus, even a wide margin in the sphere of economic or social policy does not justify the adoption of laws or practices that would violate the prohibition of discrimination. Hence, in that context the Court has limited its acceptance to respect the legislature’s policy choice as not “manifestly without reasonable foundation” to circumstances where an alleged difference in treatment resulted from a transitional measure forming part of a scheme carried out in order to correct an inequality (see Stec and Others, cited above, §§ 61-66; Runkee and White, cited above, §§ 40-41 and British Gurkha Welfare Society and Others v. the United Kingdom, no. 44818/11, § 81, 15 September 2016). 89. Outside the context of transitional measures designed to correct historic inequalities, the Court has held that given the need to prevent discrimination against people with disabilities and foster their full participation and integration in society, the margin of appreciation the States enjoy in establishing different legal treatment for people with disabilities is considerably reduced (see Glor v. Switzerland, no. 13444/04, § 84, ECHR 2009), and that because of the particular vulnerability of persons with disabilities such treatment would require very weighty reasons to be justified (see Guberina, cited above, § 73). The Court has also considered that as the advancement of gender equality is today a major goal in the member States of the Council of Europe, very weighty reasons would have to be put forward before such a difference of treatment could be regarded as compatible with the Convention ( Konstantin Markin v. Russia [GC], no. 30078/06, § 127, ECHR 2012). (b) Application to the present case (i) The issue 90. The Court notes at the outset that, as set out in paragraph 32 above, the changes made in the Housing Benefit Regulations entailed that where the number of bedrooms in a dwelling exceeded that to which a claimant was entitled under the relevant provisions, a deduction is calculated in the claimant’s entitlement to benefits. This applied to all beneficiaries under the scheme without any distinction by reference to their characteristics such as disability or gender. In the present case, the applicants have been treated in the same way as other recipients of the Housing Benefit in that their entitlements have been reduced on the same grounds and according to the same criteria as those of other recipients. Thus, the issue arising in this case is one of alleged indirect discrimination. 91. The question to be examined is whether there has been a discriminatory failure by the authorities of the respondent State to make a distinction in the applicants’ favour on the basis that their relevant circumstances were significantly different from those of other recipients of the Housing Benefit who were adversely affected by the contested policy. More specifically, the issue is whether, as a result of a failure to make a distinction, the impugned general measure, in the form of the legislative changes affecting the recipients of the Housing Benefit, was put in place in such a manner as to produce disproportionately prejudicial effects on the applicants because of their particular circumstances which, in respect of the first applicant, were linked to her daughter’s disability and, in respect of the second applicant, to her gender. (ii) The treatment of the applicants 92. As regards the effects of the measure, the Court observes that it was an anticipated consequence of the reduction of the Housing Benefit that all benefit recipients who experienced such a reduction could be at risk of losing their homes. Indeed, the Government argued that this precarity was the intention of the scheme; to incentivise families to move (see paragraph 74 above). The Court accepts the applicants’ arguments that in this respect, they were in a significantly different situation and particularly prejudiced by the policy because they demonstrated they had a particular need to be able to remain in their specifically adapted homes for reasons directly related to their status. In the case of the first applicant, loss of her home would cause exceptional hardship given her daughter’s severe mental and physical disabilities. In the case of the second applicant, loss of her home would risk her personal safety. Thus, for these reasons, the consequence of the measure was much more severe for the applicants than for others whose entitlement to Housing Benefit was reduced. 93. The legislative scheme also anticipated that those who experienced a reduction in their Housing Benefit would be able to mitigate their loss by taking in tenants and/or working (see paragraph 36 above). The Government has argued that these possibilities to make up for the reduction in Housing Benefit were available equally to disabled and non-disabled persons (see paragraph 75 above). However, the Court notes that because of their vulnerable status the applicants were significantly less able than other Housing Benefit recipients to mitigate their loss by taking in tenants or by working (see paragraphs 8 and 71 above). Accordingly, they did not have the same possibilities available to them to mitigate their loss as other recipients of Housing Benefit. 94. The Court concludes that in light of the above the applicants, having been treated in the same way as other recipients of Housing Benefit who were subject to a reduction in their Housing Benefit, were particularly prejudiced by that measure because their situation was significantly different for reasons of disability, as regards the first applicant, and gender, as regards the second applicant. 95. The Government have argued that they eliminated the failure to treat the applicants differently from other recipients of the Housing Benefit by providing the applicants with the option to apply for and receive DHP. The Court considers it would be possible to examine the provision of DHP from this perspective. However, as the domestic courts considered it more appropriate to examine this element in the context of justification for the treatment, the Court will follow the same approach. (iii) Whether the treatment was objectively and reasonably justified 96. Having established that the applicants, who were treated in the same way as other recipients of the Housing Benefit even though their circumstances were significantly different, were particularly prejudiced by the impugned measure – because they had a particular need to be able to remain in their specifically adapted homes for reasons directly related to their vulnerable status and were less able to mitigate the reduction in their Housing Benefit – the Court must ask whether the failure to take account of that difference was discriminatory. Such treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is no reasonable relationship of proportionality between the means employed and the aim sought to be realised (see Guberina, cited above, § 69). 97. In the circumstances of the present cases – where the alleged discrimination was on the basis of disability and gender, and did not result from a transitional measure carried out in good faith in order to correct an inequality – very weighty reasons would be required to justify the impugned measure in respect of the applicants (see paragraph 89 above). 98. As to the legitimate aim of the legislation, the domestic courts accepted that it was to curb public expenditure by ensuring that social sector tenants of working age who were occupying premises with more bedrooms than required should, wherever possible, move into smaller accommodation. The applicants also accepted this aim as legitimate in general terms (see paragraph 71 above). It therefore remains to be examined whether the treatment afforded to the applicants was justified on the basis that there was a reasonable relationship of proportionality between the means employed and the aim sought to be realised. 99. The applicants argued that the measure was disproportionate in its impact on them in the sense of not corresponding to the legitimate aim of the measure. It is true that the Government has not put forward any detailed reasons as to how imposing the measures on the applicants might achieve the stated aims of reducing benefit payments; managing housing local authority stock; and encouraging employment. It was accepted that the applicants should be able to receive DHPs in order that they could remain in their adapted housing (see paragraphs 25 and 26 above). Accordingly, it does not appear that the aims envisaged by the legislative changes could have been achieved by applying them to the applicants. 100. However, as with most complaints of alleged discrimination in a welfare or pensions system, the issue before the Court for consideration goes to the compatibility of the system with Article 14, not only to the individual facts or circumstances of the particular applicants or of others who are or might be affected by the legislation (see British Gurkha Welfare Society and Others, cited above, § 63). It is therefore appropriate to look at the system as a whole. (α) The first applicant 101. Turning to the scheme as a whole, with reference to the case of the first applicant, the Court finds that whilst it has been acknowledged that any move would be extremely disruptive and highly undesirable for the first applicant, it would not be in fundamental opposition to the recognised needs of disabled persons in specially adapted accommodation but without a medical need for an ‘extra’ bedroom to move into smaller, appropriately adapted accommodation. 102. In that context, the Court takes account of the Government’s decision to provide for those who did not fall under the exemptions set out in the Regulation to apply for DHP. The Court acknowledges that the DHP scheme had a number of significant disadvantages which were identified by the domestic courts, namely that the awards of DHP were purely discretionary in nature; their duration was uncertain; they were payable from a capped fund; and their amount could not be relied upon to replace the full amount of the shortfall (see paragraph 41 above). On the other hand, the scheme had some advantages in that it allowed local authorities to take individualised decisions, which the Court has identified as an important element to ensure proportionality (see a contrario Guberina ¸ cited above, § 93). Moreover, the awards of DHP are made subject to certain safeguards, in particular the requirement on local authorities to take their decisions in light of the Human Rights Act and their Public Sector Equality Duty which in the Court’s understanding would prevent them from refusing to award DHP where that could mean the applicant’s need for appropriately adapted accommodation was not met. The Court observes that the first applicant has in fact been awarded DHP for several years following the changes to the Housing Benefit Regulation. Whilst the DHP scheme could be characterised as not ensuring the same level of certainty and stability as the previous, unreduced Housing Benefit, its provision with attendant safeguards, amounts to a sufficiently weighty reason to satisfy the Court that the means employed to implement the measure had a reasonable relationship of proportionality to its legitimate aim. Accordingly, the difference in treatment identified in the case of the first applicant was justified. (β) The second applicant 103. In the case of the second applicant the Court notes that the legitimate aim of the present scheme – to incentivise those with ‘extra’ bedrooms to leave their homes for smaller ones – was in conflict with the aim of Sanctuary Schemes, which was to enable those at serious risk of domestic violence to remain in their own homes safely, should they wish to do so (see paragraphs 19-20 above). 104. Given those two legitimate but conflicting aims the Court considers that the impact of treating the second applicant, or others housed in Sanctuary Schemes, in the same way as any other Housing Benefit recipient affected by the impugned measure, was disproportionate in the sense of not corresponding to the legitimate aim of the measure. The Government have not provided any weighty reasons to justify the prioritisation of the aim of the present scheme over that of enabling victims of domestic violence who benefitted from protection in Sanctuary Schemes to remain in their own homes safely. In that context, the provision of DHP could not render proportionate the relationship between the means employed and the aim sought to be realised where it formed part of the scheme aimed at incentivising residents to leave their homes, as demonstrated by its identified disadvantages (see paragraph 102 above). 105. Accordingly, the imposition of Regulation B13 on this small and easily identifiable group has not been justified and is discriminatory. In coming to that conclusion, the Court also recalls that in the context of domestic violence it has found that States have a duty to protect the physical and psychological integrity of an individual from threats by other persons, including in situations where an individual’s right to the enjoyment of his or home free of violent disturbance is at stake (see Kalucza v. Hungary, no. 57693/10, § 53, 24 April 2012). (iv) Conclusion 106. There has accordingly been no violation of Article 14 in conjunction with Article 1 Protocol 1 of the Convention in respect of the first applicant. 107. There has been a violation of Article 14 in conjunction with Article 1, Protocol 1 of the Convention in respect of the second applicant. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 108. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 109. The second applicant claimed twelve thousand euros (EUR 12,000) in respect of non-pecuniary damage. 110. The Government considered that nothing in the second applicant’s case justified an award of just satisfaction. 111. The Court considers that the second applicant has undoubtedly suffered some distress and awards her ten thousand euros (EUR 10,000) in respect of non-pecuniary damage. B. Costs and expenses 112. The second applicant did not submit any claim for costs and expenses. Accordingly, the Court makes no award in that respect. C. Default interest 113. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 14 (prohibition of discrimination) of the Convention in conjunction with Article 1 (protection of property) of Protocol No. 1 in respect of the second applicant. It noted in particular that the regulation’s aim to encourage people to move was in conflict with the Sanctuary Scheme’s goal of allowing victims of gender based violence to stay in their homes. The impact of treating the second applicant in the same way as others subject to the new housing benefit rules was therefore disproportionate as it did not correspond to the legitimate aim of the measure. Moreover, the UK Government had not provided any weighty reasons to justify prioritising the aim of the scheme over that of enabling victims of domestic violence to remain in their homes. |
45 | Applications lodged by the parent whose child had been abducted by the other parent | II. RELEVANT INTERNATIONAL AND EUROPEAN UNION LAW 20. The relevant provisions of the Hague Convention, which entered into force in respect of Romania on 30 September 1992, read, in so far as relevant, as follows. Article 3 “The removal or the retention of a child is to be considered wrongful where – a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.” Article 4 “The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years.” Article 6 “A Contracting State shall designate a Central Authority to discharge the duties which are imposed by the Convention upon such authorities. [..]” Article 7 “Central Authorities shall co-operate with each other and promote co ‑ operation amongst the competent authorities in their respective State to secure the prompt return of children and to achieve the other objects of this Convention. In particular, either directly or through any intermediary, they shall take all appropriate measures – [..] f) to initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and, in a proper case, to make arrangements for organizing or securing the effective exercise of rights of access; [..]” Article 11 “The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children. If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay. If a reply is received by the Central Authority of the requested State, that Authority shall transmit the reply to the Central Authority of the requesting State, or to the applicant, as the case may be.” Article 12 “Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith. The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment. Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.” Article 13 “Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that – a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views. In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence.” Article 20 “The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.” 21. Council Regulation (EC) No. 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility (“the Regulation”), in so far as relevant reads as follows: Preamble (17)“In cases of wrongful removal or retention of a child, the return of the child should be obtained without delay, and to this end the Hague Convention of 25 October 1980 would continue to apply as complemented by the provisions of this Regulation, in particular Article 11. [...]” Article 11 “1. Where a person, institution or other body having rights of custody applies to the competent authorities in a Member State to deliver a judgment on the basis of the Hague Convention [..], in order to obtain the return of a child that has been wrongfully removed or retained in a Member State other than the Member State where the child was habitually resident immediately before the wrongful removal or retention, paragraphs 2 to 8 shall apply. [...] 3. A court to which an application for return of a child is made as mentioned in paragraph 1 shall act expeditiously in proceedings on the application, using the most expeditious procedures available in national law. Without prejudice to the first subparagraph, the court shall, except where exceptional circumstances make this impossible, issue its judgment no later than six weeks after the application is lodged. 4. A court cannot refuse to return a child on the basis of Article 13 (b) of the [...] Hague Convention if it is established that adequate arrangements have been made to secure the protection of the child after his or her return. 5. A court cannot refuse to return a child unless the person who requested the return of the child has been given an opportunity to be heard. 6. If a court has issued an order on non-return pursuant to Article 13 of the 1980 Hague Convention, the court must immediately either directly or through its central authority, transmit a copy of the court order on non-return and of the relevant documents, in particular a transcript of the hearings before the court, to the court with jurisdiction or central authority in the Member State where the child was habitually resident immediately before the wrongful removal or retention, as determined by national law. The court shall receive all the mentioned documents within one month of the date of the non-return order. 7. Unless the courts in the Member State where the child was habitually resident immediately before the wrongful removal or retention have already been seized by one of the parties, the court or central authority that receives [a copy of an order on non-return pursuant to Article 13 of the Hague Convention and of the documents relevant to that order] must notify it to the parties and invite them to make submissions to the court, in accordance with national law, within three months of the date of notification so that the court can examine the question of custody of the child. [..]” THE LAW I. ALLEGED VIOLATION OF ARTICLES 8 AND 6 OF THE CONVENTION 22. The applicants complained under Article 8 about the unfolding of Hague Convention proceedings, in particular that the requirement of expedition had not been observed by the domestic courts, that the first applicant had not been heard by the Romanian courts and that the Romanian Ministry in its capacity as Central Authority under the Hague Convention had not properly represented the applicants’ interests. 23. The applicants also complained under Article 6 § 1 that the proceedings had been lengthy and that the Romanian courts had delivered their judgments without hearing the first applicant. 24. In so far as relevant, Articles 8 and 6 § 1 provide as follows: Article 8 “1. Everyone has the right to respect for his ... family life.... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” Article 6 “In the determination of ... his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by an independent and impartial tribunal established by law.” 25. The Court reiterates that it is the master of the characterisation to be given in law to the facts of a case (see Guerra and Others v. Italy, 19 February 1998, § 44, Reports of Judgments and Decisions 1998 ‑ I). The Court further notes that it has previously held that the procedural safeguards guaranteed under Article 6 § 1 are encompassed by the overall requirements of ensuring respect for family life under Article 8 (see Iosub Caras v. Romania, no. 7198/04, § 48, 27 July 2006, Diamante and Pelliccioni v. San Marino, no. 32250/08, § 150, 27 September 2011). 26. In view of the close link between the complaints under Articles 6 § 1 and 8, the Court shall examine the application solely under Article 8, which also covers the complaints under Article 6 § 1. A. Admissibility 27. The Court notes that this complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties’ submissions (a) The applicants 28. The applicants contended that the proceedings in Romania had resulted in an interference with their rights to respect for family life. In particular, the applicants argued that the hearings and the drafting of the Romanian courts’ judgments had taken an excessive length of time, in breach of the Hague Convention. The Bucharest County Court had postponed the enforcement of its judgement for three months and the written version of that judgment was rendered three months after its delivery, leaving the applicants unable to appeal during this period. The overall length of the proceedings had thus largely exceeded the six weeks provided for under the Hague Convention and the Regulation. 29. The applicants further maintained that the Bucharest Court of Appeal had based its findings on an interim injunction which was no longer in force. Also, at the time of the Bucharest Court of Appeal’s judgment the Austrian courts had granted the first applicant sole custody of the second applicant, based on a psychological assessment which established that the first applicant did not have aggressive behaviour. 30. The first applicant also submitted that the Romanian authorities had not abided by the provisions of Article 11 § 5 of the Regulation in that he had not been heard (see paragraph 19 above). Had he been heard, he would have been able to prove that the allegations as to his aggressive behaviour were unfounded. 31. Lastly, the applicants submitted that the Romanian authorities had not abided by the provisions of Article 11 § 3 of the Regulation in that the written version of the judgment of the Bucharest Court of Appeal had only been rendered on 17 September 2009 and served on him, by fax, on 30 September 2009. (b) The Government 32. The Government submitted that the decision rendered by the Bucharest Court of Appeal did not constitute an interference with the applicants’ right to respect for family life. In this connection, the Government pointed out that at the time of the second applicant’s removal, the first applicant had not had sole custody rights and the two spouses had not lived together since 23 January 2008, when a restraining order was issued against the first applicant. Furthermore, the Government pointed out that the first applicant had breached the restraining order. 33. Should the Court find that there had been an interference with the applicants’ rights under Article 8, the Government submitted that the interference had had a legal basis, namely Article 13 (b) of the Hague Convention. Also, the interference had served the legitimate aim of protecting the child’s best interests. 34. The Government stressed that the domestic courts were better placed to decide on custody matters and that they therefore had a wide margin of appreciation. In the present case, the domestic courts relied on evidence adduced in the case, including witnesses’ testimonies, a welfare report and an official report by the Department for Social Services and Child Protection. 35. The Government also pointed out that under the Regulation it had been open to the domestic courts to summon the first applicant but they had not been under an obligation to do so. Moreover, the Romanian Ministry – in its capacity as Central Authority under the Hague Convention – had informed the first applicant of all the relevant procedural steps and given him the opportunity to submit comments thereto. He could have been present at the hearings and asked to be heard; however, he had not availed himself of this opportunity. 36. The Government lastly submitted that the period of six weeks set forth under the Hague Convention for deciding custody matters was a recommendation rather than an obligation imposed on the domestic authorities. The domestic courts had decided the case with sufficient expedition, taking into account the significant workload and the lack of sufficient staff. 2. The Court’s assessment 37. The Court first notes that the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life and is protected under Article 8 of the Convention (see Monory v. Romania and Hungary, no. 71099/01, § 70, 5 April 2005, Iosub Caras v. Romania, no. 7198/04, §§ 28-29, 27 July 2006). 38. In the sensitive area of family relations, the State is not only bound to refrain from taking measures which would hinder the effective enjoyment of family life, but, depending on the circumstances of each case, should take positive action in order to ensure the effective exercise of such rights. In this area the decisive issue is whether a fair balance between the competing interests at stake – those of the child, of the two parents, and of public order ‑ was struck, within the margin of appreciation afforded to States in such matters (see Maumousseau and Washington, cited above, § 62), bearing in mind, however, that the child’s best interests must be the primary consideration (see Gnahoré v. France, no. 40031/98, § 59, ECHR 2000 ‑ IX). 39. Notwithstanding the State’s margin of appreciation, the Court is called to examine whether the decision-making process leading to an interference was fair and afforded due respect to the interests safeguarded by Article 8 (see Ignaccolo-Zenide v. Romania, no. 31679/96, § 99, ECHR 2000 ‑ I, with further references, Tiemann v. France and Germany (dec.), nos. 47457/99 and 47458/99, ECHR 2000 ‑ IV). 40. To that end the Court must ascertain whether the domestic courts conducted an in-depth examination of the entire family situation and of a whole series of factors, in particular of a factual, emotional, psychological, material and medical nature, and made a balanced and reasonable assessment of the respective interests of each person, with a constant concern for determining what the best solution would be for the abducted child in the context of an application for his return to his country of origin (see Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 139, 6 July 2010, with further references). 41. Furthermore, the Court reiterates that the States’ obligations under Article 8 of the Convention are to be interpreted in harmony with the general principles of international law, and, in the area of international child abduction, particular account is to be given to the provisions of the Hague Convention (see Golder v. the United Kingdom, 21 February 1975, § 29, Series A no. 18, Ignaccolo-Zenide, cited above, § 95). 42. In the instant case, while holding that the removal of the second applicant from her habitual residence in Austria was wrongful within the meaning of Article 3 of the Hague Convention, the domestic courts dismissed the first applicant’s request for the return of his daughter on the ground that the return would expose her to physical and psychological harm, within the meaning of Article 13 § 1 (b) of the Hague Convention. The Court finds that such measure constituted an interference with the applicants’ right to respect for family life (see also Iosub Caras, cited above, § 30). 43. The Court accepts the Government’s submissions that the interference was provided for by law, namely Article 13 § 1 (b) of the Hague Convention and pursued the legitimate aim of protecting the child’s best interests. 44. The Court must therefore determine whether the interference in question was “necessary in a democratic society” within the meaning of Article 8 § 2 of the Convention, interpreted in the light of the above ‑ mentioned international instruments, and whether when striking the balance between the competing interests at stake, appropriate account was given to the child’s best interests, within the margin of appreciation afforded to the State in such matters. 45. The Court is bound to observe that the domestic court’s assessment of the child’s best interest was based on an expired interim injunction issued in Austria (see paragraph 9 above). Furthermore, there is no evidence in the case file of a renewal of such interim injunction, therefore the Court has doubts regarding the reference to the breach of the restraining order in September 2008, which allegedly determined K.T’s departure to Romania (see paragraph 18 above). Moreover, the Salzburg District Court judgment of 25 November 2008 awarding sole custody to the first applicant was set aside on the sole ground that it was delivered after K.T had left for Romania. 46. Furthermore, in assessing the child’s best interests the Bucharest Court of Appeal did not make any reference to her current family situation or to other elements of a psychological, emotional, material or medical nature. No reference was made to the weight attached, if any, to the report drafted by the Department for Social Services and Child Protection. In any event, this report did not assess the implications of the second applicant’s return to Austria, or whether appropriate arrangements were in place to secure her protection upon return. The Court also notes that the domestic authorities did not take into consideration the expert report drafted in Austria and mentioned in the judgment of 25 November 2008 (see paragraph 12 above). The Court finds that these factors, taken together, cast doubts as to the level of depths of the domestic court’s assessment of the child’s best interests (see Šneersone and Kampanella v. Italy, no. 14737/09, § 95, 12 July 2011). 47. The Government further submitted that, in assessing the child’s best interests the domestic courts relied on witness testimonies and a welfare report. The Court notes that the witnesses’ testimonies only consisted of declarations of K.T. and her parents (see paragraph 17 above). Moreover, the welfare report was produced before the Romanian courts in the context of the divorce and custody proceedings and mainly restated K.T.’s allegations concerning the first applicant’s behaviour in Austria and the reasons for her departure. No attempt appears to have been made to contact the first applicant in order to hear his position on the matter. Similarly to the report drafted by the Department for Social Services and Child Protection, there was no analysis of the implications of a possible return of the second applicant to Austria. 48. In these circumstances the Court cannot but observe that the analysis conducted by the domestic authorities in order to determine the child’s best interests was not sufficiently thorough. 49. The Court will now turn to examine the fairness of the decision ‑ making process in connection with the participation of the first applicant in the domestic proceedings and the speediness of review. 50. The Government argued that the first applicant had not been prevented from participating in the hearings and making submissions. In this respect, the Court reiterates that the Convention is designed to “guarantee not rights that are theoretical or illusory but rights that are practical and effective” (see, among other authorities, Airey v. Ireland, 9 October 1979, § 24, Series A no. 32). As regards litigation involving opposing private interests, equality of arms implies that each party must be afforded a reasonable opportunity to present his case – including his evidence – under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent. It is left to the national authorities to ensure in each individual case that the requirements of a "fair hearing" are met ( Dombo Beheer B.V. v. the Netherlands, 27 October 1993, § 33, Series A no. 274). 51. In the instant case, Court finds that accepting the Government’s argument whereby it was incumbent on the first applicant to inquire on the status of the request for return without any obligation on the part of the domestic authorities to undertake any action, would result in a disadvantageous situation for such applicant thus undermining the principle of fair proceedings. 52. The Court further notes that the Romanian Ministry submitted regular updates on the status of the domestic proceedings to their Austrian counterpart (see paragraph 19 above). The Court agrees with the Government that providing such information formed part of the Romanian Ministry’s obligations under the Hague Convention. However, the Court notes that neither was the applicant heard by the domestic courts nor did he present written submissions in the domestic proceedings. 53. When examining the overall decision-making process the Court cannot disregard the fact that the file before the domestic courts contained controversial pieces of evidence. The Court finds that giving the first applicant the opportunity to present his case either directly or through written submissions was of paramount importance for ensuring the fairness of the decision-making process. 54. In relation to the speediness of review, the Court reiterates that in matters pertaining to the reunification of children with their parents, the adequacy of a measure is also to be judged by the swiftness of its implementation, such cases requiring urgent handling, as the passage of time can have irremediable consequences for the relations between the children and the parent who does not live with them (see Iosub Caras, cited above, § 38). Even if the Court were to accept the Government’s argument whereby the six-week time-limit set forth under the Hague Convention is not to be interpreted strictly, it cannot fail but notice that this time ‑ limit was largely exceeded as the Hague Convention proceedings lasted a total of eleven months before the first-instance and the instance of appeal. Moreover, the Court notes that the Council Regulation No. 2201/2003 permits non ‑ compliance with the six-week rule only in exceptional circumstances (see paragraph 21 above). No satisfactory explanation was put forward by the Government for this delay. 55. In conclusion, and in the light of the foregoing considerations the Court finds that the decision-making process at domestic level was flawed as on the one hand no in-depth analysis was conducted with a view to assessing the child’s best interests and on the other hand the first applicant was not given the opportunity to present his case in an expeditious manner as required under Article 8 of the Convention interpreted in the light of the Hague Convention and the Regulation. There has accordingly been a violation of Article 8 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 56. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 1. Pecuniary damage 57. The first applicant claimed 185,759.28 euros (EUR) in respect of pecuniary damage resulting from past, present and future loss of income as he had become ill from the stress associated with the abduction of his daughter. 58. The Government submitted that the first applicant’s claims were speculative and did not have a direct connection with the possible finding of a violation of Article 8 of the Convention. 59. The Court finds that the causal link between the violation found and the alleged pecuniary damage is too remote to justify an award of compensation under this head. 2. Non-pecuniary damage 60. The first applicant sought EUR 40,000 on his own behalf and EUR 60,000 on behalf of the second applicant in compensation for non ‑ pecuniary damage suffered due to the anxiety and distress he and his daughter had experienced on account of the domestic courts’ failure to promptly order the return of the second applicant to Austria. 61. The Government submitted that the amounts claimed were unjustified and excessive, inviting the Court to rule that the finding of a violation would provide sufficient just satisfaction for any non ‑ pecuniary damage the applicants may have suffered. 62. The Court considers that the applicants must have suffered distress as a result of the impossibility to enjoy each other’s company. It considers that, in so far as the first applicant is concerned, sufficient just satisfaction would not be provided solely by a finding of a violation. In the light of the circumstances of the case, and making an assessment on an equitable basis as required by Article 41, the Court awards the first applicant EUR 10,000 under this head. As to the second applicant, the Court considers that the finding of a violation provides sufficient just satisfaction for any non ‑ pecuniary damage she may have suffered as a result of the violation of her Article 8 rights (see Sylvester, cited above, § 80). B. Costs and expenses 63. The first applicant also claimed EUR 15,172.04 for the costs and expenses incurred before the domestic courts and the Court, namely (i) EUR 11,160 in lawyer’s fees incurred in Austria in connection with the Hague Convention proceedings; (ii) EUR 1,500 in lawyer’s fees incurred in Romania in connection with the Hague Convention proceedings; (iii) EUR 553 for expenses before the Court and (iv) EUR 1,959.04 for mobile phone expenses incurred in connection with his attempts to retrieve his daughter. 64. The Government disputed the claims, arguing that the first applicant had not submitted the relevant documents in support of his claim and that the requirements of Rule 60 of the Rules of Court had not been met. 65. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In relation to the costs incurred in the proceedings before the Court, the first applicant submitted a bank statement certifying payments made to his lawyer’s bank account amounting to 1591.06 Romanian lei (representing the equivalent of around EUR 393) and an invoice for 687.15 Romanian lei (representing the equivalent of around EUR 160) for English translations of the correspondence with the Court. In the absence of any other documents, the Court finds that the first applicant has only justified the translation expenses and awards him the amount of EUR 160 for the proceedings before the Court. C. Default interest 66. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 8 of the Convention, finding in particular that the Romanian courts had not carried out an in-depth analysis to assess the child’s best interests and had not given the first applicant the opportunity to present his case in an expeditious manner, as required by the European Convention on Human Rights, interpreted in the light of the Hague Convention of 25 October 1980. Further, as to the fairness of the decision-making process, the first applicant had never been afforded the opportunity to present his case before the Romanian courts either directly or through written submissions. Finally, the Court observed, the Hague Convention proceedings had lasted a total of eleven months before two levels of jurisdiction, notwithstanding that such proceedings should have been terminated within six weeks. |
694 | Insult of State officials | II. RELEVANT DOMESTIC AND INTERNATIONAL LAW A. National legislation 26. The relevant provisions of the Spanish Constitution read as follows: Article 14 “ Spaniards shall be equal before the law; they may not be discriminated against in any way on account of birth, race, sex, religion, opinion or any other condition or personal or social circumstance.” Article 16 “1. Freedom of ideas, religion and worship shall be guaranteed to individuals and communities without any restrictions on its expression other than those necessary for the maintenance of public order as protected by law. ... ” Article 20 “1. The following rights shall be recognised and protected: (a) the right freely to express and disseminate thoughts, ideas and opinions orally, in writing or by any other means of reproduction; ... 2. The exercise of these rights may not be restricted by any prior censorship. ... 4. These freedoms shall be limited by respect for the rights secured in this Part, by the provisions of the implementing Acts and in particular by the right to honour and to a private life and the right to control use of one ’ s likeness and to the protection of youth and children. ... ” Article 56 “1. The King shall be the Head of State, the symbol of its unity and permanence. He shall be the arbitrator and moderator of the lawful functioning of institutions. He shall be the supreme representative of the Spanish State in its international relations, in particular with those nations belonging to its historic community, and shall exercise the functions expressly attributed to him by the Constitution and the law. ... 3. The King shall be inviolable and shall not be liable. ... ” Article 62 “It shall be incumbent on the King to: ... (h) exercise supreme command over the armed forces; ( i ) exercise the right of clemency in accordance with the law, but without the power to grant general pardons ... ” 27. The relevant provisions of the Criminal Code (as amended by Institutional Act no. 10/1995 of 23 November 1995) read as follows: Article 208 “ Acts or expressions which undermine another ’ s dignity by attacking his or her reputation or self-esteem shall constitute insult. Only insults which, by virtue of their nature, effects and context, are generally acknowledged to be serious shall constitute an offence ... ” Article 209 “The offence of serious public insult shall be punishable by a day-fine payable for between six and fourteen months. Where the insult is not proffered publicly, the fine shall be payable for between three and seven months.” 28. With regard to the offence of insult against the King, Article 490 of the Criminal Code provides for the penalties indicated below : Article 490 “... 3. Anyone who falsely accuses or insults the King or any of his ascendants or descendants, the Queen consort or the consort of the Queen, the Regent or any member of the Regency, or the Crown Prince, in the exercise of his or her duties or on account of or in connection with them, shall be liable to a term of imprisonment of between six months and two years if the false accusation or insult is of a serious nature, and otherwise to a day-fine payable for between six and twelve months.” This provision is contained in Title XXI of Book II of the Criminal Code (“Offences against the Constitution”), under Chapter II (“Offences against the Crown”). 29. Articles 496 and 504 of the Criminal Code deal with the offence of serious insult against Parliament, the government or other State institutions. These provisions feature in Title XXI of Book II of the Criminal Code ( “Offences against the Constitution”), under Chapter III (“Offences against State institutions and the separation of powers”). Article 496 “ Anyone who seriously insults the Cortes Generales [Congress of Deputies and Senate] or the legislative assembly of an Autonomous Community ... shall be liable to a day-fine payable for between twelve and eighteen months ... ” Article 504 “Anyone who seriously threatens, falsely accuses or insults the nation ’ s government, the General Council of the Judiciary, the Constitutional Court, the Supreme Court, or the Governing Council or High Court of Justice of an Autonomous Community shall be liable to a day-fine payable for between twelve and eighteen months ... ” B. Council of Europe texts 30. Reference should first be made to the Declaration on freedom of political debate in the media adopted by the Committee of Ministers of the Council of Europe on 12 February 2004, which provides: “ The Committee of Ministers of the Council of Europe, ... Conscious that some domestic legal systems still grant legal privileges to political figures or public officials against the dissemination of information and opinions about them in the media, which is not compatible with the right to freedom of expression and information as guaranteed by Article 10 of the Convention; ... THE LAW I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 32. The applicant alleged that the Supreme Court decision finding him guilty of serious insult against the King amounted to undue interference with his right to freedom of expression under Article 10 of the Convention, which reads as follows: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” 33. The Government contested that argument. A. Admissibility 34. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions (a) The applicant 35. The applicant submitted firstly that the provision of the Criminal Code on which his conviction had been based (Article 490 § 3) was not worded with sufficient precision and clarity. The increased protection provided for by Article 490 § 3 of the Criminal Code had in reality been turned into an absolute defence of the constitutional monarchy, going beyond the defence of individuals ’ honour and dignity. In the applicant ’ s view, such a broad interpretation of the provision concerned could not be said to be “prescribed by law” within the meaning of Article 10 § 2 of the Convention. 36. Furthermore, the interference had not pursued a “legitimate aim” within the meaning of Article 10 § 2, as it had been intended as symbolic punishment of any attempt to question the institution of the monarchy and, accordingly, the Constitution. 37. The applicant contended that his conviction had been neither proportionate to the legitimate aim pursued nor “necessary in a democratic society”. He referred to his own status as spokesperson for the Basque separatist parliamentary group Sozialista Abertzaleak and to the particular circumstances of the case, namely the closure of the Basque daily newspaper Euskaldunon Egunkaria and the outcry caused in the Basque Country by the allegations that the persons detained in connection with that operation had been tortured. His remarks had dealt with a topic of public interest, namely the use of torture by the Spanish security forces in the fight against terrorism, a practice confirmed by numerous international human rights organisations. As to the Supreme Court ’ s argument that his remarks had been without foundation since the proceedings relating to the complaints alleging torture had been discontinued, the applicant submitted firstly that he could not have known when he was making his remarks what the outcome of the criminal investigation would be, since the latter had taken place several months after the events; secondly, no final decision had been issued discontinuing the proceedings. In that connection, the applicant, referring to the judgment in Martinez Sala and Others v. Spain ( no. 58438/00, § 160, 2 November 2004 ), stated that, in Spain, numerous complaints alleging torture were filed away without further action being taken although no detailed investigation had been carried out. Furthermore, the monarch had granted pardons under the Spanish Constitution to numerous members of the Spanish security forces convicted of torture. The applicant cited by way of example the decision of the United Nations Committee Against Torture in the case of Kepa Urra Guridi v. Spain ( Communication no. 212/2002, UN doc. CAT/C/34/D/212/2002). It was against this background that his remarks had to be seen; the applicant claimed that he had himself been subjected to torture following his arrest in July 1987. 38. Referring to the Court ’ s case-law on the subject of insults against a Head of State ( see Colombani and Others v. France, no. 51279/99, § § 66 ‑ 69, ECHR 2002 ‑ V, and Pakdemirli v. Turkey, no. 35839/97, § § 51 ‑ 52, 22 February 2005 ), the applicant argued that the excessive protection afforded to the Crown under Spanish criminal law was incompatible with Article 10 of the Convention. Whereas in the case of ordinary individuals and other institutions an insult had to be characterised as serious in order for the person concerned to be prosecuted, in the case of the Crown any kind of insult sufficed and was punishable. The offence of serious insult against the Crown was unique in carrying a prison sentence ( of six months to two years); under ordinary law and in the case of other institutions, the penalty for serious insult was a fine. The provisions in question therefore conferred on the Crown “ a special privilege that [could not] be reconciled with modern practice and political conceptions ” (the applicant referred to Colombani and Others, cited above, § 68). The applicant alluded to the legislative trends in Council of Europe member States, most of which dealt with attacks against the sovereign under the ordinary law. Hence, making insults against the King a criminal offence was not necessary in a democratic society, especially as the offences of criminal defamation and proffering insults provided Heads of State or monarchs with sufficient remedy against remarks that damaged their honour. 39. As to the proportionality of the penalty, the applicant stressed that from 8 June 2007 to 30 August 2008 he had served the prison sentence that had become enforceable after the Supreme Court had upheld his 2006 conviction for publicly defending terrorism. Referring to the Court ’ s case ‑ law, according to which a prison sentence imposed for an offence committed in the context of political debate was compatible with freedom of expression only in exceptional circumstances ( see Feridun Yazar v. Turkey, no. 42713/98, § 27, 23 September 2004 ), he submitted that there had been no grounds in the present case for imposing such a penalty, which in his view was manifestly disproportionate to the aim pursued. Lastly, he argued that the King had not suffered any harm and that no civil proceedings had been brought. (b) The Government 40. The Government contended that the applicant ’ s remarks would have constituted a serious slur on the honour of whoever happened to be the target, including of course the King. Describing someone as a torturer amounted to saying that the person concerned had violated the core values of the society of which he or she was a member and conveying a negative view of his or her dignity and integrity. This was especially so in the instant case, where the target of the remarks had a particular duty to adhere to and ensure adherence to the core values in question. 41. In the Government ’ s view, the Spanish courts had taken due account of the Court ’ s case-law on the subject. In that connection, they pointed out that the case-law of the Constitutional Court recognised the importance of freedom of expression as an essential guarantee of free public opinion, which was inextricably linked to democratic pluralism. However, the right to freedom of expression did not protect a supposed right to proffer insults and hence did not encompass vexatious remarks which were irrelevant and superfluous for the purposes of conveying the opinions or information concerned. Referring to the Court ’ s case-law ( see Lingens v. Austria, 8 July 1986, Series A no. 103 ), the Government stressed that although the limits of permissible criticism were wider with regard to public figures, the latter ’ s reputation must also be protected for the purposes of Article 10 § 2 of the Convention even where the persons concerned were not acting in a private capacity. 42. The Government stressed the unique institutional position occupied by the King under the Spanish Constitution, pointing out that the King could not be held liable and that his neutral status in political debate under the Constitution meant that he was owed institutional respect of a kind that was “substantively” different from that due to other State institutions. 43. Even assuming that the limits of criticism of the King of Spain by a member of a regional parliament were wider, neither the Spanish Constitution nor the Convention could be deemed to recognise a right to proffer insults, in disregard of a person ’ s dignity. The Government agreed with the Spanish courts that the interference complained of had not been directed against the applicant ’ s anti-monarchy views but against specific expressions which had overstepped the bounds of legitimate exercise of the right to free expression, in breach of the King ’ s right to honour. Lastly, the Spanish courts had given ample reasons for the applicant ’ s conviction, in the light of the background to the case. 2. The Court ’ s assessment 44. It is not disputed between the parties that the applicant ’ s conviction amounted to “interference by public authority” with his right to freedom of expression. Such interference will infringe the Convention unless it satisfies the requirements of paragraph 2 of Article 10. It must therefore be determined whether it was “prescribed by law”, pursued one or more of the legitimate aims set out in that paragraph and was “necessary in a democratic society” to achieve those aims. (a) “Prescribed by law” 45. The Court notes that the statutory basis for the applicant ’ s conviction was Article 490 § 3 of the Criminal Code, which makes it a punishable offence to insult the King. As to whether that provision was applied by the courts examining the case on the merits with the aim of defending the monarchy, as suggested by the applicant, to the point of making the legal rule in question less foreseeable, this question is actually linked to the relevance and sufficiency of the reasons given by the domestic courts to justify the interference with the applicant ’ s freedom of expression. The Court will therefore examine this issue in the context of the “necessity” of the interference. 46. The Court concludes that the interference at issue was “prescribed by law” within the meaning of Article 10 § 2 of the Convention. (b) Legitimate aim 47. In the Court ’ s view, the interference pursued one of the aims enumerated in Article 10 § 2, namely the “protection of the reputation or rights of others”, in this case the reputation of the King of Spain. (c) “Necessary in a democratic society” ( i ) General principles 48. Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual ’ s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no “democratic society” (see Handyside v. the United Kingdom, 7 December 1976, § 49, Series A no. 24; Lindon, Otchakovsky -Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 45, ECHR 2007 ‑ IV; and Verein gegen Tierfabriken Schweiz ( VgT ) v. Switzerland (no. 2) [GC], no. 32772/02, § 96, ECHR 2009 ). As set forth in Article 10, this freedom is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly. 49. The adjective “necessary”, within the meaning of Article 10 § 2, implies the existence of a “pressing social need”. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a “restriction” is reconcilable with freedom of expression as protected by Article 10. The Court ’ s task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether the reasons adduced by the national authorities to justify it are “relevant and sufficient” and whether it was “proportionate to the legitimate aim pursued”. In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they relied on an acceptable assessment of the relevant facts (see, among many other authorities, Mamère v. France, no. 12697/03, § 19, ECHR 2006 - XIII, and Lindon, Otchakovsky -Laurens and July, cited above, § 45). 50. There is little scope under Article 10 § 2 for restrictions on freedom of expression in the area of political speech or debate – where freedom of expression is of the utmost importance – or in matters of public interest. While freedom of expression is important for everybody, it is especially so for an elected representative of the people. He represents his electorate, draws attention to their preoccupations and defends their interests. Accordingly, interference with the freedom of expression of a member of parliament calls for the closest scrutiny on the part of the Court (see Castells v. Spain, 23 April 1992, § 42, Series A no. 236 ). Furthermore, the limits of acceptable criticism are wider as regards a politician as such than as regards a private individual. Unlike the latter, the former inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large, and he must consequently display a greater degree of tolerance (see Lingens, cited above, § 42; Vides Aizsardzības Klubs v. Latvia, no. 57829/00, § 40, 27 May 2004; and Lopes Gomes da Silva v. Portugal, no. 37698/97, § 30, ECHR 2000 ‑ X ). He is certainly entitled to have his reputation protected, even when he is not acting in his private capacity, but the requirements of that protection have to be weighed against the interests of open discussion of political issues, since exceptions to freedom of expression must be interpreted narrowly (see, among other authorities, Pakdemirli, cited above, § 45, and Artun and Güvener v. Turkey, no. 75510/01, § 26, 26 June 2007 ). The Court has also acknowledged that public officials are subject to wider limits of criticism than private individuals, although the criteria applied to them cannot be the same as for politicians (see Janowski v. Poland [GC], no. 25716/94, § 33, ECHR 1999 ‑ I ). (ii) Application of these principles 51. The Court notes at the outset that the applicant was undeniably speaking in his capacity as an elected representative and spokesperson for a parliamentary group, so that his comments were a form of political expression (see Mamère, cited above, § 20). Furthermore, the applicant ’ s remarks concerned an issue of public interest in the Basque Country, namely the welcome extended by the Head of the government of the Basque Country to the King of Spain during the latter ’ s official visit to the Basque Country on 26 February 2003, against the background of the closure of the Basque ‑ language newspaper Euskaldunon Egunkaria and the detention of its senior management a few days previously, and of the latter ’ s public allegations of ill-treatment. The applicant ’ s statements were therefore made in the context of a debate on matters of public interest. Accordingly, the margin of appreciation available to the authorities in establishing the “ necessity ” of the penalty imposed on the applicant was particularly narrow (see, mutatis mutandis, Mamère, cited above, § 20). 52. The Court must now examine the reasons leading to the impugned decisions by the domestic courts, in order to determine whether they were relevant and sufficient to justify the applicant ’ s conviction on the basis of the legitimate aim referred to, namely the protection of the reputation of the King of Spain. The Supreme Court, in overturning the applicant ’ s acquittal by the Basque Country High Court of Justice, sentenced him to one year ’ s imprisonment for serious insult against the King. It considered that the impugned remarks had directly targeted the King in person and the institution he embodied and that they had overstepped the limits of permissible criticism. 53. As regards the terms in which the applicant expressed himself, the domestic courts found them to have been ignominious, vexatious and derogatory in so far as they accused the Head of State of “ one of the most serious manifestations of criminal conduct in a State governed by the rule of law ”, namely torture (“ in charge of the torturers”, “who defends torture” and “ [who] imposes his monarchical regime on our people through torture and violence”). The Court points out in that regard that a distinction needs to be made between statements of fact and value judgments. While the existence of facts can be demonstrated, the truth of value judgments is not susceptible of proof. The requirement to prove the truth of a value judgment is impossible to fulfil and infringes freedom of opinion itself, which is a fundamental part of the right secured by Article 10. The classification of a statement as a fact or as a value judgment is a matter which in the first place falls within the margin of appreciation of the national authorities, in particular the domestic courts. However, even where a statement amounts to a value judgment, there must exist a sufficient factual basis to support it, failing which it will be excessive (see, for example, Lindon, Otchakovsky ‑ Laurens and July, cited above, § 55). Furthermore, the requirement to furnish facts in support of a value judgment is less stringent if the information is already known to the general public (see Feldek v. Slovakia, no. 29032/95, § 86, ECHR 2001 ‑ VIII ). In the present case, the Court observes that the Supreme Court stated in its judgment that the impugned remarks had been value judgments rather than statements of fact. However, it took the view that the context in which they had been made did not justify their seriousness, in view of the fact that the proceedings concerning the allegations of torture made by the management of the newspaper Euskaldunon Egunkaria had been discontinued for lack of evidence. The Court observes that there was a sufficiently strong link between the applicant ’ s remarks and the allegations of ill-treatment made public by the editor-in-chief of Euskaldunon Egunkaria on his release. It further notes that the terms used by the applicant could be understood as forming part of a wider public debate on the possible implication of the State security forces in cases of ill ‑ treatment. 54. Turning to the expressions themselves, the Court accepts that the language used by the applicant could have been considered provocative. However, while any individual who takes part in a public debate of general concern – like the applicant in the instant case – must not overstep certain limits, particularly with regard to respect for the reputation and rights of others, a degree of exaggeration, or even provocation, is permitted; in other words, a degree of immoderation is allowed (see Mamère, cited above, § 25). The Court observes that, while some of the remarks made in the applicant ’ s speech portrayed the institution embodied by the King in a very negative light, with a hostile connotation, they did not advocate the use of violence, nor did they amount to hate speech, which in the Court ’ s view is the essential element to be taken into account (see, conversely, Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 62, ECHR 1999 ‑ IV ). It also notes that neither the domestic courts nor the Government sought to justify the applicant ’ s conviction by reference to incitement to violence or hate speech. The Court further takes account of the fact that the remarks were made orally during a press conference, so that the applicant had no possibility of reformulating, refining or retracting them before they were made public (see Fuentes Bobo v. Spain, no. 39293/98, § 46, 29 February 2000, and Birol v. Turkey, no. 44104/98, § 30, 1 March 2005 ). 55. Next, the Court notes that, in convicting the applicant, the domestic courts relied on Article 490 § 3 of the Criminal Code, which affords the Head of State a greater degree of protection than other persons (protected by the ordinary law on insults) or institutions (such as the government and Parliament) with regard to the disclosure of information or opinions concerning them, and which lays down heavier penalties for insulting statements (see paragraphs 27-29 above). In that connection, the Court has already stated that providing increased protection by means of a special law on insults will not, as a rule, be in keeping with the spirit of the Convention. In its judgment in Colombani and Others, it examined section 36 of the French Act of 29 July 1881, which has since been repealed, concerning offences against foreign Heads of State and diplomats. It observed that the application of section 36 of the 1881 French Act conferred on foreign Heads of State a special privilege, shielding them from criticism solely on account of their function or status; this, in the Court ’ s view, could not be reconciled with modern practice and political conceptions. The Court therefore held that it was the special protection afforded to foreign Heads of State by section 36 that undermined freedom of expression, not their right to use the standard procedure available to everyone to complain if their honour had been attacked (see Colombani and Others, cited above, § 69). In Artun and Güvener, the Court took the view that its findings in Colombani and Others on the subject of foreign Heads of State applied with even greater force to a State ’ s interest in protecting the reputation of its own Head of State. That interest, in the Court ’ s view, could not serve as justification for affording the Head of State privileged status or special protection vis-à-vis the right to convey information and opinions concerning him (see Artun and Güvener, cited above, § 31; see also, with regard to excessive protection of the status of the President of the Republic in civil cases, Pakdemirli, cited above, § 52). 56. The Court considers that, despite the differences compared with a republican system like that of Turkey, the principles established in its own case-law in that regard are also valid in relation to a monarchy like Spain, where the King occupies a unique institutional position, as pointed out by the Government. In Pakdemirli, the excessive protection afforded to the President of the Republic derived also from the fact that the holder of the office ceased to have the status of politician and acquired that of statesman (see Pakdemirli, cited above, § 51). In the Court ’ s view, the fact that the King occupies a neutral position in political debate and acts as an arbitrator and a symbol of State unity should not shield him from all criticism in the exercise of his official duties or – as in the instant case – in his capacity as representative of the State which he symbolises, in particular from persons who challenge in a legitimate manner the constitutional structures of the State, including the monarchy. In that connection, the Court notes that the Basque Country High Court of Justice, which acquitted the applicant at first instance, observed that criticism of a constitutional institution was not excluded from the scope of the right to freedom of expression (see paragraph 13 above). The Court cannot but emphasise that freedom of expression is all the more important when it comes to conveying ideas which offend, shock or challenge the established order (see Women On Waves and Others v. Portugal, no. 31276/05, § 42, 3 February 2009 ). Furthermore, it considers that the fact that the King is “not liable” under the Spanish Constitution, particularly with regard to criminal law, should not in itself act as a bar to free debate concerning possible institutional or even symbolic responsibility on his part in his position at the helm of the State, subject to respect for his personal reputation. 57. In that connection, the Court points out that the remarks at issue in the instant case did not concern the King ’ s private life (see, conversely, Standard Verlags GmbH v. Austria (no. 2), no. 21277/05, 4 June 2009, a case concerning strictly personal aspects of the Austrian President ’ s private life; see also Von Hannover v. Germany, no. 59320/00, § 64, ECHR 2004 ‑ VI ) or his personal honour, nor did they amount to a gratuitous personal attack against him (see, conversely, Pakdemirli, cited above, § 46). It also notes that, in the view of the Basque Country High Court of Justice, the applicant ’ s statements had been made in a public and political context unconnected to the “ innermost core of individual dignity” (see paragraph 14 above). Nor did the remarks in question criticise the manner in which the King performed his official duties in a particular sphere or attribute any individual responsibility to him in the commission of a specific criminal offence. The applicant ’ s comments related solely to the King ’ s institutional responsibility as the symbol and Head of the State apparatus and of the forces which, according to the applicant, had tortured the editors and directors of the newspaper Euskaldunon Egunkaria. 58. Lastly, as regards the penalty imposed, while it is perfectly legitimate for the institutions of the State, as guarantors of the institutional public order, to be protected by the competent authorities, the dominant position occupied by those institutions requires the authorities to display restraint in resorting to criminal proceedings (see, mutatis mutandis, Castells, cited above, § 46; see also the Council of Europe materials, paragraphs 30 and 31 above). The Court observes in that regard that the nature and severity of the penalties imposed are also factors to be taken into consideration in assessing the “proportionality” of the interference. It notes the particularly harsh nature of the penalty imposed: the applicant was sentenced to one year ’ s imprisonment. His criminal conviction also resulted in his right to stand for election being suspended for the duration of his sentence, even though he was a politician. 59. The Court has previously held that, although sentencing is in principle a matter for the national courts, the imposition of a prison sentence for an offence in the area of political speech will be compatible with freedom of expression as guaranteed by Article 10 of the Convention only in exceptional circumstances, notably where other fundamental rights have been seriously impaired, as, for example, in the case of hate speech or incitement to violence (see Bingöl v. Turkey, no. 36141/04, § 41, 22 June 2010, and, mutatis mutandis, Cumpănă and Mazăre v. Romania [GC], no. 33348/96, § 115, ECHR 2004 ‑ XI ). It refers in that regard to the guidance given in the materials of the Committee of Ministers and the Parliamentary Assembly of the Council of Europe concerning prison sentences in the area of political speech (see paragraphs 30 and 31 above). 60. There is nothing in the circumstances of the present case, in which the impugned remarks were made in the context of a debate on an issue of legitimate public interest, to justify the imposition of such a prison sentence. Such a sanction, by its very nature, will inevitably have a chilling effect, notwithstanding the fact that enforcement of the applicant ’ s sentence was stayed. While that fact may have eased the applicant ’ s situation, it did not erase his conviction or the long-term effects of any criminal record (see, mutatis mutandis, Artun and Güvener, cited above, § 33, and Marchenko v. Ukraine, no. 4063/04, § 52, 19 February 2009 ). 61. In view of the foregoing, even assuming that the reasons given by the domestic courts could be said to be relevant, they are not sufficient to demonstrate that the interference complained of was “necessary in a democratic society”. Notwithstanding the margin of appreciation left to the national authorities, the Court considers that the applicant ’ s conviction was disproportionate to the aim pursued. 62. Accordingly, there has been a violation of Article 10 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 14 TAKEN IN CONJUNCTION WITH ARTICLE 10 OF THE CONVENTION 63. The applicant alleged that he had been the victim of discrimination based on his political opinions and his function as a spokesperson for the Basque separatist movement. He relied on Article 14 of the Convention taken in conjunction with Article 10. Article 14 provides: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” 64. The Court observes that this complaint is linked to the complaint examined above and should therefore likewise be declared admissible. 65. Having regard to its finding in relation to Article 10 of the Convention (see paragraph 62 above), the Court considers that it is not necessary to examine separately the applicant ’ s complaint under Article 14 taken in conjunction with Article 10 (see, among other authorities, Bingöl, cited above, § 44). III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 66. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Pecuniary damage 67. The applicant claimed 78,586 euros (EUR) in respect of pecuniary damage. He submitted that this amount corresponded to the losses actually sustained as a direct consequence of the alleged violation, and especially the loss of his allowance as a member of parliament on account of his imprisonment from 8 June 2007 to 30 August 2008. 68. The Government contested the claim. 69. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. B. Non-pecuniary damage 70. The applicant claimed EUR 30,000 in respect of non-pecuniary damage. 71. The Government considered the amount claimed to be excessive. 72. The Court considers that the applicant sustained, on account of the violation found, non-pecuniary damage that cannot be compensated by the mere finding of a violation. Ruling on an equitable basis as required by Article 41 of the Convention, it awards the applicant the sum of EUR 20,000 in respect of non-pecuniary damage. C. Costs and expenses 73. The applicant also claimed EUR 3,000 for the costs and expenses incurred before the Court. 74. The Government contested the claim. 75. In the present case, regard being had to the documents in its possession and its case-law, the Court considers it reasonable to award the applicant the sum of EUR 3,000 for the proceedings before the Court. D. Default interest 76. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 10 (freedom of expression) of the Convention, finding that the applicant’s conviction and sentence had been disproportionate to the legitimate aim pursued, namely the protection of the King of Spain’s reputation, as guaranteed by the Spanish Constitution. The Court observed in particular that, while it was true that the language used by the applicant could have been considered provocative, it was essential to bear in mind that, even if some of the words used in the applicant’s comments had been hostile in nature, there had been no incitement to violence and they had not amounted to hate speech. Furthermore, these had been oral statements made in the course of a press conference, which meant that the applicant had been unable to reformulate, rephrase or withdraw them before they were made public. |
112 | Covert filming of minors | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Sexual molestation 27. The offence of sexual molestation (and child pornography, see below) falls within the domain of public prosecution, in which the principle of objectivity is applied whereby no prosecution should be brought if the prosecutor deems that the conditions for a conviction are lacking. The provision on sexual molestation can be found in the Penal Code ( Brottsbalken, 1962:700) which, before 1 April 2005, provided: Chapter 6 on sexual crimes, Article 7 “1. If a person sexually touches a child under 15 years of age otherwise than as previously provided for in this Chapter, or induces the child to undertake or participate in an act with sexual implications, a fine or imprisonment of a maximum period of two years shall be imposed for sexual molestation. 2. A sentence for sexual molestation shall also be imposed on a person who by coercion, seduction or other improper influence induces a person who has attained the age of 15 but not 18 to undertake or participate in an act with sexual implications if the act is an element in the production of pornographic pictures or constitutes pornographic posing in circumstances other than those relating to the production of a picture. 3. This shall also apply if a person exposes himself or herself in such a manner that the nature thereof gives offence or otherwise manifestly behaves indecently by word or deed towards a person in a way that flagrantly violates a sense of propriety.” 28. On 1 April 2005 that provision was incorporated into Article 10 of Chapter 6 and reads as follows: “1. A person who, otherwise than as previously provided in this Chapter, sexually touches a child under 15 years of age or induces the child to undertake or participate in an act with sexual implications shall be sentenced for sexual molestation to a fine or to imprisonment of a maximum period of two years. 2. This also applies to a person who exposes himself or herself to another person in a manner that is likely to cause discomfort or who otherwise by word or deed molests a person in a way that is likely to violate that person ’ s sexual integrity.” 29. It should be noted that a person cannot be held responsible for an uncompleted act of sexual molestation, such as attempting or preparing to commit such a crime (see, by converse implication, Chapter 23, Article 1, of the Penal Code). 30. Subsequently, based on the statements in the preparatory works to the provision, the 2008 Sexual Offences Commission stated the following. “In our view, it is ... quite clear that the second paragraph of the provision on sexual molestation should also include actions directed at persons who are unconscious or asleep. The provision therefore belongs to the category of sexual offences, not offences against integrity. Using this as the starting point for how the offence of sexual molestation should be handled, it may also be possible to assess situations in which a person has covertly filmed or photographed another person in a sexually intrusive way as sexual molestation.” B. Attempted child pornography 31. The relevant provisions of the Penal Code read: Article 10a of Chapter 16 on crimes against public order “A person who 1. portrays a child in a pornographic picture; 2. disseminates, transfers, grants use of, exhibits, or in any other way makes such a picture of a child available to some other person; 3. acquires or offers such a picture of a child; 4. brings about contact between a buyer and a seller of such pictures of children or takes any other similar step to facilitate dealing in such pictures; or 5. possesses such a picture of a child shall be sentenced for the crime of child pornography to imprisonment for a maximum period of two years, or, if it is a petty offence, to a fine or imprisonment for a maximum period of six months. A child is held to be a person whose pubertal development is not complete or who is under 18 years of age. If a person ’ s pubertal development is complete, liability shall be imposed for deeds committed under points 2 to 5 above only if it is apparent from the picture or its circumstances that the depicted person is under 18 years of age. ...” 32. Before 1 January 2011, the second paragraph of the above Article read: “ A child is held to be a person whose pubertal development is not complete or who, where this is apparent from the picture and its circumstances, is less than 18 years of age ...” 33. The term “pornographic picture” is not defined in the text of the law. In the preparatory works it was stated that the provision about pornographic crimes applied only to pictures, but to pictures of all kinds, such as, inter alia, pictures in publications, photographic pictures, including films and pictures distributed by TV-technique or video recordings (Governmental Bill 1978/79:179, p. 9). Moreover it was stated that: “A certain prudence was called for, so that the criminalised area would not become too wide or difficult to assess. It was not the intention to criminalise every exposure of naked children or all pictures in which a child ’ s genitals may be perceived, even if such pictures may stimulate some people ’ s sexual instincts. In order for the handling of a picture to be illegal, it is a condition that it be pornographic according to common parlance and general values.” 34. In a review of the legislation ( Law no. 2010:1357), which led to the amendment of the second paragraph of Chapter 16, Article 10a, as from 1 January 2011, as set out above, the following was stated, among other things, as regards the definition (Swedish Government Official Reports, SOU 2007:54, p. 77): “A picture may be regarded as pornographic when, without any real scientific or artistic merits, and in a blatant and alluring manner, it displays a sexual motive (Gov. Bill 1970:125, pp. 79 et seq.). Not only do pictures in which children are involved in acts which obviously have a sexual connotation fall within the provision regarding child - pornography crimes, but also pictures in which children appear together with one or several adults who are performing such actions. Pictures in which a child appears in a manner which is designed to appeal to sexual instincts without the child being considered to have participated in sexual behaviour during the picturing may fall within the criminalised area ... A picture may be presented in different ways, inter alia, by a real child being pictured, filmed or drawn. By using different techniques, more or less realistic artificial pictures may also be created. For criminal liability to be incurred it is not necessary that the picture depicts a real child; pictures of fictive children are also included.” 35. With regard specifically to attempt, the Penal Code reads : Chapter 16, Article 17 “A person preparing or conspiring to commit mutiny ... shall be sentenced in accordance with the provisions of Chapter 23. The same shall also apply ... to the crime of attempting to commit the crime of child pornography described in Article 10a, first paragraph ...” Chapter 23, Article 1 “A person who has begun to commit a crime without bringing it to completion shall, in cases where specific provisions exist for the purpose, be sentenced for attempting to commit a crime if there was a danger that the act would lead to the completion of the crime or such danger was precluded only because of fortuitous circumstances. Punishment for attempt shall not exceed the sentence applicable to a completed crime and shall not be less than imprisonment if the least stringent punishment for the completed crime is imprisonment of two years or more.” C. Other relevant legal provisions 36. The Code of Judicial Procedure ( Rättegångsbalken 1942:740 ) provides in so far as relevant: Chapter 17, Article 3 “A judgment shall not be given for anything other or more than that properly requested by a party. In cases amenable to out-of-court settlement, the judgment shall not be based on circumstances other than those pleaded by a party as the foundation of his or her action.” Chapter 22, Article 7 “If an action for private claims in consequence of an offence is brought in conjunction with the prosecution and it is found that the offence charged is not punishable, the action may nonetheless be adjudicated in the case.” Chapter 29, Article 6 “ ... Where a private claim is joined to the prosecution, the court ’ s finding of criminal liability shall be binding for the adjudication of the private claim.” Chapter 30, Article 3 “The judgment may relate only to an act for which a prosecution was properly instituted or to a matter referred by statute to the court ’ s criminal jurisdiction. The court is not bound by the legal characterisation of the offence or applicable provisions of law stated in the claim.” 37. The Tort Liability Act ( Skadeståndslag 1972:207 ) provides in so far as relevant: Chapter 2, section 1 “Anyone who deliberately or negligently causes personal injury or damage to property shall compensate the injury or damage caused.” Chapter 2, section 3 “Anyone who seriously violates another person through a crime involving an attack against the person or the freedom, serenity or honour of that person shall compensate the damage caused by the violation.” D. Domestic practice concerning covert filming 38. In a Supreme Court judgment of 16 October 1992 (NJA 1992, p. 594) concerning a person who had secretly filmed sexual intercourse between himself and his girlfriend and who had subsequently shown the film to several persons, the Supreme Court noted that it was not prohibited under Swedish law to film another person without his or her consent. This was so, the court continued, even in situations where the deed in question seriously violated the personal integrity of the person concerned. Apart from certain exceptional situations, the only protection available was under the criminal provisions on defamation in conjunction with Chapter 1, section 3, of the Tort Liability Act (now Chapter 2, section 3, of that Act). The Supreme Court found that the accused person had committed defamation by showing the film to others. 39. A further Supreme Court judgment dated 27 June 1996 (NJA 1996, p. 418) concerned a man who had covertly filmed his sleeping girlfriend while he masturbated. The District Court found his acts to constitute, inter alia, sexual molestation, but the Court of Appeal and the Supreme Court acquitted him of this offence. The Supreme Court held that the isolated act of filming was not a crime in itself as in Swedish law there was no general prohibition against filming an individual without his or her consent. 40. Yet another Supreme Court judgment, dated 23 October 2008 (NJA 2008, p. 946), concerned, inter alia, a person who had covertly filmed his ex-girlfriend with another man in an intimate situation and who had subsequently e ‑ mailed the film, together with certain descriptive messages, to others. The Court of Appeal found the filming to constitute molestation and the sending of some of the e-mails to amount to defamation, and awarded the ex - girlfriend damages for violation of personal integrity. The Supreme Court granted leave to appeal in respect of the alleged molestation. The Supreme Court acquitted the person of molestation and reiterated at the same time that Swedish law contained no general prohibition against covert filming. The court also noted that in cases where the covert filming did not constitute a crime, no damages could be awarded. Although the need for a strengthened legal framework in this regard had already been acknowledged in Swedish legislative work in the 1960s, the court noted further that it had so far not led to any concrete results. The court found it highly questionable whether the fact that acts of filming an individual in situations where such filming seriously violated the personal integrity of the person concerned were left wholly unpunished under Swedish law was compatible with the requirements of Article 8 of the Convention. Given that finding, the court continued, it was legitimate to examine whether punishment could be imposed by interpreting otherwise non-applicable domestic provisions in a Convention- compliant manner. In that regard, the court referred to domestic case-law concerning compensation for violations of the Convention. However, the court noted, another requirement under the Convention was that no one should be punished for an act which, at the time when it was committed, did not clearly constitute a criminal offence under the law. After finding that the filming in issue did not fall under any applicable criminal provision, it was left unpunished and no damages were awarded. E. Recent legislative work concerning covert filming 41. In 2004 the Government instructed the Committee on the Protection of Integrity ( Integritetsskyddskommittén ) to investigate the need for general legal provisions for the protection of personal integrity (apart from the legislation on data protection, crimes against individuals, secrecy, and so on). In the meantime, the Penal Code was reviewed and in April 2005 an amendment to the provision on sexual molestation, which was designed to encompass covert filming for sexual purposes, was introduced (see paragraphs 28-30 above). 42. In 2008 the Committee on the Protection of Integrity proposed a general provision in the Penal Code on illicit photography and in January 2011 the Ministry of Justice issued a report on illicit photography (Ds 2011:1) which proposed the criminalisation of photography and filming in certain situations. On 1 March 2012 the Government approved the referral of a proposal entitled “Intrusive Photography” to the Law Council ( Lagrådet ) for consideration. The latter criticised the proposal, inter alia, on account of the potential effects that it could have on the principles laid down in order to protect those who procure information for publication under the Freedom of the Press Act and the Fundamental Law on Freedom of Expression, which are part of the Swedish Constitution. 43. Consequently, on 20 December 2012 the Government adopted a new proposal modifying the scope of the criminalisation of intrusive photography. The Law Council did not have any comments on the substance of the proposal and on 7 February 2013 the Government presented the bill to the Swedish Parliament proposing to criminalise intrusive photography in accordance with the proposal referred to the Law Council on 20 December 2012. The Law (SFS 2013:366) was enacted by Parliament on 29 May 2013 and came into force on 1 July 2013. Henceforth, Article 6a of Chapter 4 of the Penal Code, regarding crimes against liberty and peace, reads as follows: “A person who, with the aid of technical means, illicitly and covertly records a picture of someone who is inside a home or in a bathroom, in a changing room or other similar space, shall be sentenced for intrusive photography to a fine or imprisonment of a maximum of two years. No criminal responsibility shall be imposed if the act is justifiable considering its purpose and other circumstances. The first paragraph does not apply to a person who depicts someone with the aid of technical means in the course of duty on behalf of a public authority.” In concrete terms, covertly filming a person without his or her permission in a shower or bathroom would be punishable as intrusive photography. Placing, or “rigging”, a camera with the aim of committing an intrusive - photography offence would also be punishable as preparation to commit such an offence. F. Domestic practice concerning the crime of child pornography 44. In a judgment of 25 February 2005 (NJA 2005, p. 80), which concerned the photographing and filming of certain young individuals aged over 15 but under 18, the Supreme Court held that the pubertal development of the individuals was clearly complete and that it was impossible, from the pictures alone or their presentation, to determine whether they had attained the age of 18 or not. Their age could not be determined from any text accompanying the pictures or any other circumstances. In such a situation, and regardless of whether the person responsible for the pictures was aware of the individuals ’ age or not, the act could not be held to constitute the crime of child pornography. G. Domestic practice and ongoing legislative work concerning compensation for violations of the Convention 45. In a judgment of 9 June 2005 (NJA 2005, p. 462) concerning a claim for damages brought by an individual against the Swedish State, inter alia, on the basis of an alleged violation of Article 6 of the Convention on account of the excessive length of criminal proceedings, the Supreme Court held that the claimant ’ s right under this Article had been violated. Based on this finding, and with reference, inter alia, to Articles 6 and 13 and the Court ’ s case-law under these provisions, in particular the case of Kudła v. Poland ([GC], no. 30210/96, ECHR 2000 ‑ XI), the Supreme Court concluded that the claimant was entitled to compensation from the State directly under Swedish legislation on tort liability for pecuniary damage and under Article 13 of the Convention for non-pecuniary damage to the extent that no other remedy was available. 46. Similar decisions followed on 4 May 2007 (NJA 2007, p. 295), concerning length of detention and Article 5 of the Convention, and on 21 September 2007 (NJA 2007, p. 584) regarding Article 8 of the Convention. 47. A Supreme Court decision of 29 October 2007 (NJA 2007, p. 747) concerned a claim for damages brought by an individual against a private insurance company. The claim concerned an alleged violation of Article 8 of the Convention related to secret surveillance undertaken in respect of the claimant. The Supreme Court noted that the Convention did not impose duties on individuals. Even if the State might have positive obligations under the Convention, the court continued, in view of the rule - of-law value enshrined in the principle of predictability, an individual could not be obliged to compensate another individual directly on the basis of the Convention. 48. The right to obtain compensation on the basis of an alleged violation of the Convention was subsequently acknowledged by the Supreme Court in its judgments of December 2009 (NJA 2009, N 70), June 2010 (NJA 2010, p. 363) and April 2012 (NJA 2012, p. 211). 49. Furthermore, the Chancellor of Justice has delivered various decisions concerning compensation to individuals for violations of the Convention. 50. Finally, in May 2009 the Government decided to set up a committee ( en särskild utredare ) on tort liability and the Convention to examine the current legal situation. In December 2010 the committee submitted its report ( Skadestånd och Europakonventionen, SOU 2010:87) to the Government. It proposed the inclusion of an explicit provision in the Tort Liability Act allowing natural and legal persons to obtain pecuniary and non-pecuniary damages from the State or a municipality for violations of the Convention. Such an action against public authorities would be examined by an ordinary court which would first need to establish that a right under the Convention had been violated. The aim of the proposal is to fulfil, together with the other already existing legal remedies, Sweden ’ s obligations under Article 13 of the Convention. IV. COMPARATIVE LAW 53. From the information available to the Court, including a survey of thirty-nine Council of Europe member States, it would appear that child pornography is criminalised in all of those States. 54. The isolated act of covert/non-consensual filming, photographing or portrayal of a child for sexual purposes is criminalised either as child pornography or as a specific offence in thirty-three of the member States studied (Albania, Austria, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Czech Republic, Estonia, Finland, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Luxembourg, Republic of Moldova, Montenegro, the Netherlands, Norway, Poland, Romania, Russia, Slovakia, Slovenia, Spain, Switzerland, Turkey, Ukraine and the United Kingdom), while a conviction in the remaining six member States (Azerbaijan, Denmark, France, Monaco, Lithuania and the former Yugoslav Republic of Macedonia ) can only be obtained where an intent to distribute the pornographic material can be proven. In most of the latter countries the conduct in question might still be illegal under other provisions of the Criminal Code relating to sexual offences. 55. The isolated act of covert or non-consensual filming/photographing of an individual (a child or an adult) for non-sexual purposes is considered a criminal offence in twenty-five of the member States studied (Albania, Bosnia and Herzegovina, Croatia, Denmark, Finland, France, Georgia, Germany, Greece, Iceland, Italy, Lithuania, Luxembourg, Monaco, Montenegro, the Netherlands, Poland, Russia, Slovakia, Slovenia, Spain, Switzerland, the former Yugoslav Republic of Macedonia, Turkey and Ukraine), namely as a violation of the right to privacy. Eleven of the remaining fourteen member States which do not include privacy crimes in their criminal codes provide for civil remedies against infringements of a person ’ s privacy. Three of the member States examined also do not have a civil-law procedure for claims against covert/non-consensual capturing of one ’ s image. THE LAW I. ALLEGED VIOLATIONS OF ARTICLES 8 AND 13 OF THE CONVENTION 56. The applicant complained that the Swedish State had failed to comply with its obligation under Article 8 to provide her with remedies against her stepfather ’ s violation of her personal integrity when he had attempted secretly to film her naked in their bathroom when she was 14 years old. She also relied on Article 13 of the Convention. 57. The Court reiterates that it is the master of the characterisation to be given in law to the facts of a case (see, for instance, Aksu v. Turkey [GC], nos. 4149/04 and 41029/04, § 43, ECHR 2012). In the present case, it considers that the applicant ’ s complaint concerns exclusively the remedies available to her against her stepfather, not those available against the State to enforce the substance of a Convention right or freedom at the national level. The complaint is therefore to be examined under Article 8 of the Convention alone, which provides as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. The Chamber judgment 58. In its judgment of 21 June 2012 (see E.S. v. Sweden, no. 5786/08, 21 June 2012 ), the Chamber also considered that the complaint was to be examined under Article 8 of the Convention alone. It was satisfied that, although Swedish law contained no provision relating to covert filming, laws were in place which could, at least in theory, cover acts such as the one in this case. It pointed out that the public prosecutor, when indicting the applicant ’ s stepfather, and the District Court, when convicting him on 14 February 2006, considered that the impugned act could be covered by the provision on sexual molestation. Accordingly, although at the relevant time a similar outcome had been seen in Swedish case-law (see NJA 1996, p. 418), it was not until delivery of the Court of Appeal ’ s judgment that it became clear that the act could not legally constitute sexual molestation given the applicant ’ s stepfather ’ s lack of the requisite intent that she find out about the filming. The Chamber also reiterated that the Court of Appeal, in its judgment acquitting him of sexual molestation, had pointed out that his acts might, at least theoretically, have constituted the crime of attempted child pornography under the Penal Code. However, since no charge of that kind had been brought by the prosecution against the applicant ’ s stepfather, the Court of Appeal could not examine whether he could be held responsible for that crime. Lastly, the Chamber noted that civil-law remedies were available to the applicant and that she had chosen, represented by counsel, to join her claim for damages to the criminal proceedings. In those circumstances the Chamber concluded that there were no such significant flaws in Swedish legislation and practice as to amount to a breach of Sweden ’ s positive obligations under Article 8. B. The parties ’ submissions 1. The applicant 59. The applicant maintained that the Swedish legal system did not provide any remedy to protect her against the concrete actions of her stepfather. 60. Firstly, with regard to the provision on sexual molestation, it was a requirement for a conviction that her stepfather should intend the applicant to know of the filming, the reason being that a person could not be molested unless he or she was aware of it. Accordingly, in the applicant ’ s view, her stepfather had been acquitted of sexual molestation on account of the construction of that provision. It could and should have been construed in such a way that it criminalised the filming, whether or not the applicant became aware of it at the time it was carried out. Accordingly, the applicant found that the construction of the provision on sexual molestation was open to criticism, notably since the act in issue was not covered by other criminal provisions. 61. Secondly, referring, inter alia, to the preparatory works to the provision on child pornography and to a legal opinion by Professor Madeleine Leijonhufvud, the applicant contended that her stepfather could not have been convicted of attempted child pornography either, because the basic requirement for that provision was lacking, namely that the picture in question be pornographic. In the present case images of a 14 -year-old girl undressing before taking a shower, in an otherwise everyday situation, could not be regarded as pornographic within the meaning of Chapter 16, Article 10a, of the Penal Code concerning child pornography. In order for the film to be pornographic, her stepfather would have had to manipulate the film, inter alia, by making it appear as if the applicant was posing for him, or otherwise placing the film in a pornographic context. When the case was pending before the national courts it was not possible to speculate as to what her stepfather would have done with the film because it had been destroyed. In the applicant ’ s view, it was therefore completely understandable that the prosecutor had not formulated or amended the indictment to include a child - pornography crime, since such a claim would not have had any prospect of success. 62. For the reasons set out above, the applicant did not criticise the prosecution on procedural grounds for not complying with their obligation to indict crimes or their duty to assist her in pursuing claims for damages under Chapter 22 of the Code of Judicial Procedure. Rather, she found that the legislator and the domestic courts had failed in their respective positive obligations in the present case, the legislator on account of the flaw in the law and the courts on account of the failure to award the applicant damages. 63. In respect of the legislator, the applicant observed that the mere filming or depiction of a minor in a situation which upset the essential aspects of the portrayed person ’ s personal integrity was not a criminal offence unless the image could objectively be regarded as pornographic according to common parlance and general values. For adults, no such protection existed at all. The applicant found that the failure for years to criminalise the act of covert or illicit filming amounted to a violation of Article 8. She pointed out that the weak protection in this area had been known and discussed since 1966. In her view it was inadequate to “ quantify ” this deficiency as a “ significant ” or “ insufficiently significant” flaw in the law, for the purpose of an examination under Article 8. It sufficed to conclude that the protection for the right to respect for private life was – and still is – insufficient in the Swedish legal system and that the applicant was a victim of that deficiency. The applicant pointed out that the legislative proposal regarding covert filming had been initiated after the applicant ’ s case had been communicated and that the ongoing legislative measures seemed to have progressed quite far, especially after the Grand Chamber had accepted her request for referral of her case, which demonstrated the urgent need for such legislative protection. 64. Lastly, referring to the outcome of the criminal proceedings before the domestic courts, the applicant alleged that the Swedish system did not afford her a civil remedy to protect her against the act of her stepfather. She maintained that, despite his acquittal, the courts could have awarded her compensation on the basis of the Tort Liability Act or the Convention alone. She observed that the domestic courts were the masters of the classification of the law and that therefore it had not been necessary for the parties to invoke any legal provisions at all. Furthermore, since it was a matter of a private claim in consequence of an offence and Chapter 22, Article 7, of the Code of Judicial Procedure applied, the courts were under an obligation to determine the claim, even if it was found that the act was not punishable. Accordingly, in the applicant ’ s view her claim should have been determined by the domestic courts of their own motion, even though she had not invoked any specific legal provisions. 2. The Government 65. The Government contended that Sweden had fulfilled its positive obligations under Article 8 in the present case. The act in issue fell within the scope of the Swedish criminal legislation, notably the provisions concerning sexual molestation and the offence of child pornography, and there were no elements suggesting that the primary investigation and the prosecution had not been conducted effectively or in a manner otherwise incompatible with Swedish law or Article 8. The applicant ’ s stepfather had been prosecuted for the act but could not be convicted on account of the lack of requisite evidence. Nevertheless, deterrent sanctions existed in this case and were backed up by effective law-enforcement machinery. 66. The Government initially pointed out that the Court had repeatedly stated that States enjoyed a wide margin of appreciation with regard to ensuring adequate protection under Article 8, even in cases of very severe offences such as the rape of a minor (see, for example, M.C. v. Bulgaria, no. 39272/98, § 154, ECHR 2003 ‑ XII), and that only significant flaws in legislation and practice, and their application, would amount to a breach of a State ’ s positive obligations under the said provision. 67. In the present case, the applicant ’ s stepfather was indicted for sexual molestation under Chapter 6, Article 7 § 3, of the Penal Code and both the District Court and the Court of Appeal found that his act corresponded to the objective criteria that constituted this offence, but the latter found that it was not possible to prove the subjective element required for criminal liability under that provision, namely his intent that the applicant find out about the filming. The reason for his acquittal was therefore not the lack of a criminal-law provision covering the relevant act but the public prosecutor ’ s inability to prove that he had the necessary intent and hence that the crime had been committed. The Government pointed out in this context that the Convention did not require a guarantee that a prosecution should result in a conviction (see, for example, Öneryıldız v. Turkey [GC], no. 48939/99, § § 96 and 147, ECHR 2004 ‑ XII). 68. The Government observed that the provision on sexual molestation had been amended on 1 April 2005 and moved to Chapter 6, Article 10, of the Penal Code. The crucial factor in criminal liability under the new wording was that the act must have been committed “in a way that is likely to violate that person ’ s sexual integrity”. Referring to the statements by the 2008 Sexual Offences Commission on the amended provision, the Government pointed out that after 1 April 2005 the provision on sexual molestation also covered situations like the one in issue, in which a person covertly filmed or photographed another person in a sexually intrusive way. 69. The Court of Appeal held in its judgment of 16 October 2007 that the act could, at least in theory, constitute an attempted child - pornography offence. Both sexual molestation and child pornography fell within the domain of public prosecution, in which the principle of objectivity was applied, whereby no prosecution should be brought if the prosecutor deemed that the conditions for a conviction were lacking. In the present case, there was no documentation as to why the applicant ’ s stepfather was not also charged with attempted child pornography. It was therefore not possible for the Government to draw any conclusions concerning the specific grounds on which the prosecutor had decided to include only the offence of sexual molestation in the indictment. There were several possible reasons, though, why no prosecution for an attempted child pornography offence was brought. 70. One reason for this might have been that some of the necessary conditions for such an offence were not, in the view of the prosecutor, fulfilled. An example of this might have been the criterion that the image could be considered “pornographic” in common parlance. That meant that not all depictions of naked children or pictures in which a child ’ s genitals were visible were liable to punishment, even if such images could stimulate some individuals ’ sex drive. What was in the picture and how the child was presented in the picture, inter alia, through the cutting of the picture, were of relevance to this assessment. 71. Secondly, the wording of the provision at the relevant time could have contributed to a lack of expectation on the prosecutor ’ s part of securing a conviction for this offence, namely, the requirement that the pubertal development of the child was not complete or, if it was complete, that it was apparent from the image and its circumstances that the child was under 18 years of age. 72. Thirdly, the fact that the applicant ’ s mother had destroyed the film immediately after the incident in September 2002, and the applicant and her mother did not report the incident to the police until September 2004, thus a long time after the incident had taken place, might have reduced the possibilities for the prosecution to prove that there had been a “pornographic” picture and that the applicant ’ s pubertal development at the time of the event, in September 2002, had not been complete, or that it was apparent from the circumstances that she had been under 18 years of age. 73. As to the applicant ’ s claim for damages, the Government pointed out that by virtue of Chapter 29, section 6, of the Code of Judicial Procedure, when such a claim was joined to a prosecution, the court ’ s finding as to criminal liability was binding for the adjudication of the private claim. Accordingly, it had not been possible for the Court of Appeal to award damages based on Chapter 2, Article 3, of the Tort Liability Act as no crime within the meaning of the Penal Code had been made out. In the Government ’ s view, however, in the criminal proceedings the applicant, represented by counsel, could have relied on other grounds for her claim for damages against her stepfather than the act cited in the indictment, notably that he had caused her personal injury by acting negligently, under Chapter 2, section 1, of the Tort Liability Act, which would have covered any physical and psychological injury. Under that provision, damages could have been awarded also on the basis that an injury had been caused by non - criminal acts carried out wilfully or negligently. 74. The Government pointed out that the courts could not award damages based on Article 8 of the Convention as a sole legal ground. The reason for this was that, although the Convention had been incorporated into Swedish law, and the Swedish Supreme Court had established the principle whereby an individual could be awarded damages from the State for violations of the Convention without the support of specific provisions in Swedish law, according to the Supreme Court ’ s case NJA 2007 (p. 747) this principle could not be applied to claims between individuals, as it would be difficult for an individual to foresee from the case-law of the Court when he or she could be liable to pay damages. 75. Lastly, the ongoing legislative work concerning covert and illicit filming had so far resulted in the Government ’ s approval on 1 March 2012 of a proposal entitled “Intrusive Photography”, which had been modified by a proposal of 20 December 2012, and had in substance been approved by the Law Council on 7 February 2013. It was proposed that the legislation come into force on 1 July 2013. In concrete terms, under the proposal, covertly filming a person without his or her permission in a shower or bathroom would be punishable as intrusive photography. Placing, or “rigging”, a camera with the aim of committing an offence of intrusive photography would also be punishable as preparation to commit such an offence. 76. In view of the foregoing, the Government contended that the absence at the relevant time of a specific provision in Swedish legislation concerning acts of covert or illicit filming could not be considered to entail a breach of the applicant ’ s right to respect for private life under Article 8 of the Convention. 3. Third - party observations 77. The Human Rights Centre of Ghent University considered that the “significant flaw” test applied by the Chamber amounted to a lowering of standards in the Court ’ s jurisprudence on positive obligations. In its view, the Grand Chamber should instead endorse the principles of “priority-to-rights” and “effectiveness”. The former required that Convention rights be principally accorded greater weight than public interests in the proportionality analysis and that the State bear the burden of proving the proportionality of its inactions. The latter required the existence in practice of a means capable of protecting a Convention right. In the context of the positive obligation to investigate, any deficiency in the investigation that undermined the ability to establish the circumstances of the case or the perpetrator ’ s liability fell foul of the standard of effectiveness. C. The Court ’ s assessment 1. General principles 78. The Court reiterates that the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities. However, this provision does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there are positive obligations inherent in an effective respect for private or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves (see, inter alia, Airey v. Ireland, 9 October 1979, § 32, Series A no. 32 ). 79. The choice of the means calculated to secure compliance with Article 8 of the Convention in the sphere of the relations of individuals between themselves is in principle a matter that falls within the Contracting States ’ margin of appreciation, whether the obligations on the State are positive or negative. There are different ways of ensuring respect for private life and the nature of the State ’ s obligation will depend on the particular aspect of private life that is in issue (see, for example, Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 104, ECHR 2012; Odièvre v. France [GC], no. 42326/98, § 46, ECHR 2003 ‑ III; Evans v. the United Kingdom [GC], no. 6339/05, § 77, ECHR 2007 ‑ I; and Mosley v. the United Kingdom, no. 48009/08, § 109, 10 May 2011 ). Where a particularly important facet of an individual ’ s existence or identity is at stake, or where the activities at stake involve a most intimate aspect of private life, the margin allowed to the State is correspondingly narrowed ( see Mosley, cited above, § 109 ). 80. Regarding the protection of the physical and psychological integrity of an individual from other persons, the Court has previously held that the authorities ’ positive obligations – in some cases under Articles 2 or 3 of the Convention and in other instances under Article 8 taken alone or in combination with Article 3 – may include a duty to maintain and apply in practice an adequate legal framework affording protection against acts of violence by private individuals (see, inter alia, Osman v. the United Kingdom, 28 October 1998, §§ 128-30, Reports of Judgments and Decisions 1998 ‑ VIII, §§ 128-30; Bevacqua and S. v. Bulgaria, no. 71127/01, § 65, 12 June 2008; Sandra Janković v. Croatia, no. 38478/05, § 45, 5 March 2009; A v. Croatia, no. 55164/08, § 60, 14 October 2010; and Đorđević v. Croatia, no. 41526/10, §§141-43, ECHR 2012). 81. In respect of children, who are particularly vulnerable, the measures applied by the State to protect them against acts of violence falling within the scope of Articles 3 and 8 should be effective and include reasonable steps to prevent ill-treatment of which the authorities had, or ought to have had, knowledge and effective deterrence against such serious breaches of personal integrity (see Z and Others v. the United Kingdom [GC], no. 29392/95, § 73, ECHR 2001 ‑ V, and M.P. and Others v. Bulgaria, no. 22457/08, § 108, 15 November 2011). Such measures must be aimed at ensuring respect for human dignity and protecting the best interests of the child (see C.A.S. and C.S. v. Romania, no. 26692/05, § 82, 20 March 2012, and Pretty v. the United Kingdom, no. 2346/02, § 65, ECHR 2002 ‑ III). 82. Regarding, more specifically, serious acts such as rape and sexual abuse of children, where fundamental values and essential aspects of private life are at stake, it falls upon the member States to ensure that efficient criminal - law provisions are in place (see, for example, X and Y v. the Netherlands, 26 March 1985, § 27, Series A no. 91, and M.C. v. Bulgaria, cited above, § 150). This obligation also stems from other international instruments, such as, inter alia, Articles 19 and 34 of the United Nations Convention on the Rights of the Child and Chapter VI, “Substantive criminal law ”, of the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (see paragraphs 51 and 52 above). 83. Concerning such serious acts, the State ’ s positive obligation under Articles 3 and 8 to safeguard the individual ’ s physical integrity may also extend to questions relating to the effectiveness of the criminal investigation (see, among other authorities, C.A.S. and C.S. v. Romania, cited above, § 72; M.P. and Others v. Bulgaria, cited above, §§ 109 ‑ 10; and M.C. v. Bulgaria, cited above, § 152) and to the possibility of obtaining reparation and redress (see, mutatis mutandis, C.A.S. and C.S. v. Romania, cited above, § 72), although there is no absolute right to obtain the prosecution or conviction of any particular person where there were no culpable failures in seeking to hold perpetrators of criminal offences accountable (see, for example, Brecknell v. the United Kingdom, no. 32457/04, § 64, 27 November 2007, and Szula v. the United Kingdom ( dec. ), no. 18727/06, 4 January 2007). 84. As to acts which do not attain the seriousness of those in issue in X and Y v. the Netherlands (cited above ) and M.C. v Bulgaria (cited above), the Court has examined under Article 8 the State ’ s obligation to protect, for example, a minor against malicious misrepresentation (see K.U. v. Finland, no. 2872/02, §§ 45-49, ECHR 200 8). The act in that case did not involve any physical violence, but could not be considered trivial as it entailed a potential threat to the minor ’ s physical and mental welfare, brought about by the impugned situation, namely, that he was made the target for approaches by paedophiles. The act constituted a criminal offence under domestic law and the Court considered that practical and effective protection of the applicant required the availability of a remedy enabling the actual offender to be identified and brought to justice. 85. More generally, however, in respect of less serious acts between individuals, which may violate psychological integrity, the obligation of the State under Article 8 to maintain and apply in practice an adequate legal framework affording protection does not always require that an efficient criminal-law provision covering the specific act be in place. The legal framework could also consist of civil-law remedies capable of affording sufficient protection (see, mutatis mutandis, X and Y v. the Netherlands, cited above, §§ 24 and 27, and K.U. v. Finland, cited above, § 47 ). The Court notes, for example, that in some previous cases concerning the protection of a person ’ s picture against abuse by others, the remedies available in the member States have been of a civil-law nature, possibly combined with procedural remedies such as the granting of an injunction (see, inter alia, Von Hannover, cited above; Reklos and Davourlis v. Greece, no. 1234/05, 15 January 2009; and Schüssel v. Austria ( dec. ), no. 42409/98, 21 February 2002). 2. Application of the above-mentioned principles to the present case 86. The Court observes that the Court of Appeal found that the applicant ’ s stepfather ’ s act constituted a violation of her personal integrity (see paragraph 23 above). The Court endorses this finding and considers, on the one hand, that the circumstances were aggravated by the fact that the applicant was a minor, that the incident took place in her home, where she was supposed to feel safe, and that the offender was her stepfather, a person whom she was entitled and expected to trust. This event affected the applicant in highly intimate aspects of her private life. On the other hand, it observes that the offence in question did not involve any physical violence, abuse or contact. While noting the domestic courts ’ finding that her stepfather ’ s act was certainly reprehensible, in the Court ’ s view the act in question did not attain the seriousness of the grave acts in the case-law cited above which concerned rape and sexual abuse of children (see paragraph 81 above), considered not only under Article 8 of the Convention but also Article 3. 87. On the latter point, it is worth noting that the applicant, apart from complaining about the lack of a criminal remedy with reference to the construction of the molestation offence and the absence in Swedish legislation of a separate offence of covert or illicit filming, also complained that the Swedish system did not afford her a civil remedy to protect her against her stepfather ’ s act. More specifically, the applicant maintained that the domestic courts had not fulfilled their positive obligations on account of their failure to award her compensation either on the basis of the Tort Liability Act or the Convention. Accordingly, the applicant did not claim that recourse to criminal law was the only way that Sweden could fulfil its obligation under Article 8 to protect her against her stepfather ’ s act. 88. The applicant did not complain about the effectiveness of the criminal investigation carried out by the Swedish authorities. The Court has not found any evidence that the manner in which the investigating authorities and the public prosecution carried out their tasks was ineffective in safeguarding the applicant ’ s physical integrity, or that they failed to comply with their positive obligation to conduct an effective prosecution in order to ensure adequate protection of the applicant ’ s rights under Article 8 of the Convention. 89. In the light of these preliminary observations, the Court will proceed to examine whether, in the specific circumstances of the case before it, Sweden had an adequate legal framework providing the applicant with protection against the concrete actions of her stepfather and will, to this end, assess each of the remedies allegedly available to her. 90. This approach, it should be emphasised, differs from that followed by the Chamber, which affirmed that “only significant flaws in legislation and practice, and their application, would amount to a breach of the State ’ s positive obligations under Article 8”. This was with reference to the terms used in M.C. v. Bulgaria (cited above, § 167) in relation to the scope of the State ’ s positive obligations under Articles 3 and 8 of the Convention in affording protection against rape and sexual abuse. However, in that judgment the Court had applied the “significant flaw” test to “alleged shortcomings in the investigation ”, pointing out that it “was not concerned with allegations of errors or isolated omissions” (ibid., § 168) and holding that the shortcomings were “significant” (see, for instance, M.C. v. Bulgaria, cited above, §§ 179 and 184; see also M. and C. v. Romania, no. 29032/04, §§ 112 et seq., 27 September 2011; compare and contrast Siliadin v. France, no. 73316/01, § 130, ECHR 2005 ‑ VII, where such wording was used in relation to a review of legislation and practice under Article 4 of the Convention ). 91. The Grand Chamber considers that such a significant - flaw test, while understandable in the context of investigations, has no meaningful role in an assessment as to whether the respondent State had in place an adequate legal framework in compliance with its positive obligations under Article 8 of the Convention since the issue before the Court concerns the question of whether the law afforded an acceptable level of protection to the applicant in the circumstances. (a) Child pornography 92. From the outset, the Court notes that a considerable part of the parties ’ pleadings before it were devoted to the existence under Swedish law of the offence of attempted child pornography and its relevance to the case under consideration. This had its background in the fact that when acquitting the applicant ’ s stepfather of the charge of sexual molestation (under Chapter 6, Article 7 § 3, of the Penal Code) in its judgment of 16 October 2007, the Court of Appeal affirmed in an obiter dictum that, considering the applicant ’ s age, the act in question could, at least in theory, have constituted attempted child pornography under Chapter 16, Article 10a, of the Penal Code (see the provisions cited in paragraphs 31 - 32 above). However, since no charge of that kind had been brought against the applicant ’ s stepfather, it could not examine whether he could be held liable for such a crime (see paragraph 24 above). 93. The Government were of the opinion that the type of act in issue in the applicant ’ s case could, under certain circumstances, fall not only within the provisions on sexual molestation but also within those on attempted child pornography. 94. However, whilst acknowledging that no information was available as to whether at the relevant time the public prosecutor had given any consideration to indicting the applicant ’ s stepfather with attempted child pornography, the Government enumerated a number of possible reasons why the prosecutor might have decided not to do so, notably a series of difficulties in adducing sufficient evidence to show that there had been a “pornographic” picture (see paragraphs 69 to 72 above). For instance, they pointed out that the applicant ’ s mother had destroyed the film immediately after the incident in September 2002 and that the applicant and her mother had not reported the incident to the police until September 2004, thus a long time after the incident had taken place. 95. The Court has further taken note of the fact that, in the applicant ’ s view, expressed with reference, inter alia, to the preparatory works to the provision on child pornography and to a legal opinion (see paragraph 61 above), even if the film had existed her stepfather could not have been convicted of attempted child pornography. This was because the basic condition for the offence, namely that the picture in question be “pornographic”, was absent. Images of a 14 -year-old girl undressing before taking a shower in an otherwise everyday situation could not be regarded as pornographic within the meaning of Chapter 16, Article 10a, of the Penal Code concerning child pornography. In order for the film to be pornographic, the applicant ’ s stepfather would have had to manipulate the film, for example by making it appear as if she had been posing for him, or otherwise place the film in a pornographic context. Had a charge been brought for the offence of attempted child pornography in the instant case, it would not have had any prospect of success. The applicant requested the Court to disregard the existence of this offence under the relevant national law in its examination of her complaint. 96. The Court observes that the term “pornographic picture” was not defined in the Penal Code and that the preparatory works referred to by the applicant stated that “a certain prudence was called for, so that the criminalised area would not become too wide or difficult to assess. It was not the intention to criminalise every exposure of naked children or all pictures in which a child ’ s genitals may be perceived, even if such pictures may stimulate some people ’ s sexual instincts. In order for the handling of a picture to be illegal, it was a condition that it be pornographic according to common parlance and general values” (see paragraph 33 above). 97. Against this background, the possibility that the offence of attempted child pornography might have afforded the applicant protection in respect of the specific act in issue seems rather theoretical. The Court is not convinced that her stepfather ’ s act was covered by the said offence and sees no need in the particular circumstances to speculate on what the implications would have been for the protection of the applicant ’ s right to respect for her private life under Article 8 of the Convention had a charge for such conduct also been brought. ( b ) Sexual molestation 98. Another issue is the question whether the offence of sexual molestation provided the applicant with the protection required by Article 8 of the Convention. Before 1 April 2005, the relevant part of the provision on sexual molestation under Chapter 6, Article 7 § 3, of the Penal Code read as follows: “[ A sentence for sexual molestation shall be imposed] if a person exposes himself or herself in such a manner that the nature thereof gives offence or otherwise manifestly behaves indecently by word or deed towards the latter in a way that flagrantly violates a sense of propriety.” 99. The applicant ’ s stepfather was convicted accordingly by the District Court on 14 February 2006. The Court of Appeal acquitted him by a judgment of 16 October 2007 since it considered that, legally, the act could not constitute sexual molestation. The Court of Appeal found it established that his motive had been to film the applicant covertly for a sexual purpose. It was thus regarded as certain that he did not intend the applicant to find out about the filming. Nor, according to the court, was he indifferent to the risk that she would find out about it. The Court of Appeal then referred to a judgment (NJA 1996, p. 418) in which the Supreme Court had held, among other things, that covert filming was not a crime in itself as in Swedish law there was no general prohibition against filming an individual without his or her consent. Following that line of reasoning, and although finding that the act in question constituted a violation of personal integrity, notably in the light of the applicant ’ s age and relationship to her stepfather, the Court of Appeal found that he could not be held criminally responsible for the isolated act of filming the applicant without her knowledge. Even if she had indeed obtained knowledge of the filming afterwards, the court reiterated, this knowledge was not covered by her stepfather ’ s intent. The Supreme Court refused leave to appeal on 12 December 2007. 100. In order for the offence of sexual molestation under Chapter 6, Article 7 § 3, of the Penal Code to be made out, it was thus a requirement when carrying out the act that the offender intended that the victim find out about the sexual molestation or that the offender was indifferent to the risk that the victim would find out about it. In other words, the victim could not be considered sexually molested unless he or she was aware of the molestation. It will be recalled that the applicant ’ s stepfather was indeed convicted of sexual molestation under the said provision as regards the two counts of indecent behaviour against the applicant ’ s 16-year-old cousin, namely, for having caressed her thigh and for having expressed his desire to have sex with her (see paragraph 14 above). 101. This interpretation of the provision on sexual molestation by the Court of Appeal was confirmed in another case by the Supreme Court in a judgment of 23 October 2008 (NJA 2008, p. 946) (see paragraph 40 above). The Supreme Court acquitted a person of molestation and reiterated at the same time that Swedish law contained no general prohibition against covert filming. It further noted that although the need for a strengthened legal framework in this regard had been acknowledged in Swedish legislative work as early as the 1960s, it had so far not led to any concrete results. It found it highly questionable whether the fact that acts of filming an individual in situations where such filming seriously violated the personal integrity of the person concerned were left wholly unpunished under Swedish law was compatible with the requirements of Article 8 of the Convention. 102. The applicant maintained that the construction of the provision on sexual molestation as worded before 1 April 2005 was open to criticism. In so far as this criticism was not only aimed at the legislators but also aimed at the interpretation by the Court of Appeal in its judgment of 16 October 2007, and subsequently confirmed by the Supreme Court in another case, the Court reiterates that it is not its task to take the place of the domestic courts. It is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation (see Nejdet Şahin and Perihan Şahin v. Turkey [GC], no. 13279/05, § 49, 20 October 2011). The Court agrees with the applicant, however, that it was not on account of a lack of requisite evidence, as maintained by the Government, that her stepfather was acquitted of sexual molestation, but rather, as pointed out by the Court of Appeal, because, legally at the relevant time, the act could not constitute sexual molestation. 103. The provision on sexual molestation was amended on 1 April 2005, thus after the act in the present case had been committed in September 2002, and before the acquittal of the applicant ’ s stepfather in the criminal proceedings. Thereafter, the provision on sexual molestation also included acts carried out “in a way that [was] likely to violate that person ’ s sexual integrity”. Subsequently, the 2008 Sexual Offences Commission stated that in their view the amended provision included actions directed at persons who were unconscious or asleep and that it could also be used in situations where a person had covertly filmed or photographed another person in a sexually intrusive way. 104. The Court observes that the Government have not pointed to any domestic case - law in which the amended provision on sexual molestation was applied to covert filming carried out after 1 April 2005. In any event, it suffices to conclude that the provision on sexual molestation as worded before 1 April 2005, and interpreted in the present case by the Court of Appeal in their judgment of 16 October 2007, which became final when the Supreme Court refused leave to appeal, could not legally cover the act in issue and thus did not protect the applicant against the lack of respect for her private life under Article 8 of the Convention. ( c ) Recent legislation on covert filming 105. Nor does it appear that the above-mentioned gaps in the substantive protection of the applicant ’ s Article 8 rights were in any way remedied by any other existing national provisions at the time. In this connection, the Court cannot but note that the absence of such provisions has long been a matter of concern in Sweden and that many other member States have legislation in place covering the isolated act of covert or non-consensual filming/photographing of an individual (child or adult) for other than sexual purposes, either under criminal or civil law (see paragraph 55 above). According to the Supreme Court judgment of 23 October 2008 (NJA 2008, p. 946 – see paragraph 40 above ) the need for a strengthened legal framework against covert filming had already been acknowledged in Swedish legislative work in the 1960s, but had not yet led to any concrete results. The Supreme Court found it highly questionable whether the fact that acts of filming of an individual in situations where such filming deeply violated the personal integrity of the person concerned were left wholly unpunished under Swedish law was compatible with the requirements of Article 8 of the Convention (see also paragraph 101 above). 106. The Court notes that the most recent proposal by the Government, of 20 December 2012, entitled “Intrusive Photography”, has been adopted by Parliament. In concrete terms, under the new provisions, which came into force on 1 July 2013, covertly filming a person without his or her permission in a shower or bathroom would be punishable as intrusive photography. Placing, or “rigging”, a camera with the aim of committing an intrusive photography offence would also be punishable as preparation to commit such an offence (see paragraph 43 above). 107. The Court further observes that the legislation is designed to cover an act such as the one in issue in the present case. It also notes that the principles laid down in the Freedom of the Press Act and the Fundamental Law on Freedom of Expression, which are part of the Swedish Constitution, notably as regards the protection of procurers of information to the media, were carefully considered before the said bill could be presented to Parliament. However, as was undisputed, the applicant could not rely on the new legislation regarding an incident which took place in 2002 and could not avail herself of any such protection of her right to respect for her private life. ( d ) Civil-law remedies 108. In this case recourse to the criminal law was, in the Court ’ s view, not necessarily the only way that the respondent State could fulfil its obligations under Article 8 of the Convention. Accordingly, the question arises whether the applicant had a civil remedy available to her. 109. In this connection, it is to be observed that the applicant joined her civil claim for damages against her stepfather to the criminal proceedings against him. Thus, on 20 January 2006, represented by counsel, the applicant submitted a claim for damages of SEK 25,000, with SEK 15,000 of this sum as compensation for violation of her personal integrity and SEK 10,000 for pain and suffering. As the basis for her claim the applicant referred to “the criminal act for which her stepfather was being prosecuted”. 110. According to the Government, the claim was founded partly on section 1 and partly on section 3 of Chapter 2 of the Tort Liability Act (see paragraph 37 above). 111. In its judgment of 14 February 2006 convicting the applicant ’ s stepfather, the District Court ordered him to pay the applicant damages in the amount of SEK 20,000. However, when acquitting him in its judgment of 16 October 2007, because the act could not legally constitute sexual molestation, the Court of Appeal also dismissed the applicant ’ s claim for damages. The Government pointed out in this connection that by virtue of Chapter 29, section 6, of the Code of Judicial Procedure, when a civil claim is joined to a prosecution, the court ’ s finding in the matter of criminal liability is binding for the adjudication of the private claim. Accordingly, it was not possible for the Court of Appeal to award damages based on Chapter 2, section 3, of the Tort Liability Act as no crime within the meaning of the Penal Code had been made out. This conclusion is consistent with the statement of the Supreme Court in the subsequent judgment, NJA 2008, p. 946 (see paragraph 40 above) of 23 October 2008, that Swedish law contained no general prohibition against covert filming and that in cases where such filming did not constitute a crime, damages could not be awarded. 112. Nevertheless, the Government contended that in the criminal proceedings the applicant could have relied on other grounds in support of the claim for damages directed against her stepfather, namely, that he had caused her personal injury by acting negligently under Chapter 2, section 1, of the Tort Liability Act, which could have covered any physical and psychological injury (see paragraph 73 above). 113. In this regard, it should be borne in mind, however, that the applicant ’ s stepfather had at no time during the investigation or the criminal proceedings alleged that he had left the camera in recording mode in the laundry basket in the bathroom by accident. On the contrary, he acknowledged that it had been a wilful but impulsive act. Therefore, in the Court ’ s view, the applicant and her counsel could not be expected to have invoked negligence just for the sake of ensuring that her claim be dealt with in the event that the act was not deemed to be covered by the offence of sexual molestation. 114. Accordingly, the Court is not convinced that in the specific situation at hand, where the act in issue was not legally covered by the provision on sexual molestation and where covert filming in general did not constitute a crime, the applicant had a civil remedy available to her. ( e ) Compensation on the basis of the Convention 115. Lastly, the Court has considered the applicant ’ s contention that the domestic courts in the criminal proceedings could have awarded her compensation on the basis of the Convention alone but had failed do so of their own motion. 116. As pointed out by the Government, although the Supreme Court had established a principle whereby an individual could be awarded damages from the State for violations of the Convention without the support of specific provisions in Swedish law, this could not apply to claims between individuals as it would be difficult for an individual to foresee from the Court ’ s case-law when he or she could be liable to pay damages (NJA 2007, p. 747, see paragraph 47 above). Having regard to the Swedish domestic practice on compensation for violations of the Convention (see paragraphs 45 to 50 above), including the aforementioned Supreme Court ruling, the Court is not persuaded that this alleged avenue of redress really existed or that it could have made up for the absence of a civil remedy in the specific situation at hand as found above. ( f ) Conclusion 117. Having regard to the all the above-mentioned considerations, the Court is not satisfied that the relevant Swedish law, as it stood in September 2002 when the specific act of the applicant ’ s stepfather covertly attempting to film the applicant naked in their bathroom for a sexual purpose occurred, ensured protection of her right to respect for her private life in a manner that, notwithstanding the respondent State ’ s margin of appreciation, complied with its positive obligations under Article 8 of the Convention. The act in question violated the applicant ’ s integrity; it was aggravated by the fact that she was a minor, that the incident took place in her home, where she was supposed to feel safe, and that the offender was her stepfather, a person whom she was entitled and expected to trust. However, as the Court has found above, neither a criminal remedy nor a civil remedy existed under Swedish law that could enable the applicant to obtain effective protection against the said violation of her personal integrity in the concrete circumstances of her case. Accordingly, there has been a violation of Article 8 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 118. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 119. The applicant claimed 20,000 euros (EUR) in compensation for non - pecuniary damage. 120. The Government found that amount excessive. In their view, an amount not exceeding a total of EUR 3,000 would be sufficient to compensate the applicant. 121. The Court considers that the applicant must have suffered non - pecuniary damage that is not sufficiently compensated for by the mere finding of a violation of Article 8. Ruling on an equitable basis, it awards the applicant EUR 10,000 in respect of non-pecuniary damage. B. Costs and expenses 122. The applicant claimed 516,410 Swedish kronor (SEK) (corresponding to approximately EUR 60,500) including value - added tax (VAT) for costs and expenses, which comprised: ( i ) SEK 146,250 for lawyers ’ fees incurred in the proceedings before the Chamber, equal to 65 hours at an hourly rate of SEK 1,800 (exclusive of VAT); ( ii) SEK 353,750 for lawyers ’ fees incurred in the proceedings before the Grand Chamber, equal to 141.50 hours at an hourly rate of SEK 2,000 (exclusive of VAT); ( iii) SEK 11,021 for a legal opinion obtained; ( iv) SEK 5,389 for travel costs and an allowance for expenses incurred by her three counsel in attending the hearing before the Grand Chamber. In connection with the latter item, the applicant also claimed compensation for expenses amounting to EUR 3,260.60 for flight tickets and accommodation costs incurred by her and her three counsel in attending the hearing before the Grand Chamber. 123. The Government found the lawyers ’ fees excessive both as to the hours and the hourly rate. They considered a total amount of 80 hours reasonable as well as an hourly rate corresponding to the Swedish hourly legal aid fee, which for 2013 was SEK 1,242 ( exclusive of VAT). Regarding the other costs and expenses, the Government found that the cost of the legal opinion had been unnecessarily incurred. They did not object to the remainder of the claims as such. 124. According to the Court ’ s established case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. 125. In respect of the lawyers ’ fees, be this before the Chamber or the Grand Chamber, the Court can accept an hourly rate as claimed by the applicant. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 25,000 including VAT (see, for example, X and Others v. Austria [GC], no. 19010/07, § 163, ECHR 2013; Nada v. Switzerland [GC], no. 10593/08, § 245, ECHR 2012; and Al- Jedda v. the United Kingdom [GC], no. 27021/08, § 117, ECHR 2011). 126. Turning to the other costs and expenses before the Grand Chamber, it appears that the amount included plane tickets for five persons. The Court can only award travel expenses for the applicant and her three counsel. It therefore awards the applicant EUR 4,700 under this head. C. Default interest 127. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 8 (right to respect for private life) of the Convention. It found in particular that Swedish law in force at the time had not ensured protection of the applicant’s right to respect for private life – whether by providing a criminal or a civil remedy – in a manner that complied with the Convention. The act committed by her stepfather had violated her integrity and had been aggravated by the fact that she was a minor, that the incident took place in her home, and that the offender was a person whom she was entitled and expected to trust. |
583 | Deportation of seriously ill persons | THE LAW I. ADMISSIBILITY OF THE COMPLAINTS 20. The applicant complained that, given her illness and the lack of freely available antiretroviral and other necessary medical treatment, social support or nursing care in Uganda, her removal there would cause acute physical and mental suffering, followed by an early death, in breach of Article 3 of the Convention. The Government disagreed. Article 3 provides: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Article 8 provides: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 21. The Court considers that the application as a whole raises questions of law which are sufficiently serious that their determination should depend on an examination of the merits. No ground for declaring it inadmissible has been established. The application must therefore be declared admissible. Pursuant to Article 29 § 3 of the Convention, the Court will now consider the merits of the applicant’s complaints. II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION A. The parties’ submissions 1. The Government 22. The Government submitted that it was clear from the Court’s jurisprudence that, in medical cases such as the present, Article 3 applied only in “exceptional”, or “very exceptional”, circumstances. This restriction of the application of Article 3 was correct as a matter of principle, given that the source of the risk was not in the expelling State and that it stemmed from factors which were not such as to engage the responsibility of the public authorities of the receiving State. The case-law further demonstrated that “exceptional circumstances” would be found only where the applicant’s illness had reached a very advanced or terminal stage and where the probable lack of medical care and support, including support from family members, in the receiving State would be such as to deprive him or her of “the most basic human dignity as his illness runs its inevitably painful and fatal course” (see D. v. the United Kingdom, 2 May 1997, opinion of the Commission, § 60, Reports of Judgments and Decisions 1997-III). In considering whether there were exceptional circumstances, the Court in previous cases had focused primarily on the gravity of the applicant’s medical condition at the moment of the intended removal and had not, to date, carried out any detailed consideration of whether the required treatment and care would be available in practice to the applicant in the receiving country. 23. The “exceptional circumstances” threshold was not satisfied in the instant case. While the Government accepted that without antiretroviral drugs the applicant’s condition would deteriorate rapidly and she would suffer illness, discomfort, pain and death within a year or two, they maintained that her illness was currently stable and that the treatment she needed was available in Uganda, albeit at considerable cost. She was fit to travel and would remain fit if, and so long as, she could obtain the treatment that she needed when she returned to Uganda. She had family members there, although she maintained that they would not be willing or able to care for her if she was seriously ill. For these reasons, the case was distinguishable from D. v. the United Kingdom and fell into the category of medical cases in which the Court had rejected the claim under Article 3 (see paragraphs 34-39 below). 24. Advances in the treatment of HIV and Aids available in developed States did not affect the above general principle, as set out in the case-law from D. v. the United Kingdom onwards, since the focus in those cases was on ensuring a dignified death rather than prolonging life. The interpretation of the Convention, as with any international treaty, was confined by the consent of the Contracting States. The practical effect of extending Article 3 to cover the applicant’s case would be to grant her, and countless others afflicted by Aids and other fatal diseases, a right to remain and to continue to benefit from medical treatment within a Contracting State. It was inconceivable that the Contracting States would have agreed to such a provision. The Convention was intended primarily to protect civil and political, rather than economic and social, rights. The protection provided by Article 3 was absolute and fundamental, whereas provisions on health care contained in international instruments such as the European Social Charter and the International Covenant on Economic, Social and Cultural Rights were merely aspirational in character and did not provide the individual with a directly enforceable right. To enable an applicant to claim access to health care by the “back door” of Article 3 would leave the State with no margin of appreciation and would be entirely impractical and contrary to the intention behind the Convention. 2. The applicant 25. The applicant contended that in order to engage the State’s responsibility in an expulsion case it was necessary for the applicant to establish, firstly, that it was reasonably foreseeable for the State that the action or inaction would result in harm and, secondly, that the harm would reach the threshold of severity of Article 3 treatment. The analysis by the Court in an expulsion case was no different from that in any other case involving alleged future harm under Article 3; and the analysis in an expulsion case involving Aids or other serious illness was no different from that where the risk of ill-treatment emanated from the public authorities in the receiving country. Moreover, there was no conceptual distinction between acute suffering occasioned by the removal of someone at death’s door, who was psychologically prepared for death, and someone who was not so psychologically prepared, having been brought back from the brink of death by treatment which it was proposed to discontinue. 26. In the instant case there was on the evidence a stark contrast between the applicant’s current situation and what would befall her if removed. The adjudicator found the foreseeable consequence of the expulsion to be exposure to acute physical and mental suffering, followed by an early death. This finding was not displaced throughout the domestic proceedings and was also reached expressly in the speech of Lord Hope (see paragraphs 14 ‑ 17 above). 27. The applicant submitted that five of her six siblings had died of HIV-related illness in Uganda. She had witnessed their deaths and knew from first-hand experience that all Ugandan doctors could do was to attempt to alleviate symptoms. The hospital in her home town was very small and unable to cope with Aids. She was too weak to work and would not be able to support herself or pay for medication if returned to Uganda. Her quality of life would be appalling; she would quickly relapse into very poor health and she had no relatives left alive to look after her. During her years in the United Kingdom she had formed a private life on the basis of her associations and contacts with people and organisations which had helped her to come to terms with her illness and provided the medical, social and psychological support she needed. 3. The third party 28. The Helsinki Foundation for Human Rights, a non-governmental organisation based in Warsaw, Poland, submitted that the standards established by the Court would affect a large number of Aids sufferers and the Court should seize the opportunity to define the factors to be taken into account when deciding on the expulsion of an HIV/Aids-infected person. Such factors should include: the acquired rights of a person who had been admitted to a host country and treated there using antiretroviral therapy; the medical condition of the person to be removed, principally the degree of dependence on antiretroviral therapy; and the availability of medication in the country of origin to the individual in question. B. The Court’s assessment 1. General principles regarding Article 3 and expulsion 29. According to the Court’s constant case-law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum level of severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see, among many other authorities, Jalloh v. Germany [GC], no. 54810/00, § 67, ECHR 2006-IX. The suffering which flows from naturally occurring illness, physical or mental, may be covered by Article 3, where it is, or risks being, exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible (see Pretty v. the United Kingdom, no. 2346/02, § 52, ECHR 2002-III; Kudła v. Poland [GC], no. 30210/96, § 94, ECHR 2000-XI; Keenan v. the United Kingdom, no. 27229/95, § 116, ECHR 2001-III; and Price v. the United Kingdom, no. 33394/96, § 30, ECHR 2001-VII). 30. It is the Court’s settled case-law that as a matter of well-established international law, and subject to their treaty obligations, including those arising from the Convention, Contracting States have the right to control the entry, residence and removal of aliens. However, expulsion by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if deported, faces a real risk of being subjected to treatment contrary to Article 3. In such a case, Article 3 implies an obligation not to deport the person in question to that country (see Saadi v. Italy [GC], no. 37201/06, §§ 124-25, ECHR 2008). 31. Article 3 principally applies to prevent a deportation or expulsion where the risk of ill-treatment in the receiving country emanates from intentionally inflicted acts of the public authorities there or from non-State bodies when the authorities are unable to afford the applicant appropriate protection (see H.L.R. v. France, 29 April 1997, § 32, Reports 1997-III, and Ahmed v. Austria, 17 December 1996, § 44, Reports 1996-VI). 2. The Court’s case-law in respect of Article 3 and the expulsion of the seriously ill 32. In addition, aside from these situations and given the fundamental importance of Article 3 in the Convention system, the Court in the above-cited D. v. the United Kingdom case (§ 49) reserved to itself sufficient flexibility to address the application of Article 3 in other contexts which might arise, where the source of the risk of proscribed treatment in the receiving country stemmed from factors which could not engage either directly or indirectly the responsibility of the public authorities of that country, or which, taken alone, did not in themselves infringe the standards of Article 3. 33. The applicant in D. v. the United Kingdom was a national of St Kitts who had been convicted and sentenced in the United Kingdom in connection with a drugs offence. When he had completed his sentence of imprisonment the United Kingdom authorities sought to deport him to St Kitts. He was, however, by that time in the advanced stages of Aids. When the Court examined the case, his CD4 cell count was below 10, he had suffered severe and irreparable damage to his immune system and his prognosis was very poor; it appeared that he was close to death. He had been counselled about dying and had formed bonds with his carers. There was evidence before the Court that the medical facilities in St Kitts did not have the capacity to provide the applicant with the treatment he needed and he had no family home or close relatives able to look after him there. The Court held (§§ 53-54) as follows: “In view of these exceptional circumstances and bearing in mind the critical stage now reached in the applicant’s fatal illness, the implementation of the decision to remove him to St Kitts would amount to inhuman treatment by the respondent State in violation of Article 3. ... [T]he respondent State has assumed responsibility for treating the applicant’s condition since August 1994. He has become reliant on the medical and palliative care which he is at present receiving and is no doubt psychologically prepared for death in an environment which is both familiar and compassionate. Although it cannot be said that the conditions which would confront him in the receiving country are themselves a breach of the standards of Article 3, his removal would expose him to a real risk of dying under most distressing circumstances and would thus amount to inhuman treatment. ... Against this background the Court emphasises that aliens who have served their prison sentences and are subject to expulsion cannot in principle claim any entitlement to remain in the territory of a Contracting State in order to continue to benefit from medical, social or other forms of assistance provided by the expelling State during their stay in prison. However, in the very exceptional circumstances of this case and given the compelling humanitarian considerations at stake, it must be concluded that the implementation of the decision to remove the applicant would be a violation of Article 3.” 34. Since the judgment in D. v. the United Kingdom, the Court has never found a proposed removal of an alien from a Contracting State to give rise to a violation of Article 3 on grounds of the applicant’s ill health. 35. In B.B. v. France (7 September 1998, Reports 1998-VI), the applicant, who had been serving a period of imprisonment in France, was suffering from Aids with acute immunosuppression. His condition had reached an advanced stage, requiring repeated hospital stays, but had stabilised as a result of antiretroviral treatment which he claimed would not be available to him in his home country, the Democratic Republic of the Congo. The Commission, in its report on the case, had found that it was highly probable that if the applicant were to be deported he would not have access to treatment designed to inhibit the spread of the virus and that the numerous epidemics raging in his country would increase the risk of infection. To expect him to confront his illness alone, without any support from family members, was likely to make it impossible for him to maintain human dignity as the disease ran its course. It concluded that deporting him would amount to a violation of Article 3. The case was referred to the Court, but before it could examine it the French Government gave an undertaking that the applicant would not be deported and the case was therefore struck out of the Court’s list. 36. In Karara v. Finland (no. 40900/98, Commission decision of 29 May 1998, unreported), the applicant, a citizen of Uganda, had been treated in Finland for an HIV infection since 1992. The Commission distinguished the case from D. v. the United Kingdom and B.B. v. France on the ground that the applicant’s illness had not yet reached such an advanced stage that his deportation would amount to treatment proscribed by Article 3 and it declared the application inadmissible. 37. The applicant in S.C.C. v. Sweden ((dec.), no. 46553/99, 15 February 2000), was a Zambian national who had been refused leave to enter Sweden, where she had previously lived and where she had been treated for HIV. The applicant submitted medical evidence to the effect that life-prolonging treatment would have a much better success rate if she was given the chance to continue it in Sweden since the standard of care and monitoring possibilities in Zambia were reduced in comparison. The Court declared the application inadmissible, on the basis that, according to a report from the Swedish embassy in Zambia, the same type of Aids treatment was available there, although at considerable cost, and that the applicant’s children as well as other family members lived there. Taking into account the applicant’s present state of health, her removal to Zambia would not amount to treatment proscribed by Article 3. 38. The following year the Court delivered judgment in Bensaid v. the United Kingdom (no. 44599/98, ECHR 2001-I). The applicant, an Algerian national, was a schizophrenic who had been treated for this illness for some years in the United Kingdom. The Court unanimously rejected the complaint under Article 3 and held as follows (§§ 36-40): “In the present case, the applicant is suffering from a long-term mental illness, schizophrenia. He is currently receiving medication, olanzapine, which assists him in managing his symptoms. If he returns to Algeria, this drug will no longer be available to him free as an outpatient. He does not subscribe to any social insurance fund and cannot claim any reimbursement. It is, however, the case that the drug would be available to him if he was admitted as an inpatient and that it would be potentially available on payment as an outpatient. It is also the case that other medication, used in the management of mental illness, is likely to be available. The nearest hospital for providing treatment is at Blida, some 75 to 80 km from the village where his family live. The difficulties in obtaining medication and the stress inherent in returning to that part of Algeria, where there is violence and active terrorism, would, according to the applicant, seriously endanger his health. Deterioration in his already existing mental illness could involve relapse into hallucinations and psychotic delusions involving self-harm and harm to others, as well as restrictions in social functioning (such as withdrawal and lack of motivation). The Court considers that the suffering associated with such a relapse could, in principle, fall within the scope of Article 3. The Court observes, however, that the applicant faces the risk of relapse even if he stays in the United Kingdom as his illness is long term and requires constant management. Removal will arguably increase the risk, as will the differences in available personal support and accessibility of treatment. The applicant has argued, in particular, that other drugs are less likely to be of benefit to his condition, and also that the option of becoming an inpatient should be a last resort. Nonetheless, medical treatment is available to the applicant in Algeria. The fact that the applicant’s circumstances in Algeria would be less favourable than those enjoyed by him in the United Kingdom is not decisive from the point of view of Article 3 of the Convention. The Court finds that the risk that the applicant would suffer a deterioration in his condition if he were returned to Algeria and that, if he did, he would not receive adequate support or care is to a large extent speculative. The arguments concerning the attitude of his family as devout Muslims, the difficulty of travelling to Blida and the effects on his health of these factors are also speculative. The information provided by the parties does not indicate that travel to the hospital is effectively prevented by the situation in the region. The applicant is not himself a likely target of terrorist activity. Even if his family does not have a car, this does not exclude the possibility of other arrangements being made. The Court accepts the seriousness of the applicant’s medical condition. Having regard, however, to the high threshold set by Article 3, particularly where the case does not concern the direct responsibility of the Contracting State for the infliction of harm, the Court does not find that there is a sufficiently real risk that the applicant’s removal in these circumstances would be contrary to the standards of Article 3. The case does not disclose the exceptional circumstances of D. v. the United Kingdom (cited above), where the applicant was in the final stages of a terminal illness, Aids, and had no prospect of medical care or family support on expulsion to St Kitts.” 39. In Arcila Henao v. the Netherlands ((dec.), no. 13669/03, 24 June 2003), the applicant was a national of Colombia who, while serving a prison sentence for drug trafficking, was found to be HIV-positive and was thus treated using antiretroviral medication. The Court found that the applicant’s present condition was reasonable, but that he might relapse if treatment were discontinued. It noted that the required treatment was “in principle” available in Colombia, where the applicant’s father and six siblings resided. The Court distinguished the case from D. v. the United Kingdom and B.B. v. France (both cited above), on the ground that the applicant’s illness had not reached an advanced or terminal stage and that he had a prospect of medical care and family support in his country of origin. It did not, therefore, find that the circumstances of the applicant’s situation were of such an exceptional nature that his expulsion would amount to treatment proscribed by the Convention and it therefore declared the application inadmissible. 40. The applicant in Ndangoya v. Sweden ((dec.), no. 17868/03, 22 June 2004), was a Tanzanian national who had been treated with antiretroviral medication which been successful in reducing his HIV levels to the point where they were no longer detectable. It was said that the prospects of his receiving that treatment in Tanzania were very slim and that its interruption would lead to a relatively rapid deterioration of his immune system, to the development of Aids within one to two years and death within three to four years. The application was declared inadmissible, on the grounds that the applicant’s illness had not reached an advanced or terminal stage; adequate treatment was to be had in Tanzania, albeit at considerable cost and with limited availability in the rural area from whence the applicant came; and that he maintained some links with relatives who might be able to help him. 41. A similar conclusion was reached in Amegnigan v. the Netherlands ((dec.), no. 25629/04, 25 November 2004), where the applicant, who came from Togo, had been treated with antiretroviral treatment in the Netherlands. Medical evidence indicated that as soon as the therapy was stopped he would relapse to the advanced stage of the disease which, given its incurable nature, would entail a direct threat to life. A report on local conditions in Togo indicated that, while the treatment was available there, a person who did not have health insurance would find it difficult to afford it if relatives were unable to provide financial support. The application under Article 3 was declared manifestly ill-founded, on the grounds that the applicant had not reached the stage of full-blown Aids and was not suffering from any HIV-related illness. While acknowledging the assessment of the applicant’s treating specialist doctor that the applicant’s health condition would relapse if treatment would be discontinued, the Court noted that adequate treatment was in principle available in Togo, albeit at a possibly considerable cost. 3. The principles to be drawn from the case-law 42. In summary, the Court observes that since D. v. the United Kingdom it has consistently applied the following principles. Aliens who are subject to expulsion cannot in principle claim any entitlement to remain in the territory of a Contracting State in order to continue to benefit from medical, social or other forms of assistance and services provided by the expelling State. The fact that the applicant’s circumstances, including his life expectancy, would be significantly reduced if he were to be removed from the Contracting State is not sufficient in itself to give rise to breach of Article 3. The decision to remove an alien who is suffering from a serious mental or physical illness to a country where the facilities for the treatment of that illness are inferior to those available in the Contracting State may raise an issue under Article 3, but only in a very exceptional case, where the humanitarian grounds against the removal are compelling. In the D. v. the United Kingdom case the very exceptional circumstances were that the applicant was critically ill and appeared to be close to death, could not be guaranteed any nursing or medical care in his country of origin and had no family there willing or able to care for him or provide him with even a basic level of food, shelter or social support. 43. The Court does not exclude that there may be other very exceptional cases where the humanitarian considerations are equally compelling. However, it considers that it should maintain the high threshold set in D. v. the United Kingdom and applied in its subsequent case-law, which it regards as correct in principle, given that in such cases the alleged future harm would emanate not from the intentional acts or omissions of public authorities or non-State bodies, but instead from a naturally occurring illness and the lack of sufficient resources to deal with it in the receiving country. 44. Although many of the rights it contains have implications of a social or economic nature, the Convention is essentially directed at the protection of civil and political rights (see Airey v. Ireland, 9 October 1979, § 26, Series A no. 32). Furthermore, inherent in the whole of the Convention is a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights (see Soering v. the United Kingdom, 7 July 1989, § 89, Series A no. 161). Advances in medical science, together with social and economic differences between countries, entail that the level of treatment available in the Contracting State and the country of origin may vary considerably. While it is necessary, given the fundamental importance of Article 3 in the Convention system, for the Court to retain a degree of flexibility to prevent expulsion in very exceptional cases, Article 3 does not place an obligation on the Contracting State to alleviate such disparities through the provision of free and unlimited health care to all aliens without a right to stay within its jurisdiction. A finding to the contrary would place too great a burden on the Contracting States. 45. Finally, the Court observes that, although the present application, in common with most of those referred to above, is concerned with the expulsion of a person with an HIV and Aids-related condition, the same principles must apply in relation to the expulsion of any person afflicted with any serious, naturally occurring physical or mental illness which may cause suffering, pain and reduced life expectancy and require specialised medical treatment which may not be so readily available in the applicant’s country of origin or which may be available only at substantial cost. 4. Application of the above principles to the present case 46. The Court observes at the outset that, although the applicant applied for, and was refused, asylum in the United Kingdom, she does not complain before the Court that her removal to Uganda would put her at risk of deliberate, politically motivated, ill-treatment. Her claim under Article 3 is based solely on her serious medical condition and the lack of sufficient treatment available for it in her home country. 47. In 1998 the applicant was diagnosed as having two Aids-defining illnesses and a high level of immunosuppression. As a result of the medical treatment she has received in the United Kingdom her condition is now stable. She is fit to travel and will remain fit as long as she continues to receive the basic treatment she needs. The evidence before the national courts indicated, however, that if the applicant were to be deprived of her present medication her condition would rapidly deteriorate and she would suffer ill heath, discomfort, pain and death within a few years (see paragraphs 14-17 above). 48. According to information collated by WHO (see paragraph 19 above), antiretroviral medication is available in Uganda, although through lack of resources it is received by only half of those in need. The applicant claims that she would be unable to afford the treatment and that it would not be available to her in the rural area from which she comes. It appears that she has family members in Uganda, although she claims that they would not be willing or able to care for her if she were seriously ill. 49. The United Kingdom authorities have provided the applicant with medical and social assistance at public expense during the nine-year period it has taken for her asylum application and claims under Articles 3 and 8 of the Convention to be determined by the domestic courts and this Court. However, this does not in itself entail a duty on the part of the respondent State to continue to provide for her. 50. The Court accepts that the quality of the applicant’s life, and her life expectancy, would be affected if she were returned to Uganda. The applicant is not, however, at the present time critically ill. The rapidity of the deterioration which she would suffer and the extent to which she would be able to obtain access to medical treatment, support and care, including help from relatives, must involve a certain degree of speculation, particularly in view of the constantly evolving situation as regards the treatment of HIV and Aids worldwide. 51. In the Court’s view, the applicant’s case cannot be distinguished from those cited in paragraphs 36-41 above. It does not disclose very exceptional circumstances, such as in D. v. the United Kingdom (cited above), and the implementation of the decision to remove the applicant to Uganda would not give rise to a violation of Article 3 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 52. The applicant argued under Article 8 that the circumstances facing her on return to Uganda would engage her right to respect for her private life. 53. The Court does not consider that any separate issue arises under Article 8 of the Convention. It is not necessary, therefore, to examine this complaint. | The Court noted that the United Kingdom authorities had provided the applicant with medical treatment during the nine years it had taken for her asylum application and claims to be determined by the domestic courts and the Court. The Convention did not place an obligation on States parties to account for disparities in medical treatment in States not parties to the Convention by providing free and unlimited medical treatment to all aliens without a right to stay within their jurisdiction. Therefore, the United Kingdom did not have the duty to continue to provide for the applicant. If she were removed to Uganda, there would not be a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention. |
60 | Adoption | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Adoption 17. There are two types of adoption in French law: full adoption and simple adoption. 1. Full adoption 18. A full-adoption order can be made only while the child is still a minor and may be requested by a married couple or by one person. It creates a legal parent-child relationship which takes the place of the original relationship (if such existed). The child takes on the adoptive parent’s surname. A new birth certificate is drawn up and the adoption is irrevocable (Articles 355 et seq. of the Civil Code). 2. Simple adoption 19. A simple-adoption order, by contrast, does not sever the ties between the child and his or her original family, but creates an additional legal parent ‑ child relationship (Articles 360 et seq. of the Civil Code). The order can be made irrespective of the age of the person being adopted, including when he or she has reached the age of majority. The adoptive parent’s surname is added to that of the adoptee. The latter retains some inheritance rights in his or her family of origin and acquires rights vis-à-vis the adoptive parent. Simple adoption gives rise to reciprocal obligations between adopter and adoptee, in particular a maintenance requirement. The biological parents are required to support the adopted person financially only if the adoptive parent is unable to do so. Where the adoptee is a minor, simple adoption results in all the rights associated with parental responsibility being removed from the child’s father or mother in favour of the adoptive parent. The legislation provides for one exception to this rule, namely where an individual adopts the child of his or her spouse. In this case, the husband and wife share parental responsibility. Hence: Article 365 of the Civil Code “All rights associated with parental responsibility shall be vested in the adoptive parent alone, including the right to consent to the marriage of the adoptee, unless the adoptive parent is married to the adoptee’s mother or father. In this case, the adoptive parent and his or her spouse shall have joint parental responsibility, but the spouse shall continue to exercise it alone unless the couple make a joint declaration before the senior registrar of the tribunal de grande instance to the effect that parental responsibility is to be exercised jointly. ...” Unlike a full-adoption order, a simple-adoption order may be revoked at the request of the adoptive parent, the adoptee or, where the latter is a minor, the public prosecutor. Simple adoption is largely aimed, where minors are concerned, at compensating for the failings of the biological parent or parents. In practice, most cases of full adoption are overseas adoptions, while the great majority of simple-adoption orders granted within families concern persons having reached the age of majority, and are often inheritance-related. B. Parental responsibility 20. Parental responsibility is defined as the complete set of parents’ rights and responsibilities towards their minor children. It is aimed at protecting children’s “health, safety and morals, in order to ensure their education and development” (Article 371-1 of the Civil Code). In principle, once parentage has been established, the parents of a minor child automatically have parental responsibility, which can only be withdrawn on serious grounds. Parental responsibility ends when the child reaches the age of majority, normally at 18. A distinction is made between parental responsibility and the exercise of parental responsibility; the latter may be entrusted to just one parent for reasons relating to the child’s best interests. The parent not exercising parental responsibility retains the right and the obligation to oversee the maintenance and upbringing of his or her children. He or she must be informed of important decisions concerning them and may not be deprived of contact rights and the right to overnight visits without compelling reasons. 21. It is possible to delegate parental responsibility to a third party (Articles 376 et seq. of the Civil Code). Since the enactment of the Law of 4 March 2002 on parental responsibility, Article 377 of the Civil Code, which governs the “standard” delegation of parental responsibility, provides that, where the circumstances so require, one or both parents may apply to the family judge to have the exercise of parental responsibility delegated to a third party (an individual, an approved institution or the child welfare services for the département concerned). The delegation of responsibility is not permanent and does not encompass the right to consent to adoption. In this context, parental responsibility may be transferred in whole or in part: parental responsibility continues to be vested in the parents, but its exercise is handed over to the third party. 22. Within the standard delegation procedure, the Law of 4 March 2002 introduced a more flexible delegation option based on the sharing of parental responsibility (Article 377-1 of the Civil Code). The order delegating parental responsibility may stipulate, “in the interests of the child’s upbringing”, that one or both parents are to share the exercise of their parental responsibility in whole or in part with the third party, thus retaining shared responsibility. This measure makes it possible to regulate the relationship between the child, the separated couple and the third parties, whether they be grandparents, step-parents or live-in partners. Each parent retains parental responsibility and continues to exercise it. The delegation of responsibility does not entail any change of surname or the establishment of a legal parent-child relationship; it is temporary and ceases to have effect once the child reaches the age of majority. C. Marriage and civil partnerships 23. In France, marriage is not available to same-sex couples (Article 144 of the Civil Code). This principle was reaffirmed by the Court of Cassation, which, in a judgment delivered on 13 March 2007, reiterated that “in French law, marriage is a union between a man and a woman”. 24. A civil partnership is defined by Article 515-1 of the Civil Code as “a contract entered into by two individuals of full age, of opposite sex or of the same sex, for the purposes of organising their life together”. Civil partnerships entail a number of obligations for those who enter into them, including the obligation to live as a couple and lend each other material and other support. Civil partnerships also confer certain rights on the parties, which increased with the entry into force on 1 January 2007 of the Law of 23 June 2006 on the reform of the arrangements concerning inheritance and gifts. Hence, the partners constitute a single household for tax purposes; they are also treated in the same way as married couples for the purposes of exercising certain rights, particularly in relation to health and maternity insurance and life assurance. Some effects deriving from marriage remain inapplicable to civil partnerships. Among other things, the legislation does not give rise to any kinship or inheritance ties between the partners. In particular, the dissolution of the partnership does not entail judicial divorce proceedings but simply involves a joint declaration by both partners or a unilateral decision by one partner which is served on the other (Article 515 ‑ 7 of the Civil Code). Furthermore, civil partnerships have no implications as regards the provisions of the Civil Code concerning legal adoptive relationships and parental responsibility. D. Assisted reproduction 25. Assisted reproduction, which refers to the techniques allowing in vitro fertilisation, embryo transfer and artificial insemination, is governed by Articles L. 2141-1 et seq. of the Public Health Code. Under Article L. 2141 ‑ 2 of the Code, assisted reproduction techniques are authorised in France for therapeutic purposes only, with a view to “remedying clinically diagnosed infertility” or “preventing transmission to the child or partner of a particularly serious disease”. They are available to opposite-sex couples of reproductive age who are married or show proof of cohabiting. 26. In these circumstances, Article 311-20 of the Civil Code provides for legal recognition of paternity for the second parent in the following terms: “Married or cohabiting couples who, in order to conceive, have recourse to medical assistance involving a third-party donor shall give their prior consent, in a manner that ensures confidentiality, before the judge or notary, who shall inform them of the implications of this act as regards the legal parent-child relationship. ... Any man who, having given his consent to assisted reproduction, does not recognise the child born as a result shall incur liability vis-à-vis the mother and the child. A judicial declaration of paternity shall also be issued in his regard. The action shall be brought in conformity with the provisions of Articles 328 and 331.” E. Case-law 1. Refusal of applications for simple adoption of the minor child of an individual’s civil partner 27. The Court of Cassation has issued several rulings on this subject. The first two judgments, delivered on 20 February 2007, concerned cases involving lesbian couples living in a civil partnership and raising children whose sole legal parent was their mother, as their paternity had not been legally established. In both cases the mother’s partner had applied for a simple-adoption order in respect of the children, with the consent of their mother. One of the applications was granted by the Bourges Court of Appeal on the ground, in particular, that “the adoption [was] in the child’s interests”, while the other was rejected by the Paris Court of Appeal. Referring to Article 365 of the Civil Code, the First Civil Division of the Court of Cassation quashed the first Court of Appeal judgment and declared it null and void, in the following terms: “The adoption resulted in parental responsibility for the child being transferred, and in the biological mother, who planned to continue raising the child, being deprived of her rights. Accordingly, although Ms Y had consented to the adoption, the Court of Appeal, in granting the application, acted in breach of the above-mentioned provision;” It upheld the second Court of Appeal judgment as follows: “However, the Court of Appeal correctly observed that Ms Y ..., the children’s mother, would lose parental responsibility in relation to the children were they to be adopted by Ms X, although the couple were cohabiting. It noted that a delegation of parental responsibility could be requested only if the circumstances so required, which had been neither established nor alleged, and that in the present case the delegation or sharing of parental responsibility would, in the context of an adoption, be contradictory since the adoption of a minor was designed to attribute exclusive parental responsibility to the adoptive parent. Accordingly, the Court of Appeal, which, despite the allegations to the contrary, examined the issue, gave lawful grounds for its decision.” (Two judgments of the First Civil Division, Court of Cassation, 20 February 2007, judgments nos. 224 and 221, Bulletin Civil 2007 I, nos. 70 and 71). The Court of Cassation subsequently reaffirmed this approach: “Firstly, the child’s (father or) mother would be deprived of parental responsibility in the event of the child’s adoption, despite being perfectly fit to exercise that responsibility and having given no indication of wishing to reject it. Secondly, Article 365 of the Civil Code provides for the sharing of parental responsibility only in the event of adoption of the spouse’s child; as the French legislation stands, spouses are persons joined by the bonds of marriage. Accordingly, the Court of Appeal, which did not rule in breach of any of the provisions of the European Convention on Human Rights, gave lawful grounds for its decision.” (First Civil Division, Court of Cassation, 19 December 2007, Bulletin Civil 2007 I, no. 392; see also, to similar effect, the judgment of the First Civil Division, Court of Cassation, of 6 February 2008, unpublished, on appeal no. 07-12948 and First Civil Division, Court of Cassation, 9 March 2011). 28. The first two judgments, delivered on 20 February 2007, were published in the Court of Cassation Information Bulletin, on the Internet and in the Court of Cassation’s annual report. 2. Delegation of parental responsibility 29. In a first leading judgment (Court of Cassation, First Civil Division, 24 February 2006, published in the Bulletin), the Court of Cassation granted an application by a same-sex couple living in a civil partnership who sought to take advantage of this option. The court ruled that Article 377-1 of the Civil Code “[did] not prevent a mother with sole parental responsibility from delegating the exercise of that responsibility in whole or in part to the woman with whom she live[d] in a stable and lasting relationship, where the circumstances so require[d] and the measure [was] compatible with the child’s best interests”. The Court of Cassation subsequently tightened up the conditions to be met for the granting of an application to delegate parental responsibility (Court of Cassation, First Civil Division, 8 July 2010, published in the Bulletin). While the conditions laid down remain the same (the circumstances have to require such a measure and it has to be compatible with the child’s best interests), the Court of Cassation now requires applicants to demonstrate that the measure would improve the lives of the children concerned and is essential. This restrictive approach is now applied by the courts hearing such cases on the merits (Paris tribunal de grande instance, 5 November 2010). 3. Constitutional Council decision of 6 October 2010 30. In a case concerning facts similar to those in the present case, the applicants alleged a breach of the constitutional principle of equality and requested the Court of Cassation to transmit a request for a priority preliminary ruling on constitutionality to the Constitutional Council. The Court of Cassation granted the request. 31. In a decision of 6 October 2010, the Constitutional Council held that it was not its task to rule on the constitutionality of the impugned statutory provisions in the abstract, but rather in the light of the Court of Cassation’s consistent interpretation. In the case under consideration, the constitutionality of Article 365 of the Civil Code therefore had to be assessed in the light of the fact that the latter had the effect of prohibiting in principle the adoption of a child by the individual’s partner or cohabitant, as ruled by the Court of Cassation on 20 February 2007. The Constitutional Council began by pointing out that the provisions of Article 365 did not hinder couples from cohabiting or entering into a civil partnership, any more than it prevented the biological parent from involving his or her partner or cohabitant in the child’s upbringing. However, the Constitutional Council ruled that the right to family life as guaranteed by the Constitution did not confer a right to establish a legal adoptive relationship between the child and his or her parent’s partner. The Constitutional Council went on to observe that the legislature had deliberately chosen to confine the option of simple adoption to married couples and that it was not its place to substitute its own assessment for that of the legislature. THE LAW 34. The applicants alleged that they had been subjected to discriminatory treatment based on their sexual orientation, in breach of their right to respect for their private and family life. They relied on Article 14 of the Convention taken in conjunction with Article 8. These two Articles provide: Article 8 “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” Article 14 “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” I. THE GOVERNMENT’S PRELIMINARY OBJECTION 35. As their main submission, the Government reiterated that Article 8 of the Convention was not applicable in the present case. Echoing the arguments already put forward during examination of the admissibility of the application, the Government referred to the Court’s case-law according to which the existence or otherwise of family life, which was not confined to the legal framework of marriage, had to be assessed in each case. However, the Government stressed that, according to the Court’s settled case-law, Article 8 did not guarantee any right to adoption or to the creation of a legal tie between an adult and a child who lived in the same family, still less a right to have a child. Since the Convention did not cover a right to adopt, the Government submitted that the applicants could not claim discrimination in the enjoyment of such a right, as Article 14 had no independent existence. 36. The applicants referred to the arguments put forward during examination of the admissibility of the case. 37. The Court notes that the applicants based their arguments on Article 14 of the Convention taken in conjunction with Article 8 and that the latter does not guarantee either the right to found a family or the right to adopt (see E.B. v. France [GC], no. 43546/02, § 41, 22 January 2008). This was not disputed by the parties. Nevertheless, the Court cannot but observe that examination of the applicants’ specific case leads to the conclusion that they have a “family life” within the meaning of Article 8 of the Convention. Furthermore, sexual orientation falls within the personal sphere protected by Article 8. It follows that the facts of the case come “within the ambit” of at least one Article of the Convention, which may be taken in conjunction with Article 14, on which the applicants rely in the present case. 38. The Court refers in that regard to its decision of 31 August 2010 on the admissibility of the application, in which it found that Article 14 taken in conjunction with Article 8 was applicable in the present case. 39. The Court must therefore dismiss the Government’s preliminary objection and will proceed to examine the merits of the complaint. II. MERITS A. The parties’ submissions 1. The applicants 40. The applicants complained of the refusal of the first applicant’s application to adopt her partner’s daughter. They alleged that the reason given for that refusal, namely the legal consequences of such adoption, which would deprive the child’s mother of parental responsibility, definitively ruled out adoption only for same-sex couples, who – unlike opposite-sex couples – could not marry and thereby take advantage of the provisions of Article 365 of the Civil Code. They submitted that the refusal to grant the first applicant a simple-adoption order in respect of A. for reasons of principle had infringed their right to respect for their private and family life, in a discriminatory manner. 41. The applicants pointed out that A. had been conceived in Belgium via anonymous donor insemination. Although she had been raised from birth by both women, for legal purposes she had only one parent, namely the second applicant. The latter had passed on her surname to A., exercised sole parental responsibility and would leave her property to A. on her death. By contrast, from a legal viewpoint the first applicant had no obligations or rights vis-à-vis the child. The applicants explained that they had sought to remedy that situation by applying for a simple-adoption order, which would have created a legal parent-child relationship in addition to the original relationship. A. would thus have had two parents in the eyes of the law, with the legal certainty that entailed. This had been refused them by the domestic courts. 42. The applicants therefore claimed that they had been subjected to discrimination based on their sexual orientation, since the French authorities prohibited same-sex couples, but not married couples, from obtaining a simple-adoption order. They pointed out that same-sex marriage was still prohibited in France, as indicated by the Court of Cassation in a judgment of 13 March 2007. This discriminatory difference in treatment also applied between same ‑ sex couples who cohabited or had entered into a civil partnership and heterosexual couples in the same situation, since the latter could circumvent the strict requirements of Article 365 of the Civil Code by marrying, an option that was not available to same-sex couples. The applicants stressed that they were not seeking access to marriage in the instant case, but emphasised that the provisions of the Civil Code merely appeared to be neutral but in fact gave rise to indirect discrimination. 43. At the hearing, to illustrate their remarks, the applicants compared the situation of A. with that of another child, A.D. The latter had been conceived via anonymous donor insemination by a woman cohabiting with a man, Mr D. Although A.’s situation was in all respects comparable to A.D.’s, their legal status differed, since by virtue of Article 311-20 of the Civil Code Mr D. had become the child’s legal father without even having to apply for a simple-adoption order (see paragraph 26 above). Hence, whether in relation to everyday life (school enrolment and monitoring of the child’s progress in school) or more serious circumstances (a road traffic accident), A. could be accompanied only by her mother, whereas A.D. could be taken care of by Mr D. Moreover, in the event of the death of the child’s birth mother, A. would become an orphan and could be placed in the care of a guardian or a foster family, whereas custody of A.D. would be entrusted to her legal father. The applicants inferred from this that the French legislation concerning simple adoption and anonymous donor insemination prevented the creation of a legal adoptive relationship between A. and the first applicant, which would have been possible had the latter been a man. While the applicants stressed that they did not wish to call into question the provisions of French law concerning access to anonymous donor insemination, they maintained that there was a difference in treatment under the law depending on whether a couple raising children was made up of two women cohabiting or in a civil partnership or of a woman and a man in the same situation. 44. As a further example the applicants referred to the scenario in which Mr D. died and A.D.’s mother met another man, Mr N., and decided to set up home with him or marry him. Mr N. could apply for a simple-adoption order in respect of A.D., whereas the first applicant could not do the same in relation to A. 45. Two women who cohabited or had entered into a civil partnership, who could not marry, were therefore treated differently from a man and a woman who, if they married, could obtain permission for the mother’s husband to adopt the child under a simple-adoption order, with automatic sharing of parental responsibility. 46. In the applicants’ view, this difference in treatment did not pursue any legitimate aim. In any event, the child’s best interests required that he or she should have the legal protection of two parents rather than just one. Furthermore, according to the applicants, the delegation of parental responsibility on a shared basis (which they had not requested before the domestic courts) would not suffice. This related only to parental responsibility, was temporary and, as from 8 July 2010, had not been readily granted by the national courts (see paragraph 29 above). They stressed that a simple-adoption order, rather than delegation of parental responsibility on a shared basis, provided the best guarantee of the child’s interests. 47. The applicants concluded that the refusal of the application for a simple-adoption order amounted to both direct and indirect discrimination based on sexual orientation, in breach of the Convention. In their view, the French government should propose amendments to the legislation to put an end to that discrimination. 2. The Government 48. The Government first provided a recap of the rules concerning adoption and delegation of parental authority in French law, and the background to them (see paragraphs 17-22 above). As to the present case, the Government had observed at the hearing that the applicants had not applied for the delegation of parental responsibility on a shared basis, although this could be justified in the circumstances (for instance, if the second applicant were to take a trip away from home). 49. Next, the Government submitted that Article 365 of the Civil Code did not give rise to any objective discrimination, since it applied in identical fashion to all unmarried couples, regardless of the composition of the couple. The sole exception provided for by the Article in question, applicable to an individual’s spouse, had been introduced by the legislature with a view to safeguarding the child’s interests. In the Government’s submission, marriage remained an institution which ensured greater stability within couples than other types of union. Moreover, in the case of the break ‑ up of a marriage, the family judge automatically became involved. Civil partnerships, on the other hand, afforded greater leeway with regard to entering into them and terminating them, and did not have any implications in terms of family law or the legal relationship between parents and children. In view of these considerations, the legislature had therefore sought to restrict the possibility of obtaining a simple-adoption order, in order to provide a stable framework for children’s care and upbringing. 50. The Government also rejected the applicants’ argument that discrimination arose indirectly or as a knock-on effect from the fact that marriage in France was available only to heterosexual couples. They observed that, according to the Court’s case-law, family life could exist outside the confines of marriage, just as it could exist without legal ties of parentage. 51. In any event, even if the Court were to find that there was a difference in treatment, the Government were of the view that it was justified and did not amount to discrimination, whether the applicants’ situation was compared with that of a married couple or with that of a heterosexual couple living in a civil partnership or cohabiting. 52. At the hearing the Government stressed in particular that French law on the legal relationship between parents and children was based entirely on the model of sexual difference. In view of this approach, which was a choice made by society, the Government took the view that allowing a child to have ties of parentage with two women or two men was a fundamental reform which could only be undertaken by Parliament. The issue therefore had to be dealt with as a whole in the course of a democratic debate and not through tangential issues such as the sharing of parental responsibility in the context of simple adoption. 3. The third-party interveners 53. The International Federation for Human Rights (FIDH), the International Commission of Jurists (ICJ), the European Region of the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA-Europe), the British Association for Adoption and Fostering (BAAF) and the Network of European LGBT Families Associations (NELFA) submitted a joint intervention to the Court. 54. The organisations in question began by pointing out that there were three distinct situations in which lesbian or gay individuals adopted children: firstly, an unmarried individual might seek to adopt, in a member State where this was permitted (even just as an exception), on the understanding that any partner he or she might have would have no parental rights (individual adoption); secondly, one member of a same-sex couple might seek to adopt the child of the other partner, such that both partners had parental rights vis-à-vis the child (second-parent adoption); finally, both members of a same-sex couple might seek jointly to adopt a child with no connection with either of them, such that both partners simultaneously acquired parental rights vis-à-vis the child (joint adoption). In E.B. v. France (cited above), the Court had ruled in favour of equal access to individual adoption for all persons, regardless of their sexual orientation. The instant case concerned second-parent adoption. 55. In 2011, ten out of the forty-seven Council of Europe member States allowed second-parent adoption, and other countries were considering amending their legislation to permit it. According to the third-party interveners, there therefore appeared to be a growing consensus that, where a child was being raised within a stable same-sex couple, legal recognition of the second parent’s status promoted the child’s welfare and the protection of his or her best interests. 56. Other countries displayed similar trends in the legislation and case-law. Second-parent adoption was possible for same-sex couples in thirteen Canadian provinces, in at least sixteen of the fifty States of the United States of America and in other countries such as Brazil, Uruguay, New Zealand and some parts of Australia. 57. Referring to the United Nations Convention on the Rights of the Child and the relevant case-law of the Court and of certain national courts (such as the United Kingdom’s House of Lords and the South African Constitutional Court), the third-party interveners requested the Court to adopt the same approach, which in their view gave priority to the protection of the child’s interests. B. The Court’s assessment 1. General principles 58. The Court has established in its case-law that in order for an issue to arise under Article 14 there must be a difference in the treatment of persons in relevantly similar situations. Such a difference in treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The Contracting State enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment (see Burden v. the United Kingdom [GC], no. 13378/05, § 60, ECHR 2008), including a different treatment in law (see Marckx v. Belgium, 13 June 1979, § 38, Series A no. 31). 59. On the one hand the Court has held repeatedly that, just like differences based on sex, differences based on sexual orientation require particularly serious reasons by way of justification (see Karner v. Austria, no. 40016/98, § 37, ECHR 2003 ‑ IX; L. and V. v. Austria, nos. 39392/98 and 39829/98, § 45, ECHR 2003 ‑ I; Smith and Grady v. the United Kingdom, nos. 33985/96 and 33986/96, § 90, ECHR 1999 ‑ VI; and Schalk and Kopf v. Austria, no. 30141/04, §§ 96-97, ECHR 2010). 60. On the other hand, the margin of appreciation enjoyed by States in assessing whether and to what extent differences in otherwise similar situations justify a different treatment is usually wide when it comes to general measures of economic or social strategy (see, for example, Schalk and Kopf, cited above, § 97). 2. Application of these principles to the present case 61. The Court notes at the outset that the present case is to be distinguished from the case of E.B. v. France, cited above. The latter concerned the handling of an application for authorisation to adopt made by a single homosexual person. In that case, the Court pointed out that French law allowed single persons to adopt a child, thereby opening up the possibility of adoption by a single homosexual. Against the background of the domestic legal provisions, it considered that the reasons put forward by the Government could not be regarded as particularly convincing and weighty such as to justify refusing to grant the applicant authorisation. The reasons for rejecting her application had therefore related to her personal situation and were found by the Court to be discriminatory (ibid., § 94). 62. The Court notes that the position is different in the present case, in which the applicants complained of the refusal to grant a simple-adoption order in respect of A. In giving reasons for their decision, the national courts found that, since a simple-adoption order would result in the rights associated with parental responsibility being transferred to the adoptive parent, it was not in the child’s best interests, given that the birth mother intended to continue raising the child. In so ruling, the courts applied the provisions of Article 365 of the Civil Code governing the exercise of parental responsibility in the event of simple adoption. As the applicants were not married, they were not covered by the sole exception provided for by that provision. 63. With regard to anonymous donor insemination as provided for in French law, the Court notes that the applicants, without wishing to call into question the conditions in which this is made available, criticised the legal consequences and alleged an unjustified difference in treatment (see paragraph 43 in fine above). The Court observes at the outset that the applicants did not challenge the legislation in question before the national courts. Above all, it notes that while French law provides that anonymous donor insemination is available only to heterosexual couples it also states that it is to be made available for therapeutic purposes only, with a view in particular to remedying clinically diagnosed infertility or preventing the transmission of a particularly serious disease (see paragraphs 25-26 above). Hence, broadly speaking, anonymous donor insemination in France is confined to infertile heterosexual couples, a situation which is not comparable to that of the applicants. In the Court’s view, therefore, the applicants cannot be said to be the victims of a difference in treatment arising out of the French legislation in this regard. The Court further notes that the legislation in question does not allow the creation of the legal adoptive relationship sought by the applicants. 64. The applicants maintained that the French courts’ refusal to grant the first applicant a simple-adoption order in respect of A. infringed their right to respect for their private and family life in a discriminatory manner. They alleged that, as a same-sex couple, they had been subjected to an unjustified difference in treatment compared with heterosexual couples, whether married or not. 65. The Court considers it necessary firstly to examine the applicants’ legal situation compared with that of married couples. It notes that Article 365 of the Civil Code provides for the sharing of parental responsibility in cases where the adoptive parent is the spouse of the biological parent. The applicants cannot avail themselves of this possibility since they are prohibited under French law from marrying. 66. The Court observes at the outset that it has already ruled, in examining the case of Schalk and Kopf, cited above, that Article 12 of the Convention does not impose an obligation on the governments of the Contracting States to grant same-sex couples access to marriage (ibid., §§ 49-64). Nor can a right to same-sex marriage be derived from Article 14 taken in conjunction with Article 8 (ibid., § 101). The Court has further held that, where a State chooses to provide same-sex couples with an alternative means of recognition, it enjoys a certain margin of appreciation as regards the exact status conferred (ibid., § 108). 67. The Court notes that in the instant case the applicants stated that they were not seeking access to marriage but alleged that, since their situation was relevantly similar to that of married couples, they had been subjected to a discriminatory difference in treatment. 68. The Court is not persuaded by this argument. It points out, as it has already held, that marriage confers a special status on those who enter into it. The exercise of the right to marry is protected by Article 12 of the Convention and gives rise to social, personal and legal consequences (see Burden, cited above, § 63, and Shackell v. the United Kingdom (dec.), no. 45851/99, 27 April 2000; see also Nylund v. Finland (dec.), no. 27110/95, ECHR 1999 ‑ VI; Lindsay v. the United Kingdom, no. 11089/84, Commission decision of 11 November 1986, Decisions and Reports 49; and Şerife Yiğit v. Turkey [GC], no. 3976/05, 2 November 2010). Accordingly, the Court considers that, for the purposes of second-parent adoption, the applicants’ legal situation cannot be said to be comparable to that of a married couple. 69. Next, turning to the second part of the applicants’ complaint, the Court must examine their situation compared with that of an unmarried heterosexual couple. The latter may, like the applicants, have entered into a civil partnership or may be cohabiting. In essence, the Court notes that any couple in a comparable legal situation by virtue of having entered into a civil partnership would likewise have their application for a simple-adoption order refused (see paragraphs 19, 24 and 31 above). It does not therefore observe any difference in treatment based on the applicants’ sexual orientation. 70. It is true that the applicants also alleged indirect discrimination based on the fact that it was impossible for them to marry, whereas heterosexual couples could circumvent Article 365 of the Civil Code by that means. 71. However, in that connection the Court can only refer to its previous findings (see paragraphs 66-68 above). 72. Lastly, in the alternative, the Court observes that it has previously acknowledged that the logic behind this approach to adoption, which entails the severing of the existing parental tie between the adopted person and his or her biological parent, is valid for minors (see, mutatis mutandis, Emonet and Others v. Switzerland, no. 39051/03, § 80, 13 December 2007). It considers that, in view of the background to and purpose of Article 365 of the Civil Code (see paragraph 19 above), which governs the exercise of parental responsibility in the event of simple adoption, there is no justification, on the sole basis of a challenge to the application of that provision, for authorising the creation of a dual legal parent-child relationship with A. 73. Accordingly, the Court concludes that there has been no violation of Article 14 of the Convention taken in conjunction with Article 8. | The Court held that there had been no violation of Article 14 (prohibition of discrimination) taken in conjunction with Article 8 (right to respect for private and family life) of the Convention. It saw notably no evidence of a difference in treatment based on the applicants’ sexual orientation, as opposite-sex couples who had entered into a civil partnership were likewise prohibited from obtaining a simple adoption order. |
555 | Way of life, forced evictions and alternative accommodation | II. RELEVANT DOMESTIC LAW AND PRACTICE 1. Provision for gypsy sites 36. Prior to 1994, the Caravan Sites Act 1968 provided in section 6 that it should be the duty of local authorities “to exercise their powers ... so far as may be necessary to provide adequate accommodation for gypsies residing in or resorting to their area”. The Secretary of State could direct local authorities to provide caravan sites where it appeared to him to be necessary (section 9). In addition, approximately 100 million pounds sterling (GBP) was spent under a scheme by which one hundred per cent grants were made available to local authorities to cover the costs of creating gypsy sites. 37. Section 80 of the Criminal Justice and Public Order Act 1994 (“the 1994 Act”), which came into force on 3 November 1994, repealed sections 6-12 of the 1968 Act and the grant scheme referred to above. The change in policy underlying the repeal was explained by the Parliamentary Under-Secretary of State: “In the past 13 years the number of gypsy caravans stationed on unauthorised sites has remained broadly the same... The shortfall in provision has been largely due to natural growth in the gypsy population. Plainly site provision is barely keeping pace with the growth in demand and is not reducing the shortfall... We recognise that council site provision has contributed to alleviating the difficulties experienced by the gypsy community. Indeed the predicament of gypsies in England and Wales is now far different from in 1968. At that time, probably fewer than 10 per cent of gypsy caravans in England and Wales were stationed on authorised sites, whereas the figure is now about 46 per cent. A further 24 per cent are on authorised private sites, and many more are stationed on tolerated sites where they are allowed to stay with reasonable security from eviction. ... We believe that public provision of sites has now reached an acceptable level. Public accommodation has been provided for 46 per cent of the total number of gypsy caravans in England and Wales. We do not believe that it is in the public interest to continue to maintain what has become an open-ended commitment to provide sites for all gypsies seeking accommodation at the public’s expense. It is our view that the right approach now is to encourage more gypsies to establish their own sites through the planning system. We know that many gypsy families would prefer to establish their own sites rather than reside on council sites. The National Gypsy Council has for a long time supported the case for private provision. Private site provision has increased by more than 135 per cent since 1981. Our intention is to encourage that trend.” 38. Local authorities remain empowered to provide gypsy sites under section 24 of the 1960 Act and such sites remain the largest single component of the overall supply. Under current policy guidance, the Government have emphasised the importance that local authorities maintain their existing sites and consider if it is appropriate to provide further sites (Circular 18/94, paragraphs 21-22). In 2000, the Government announced that they were making available 17 million pounds sterling over the period 2001-2004 to help local authorities to maintain their sites. 2. Unauthorised stationing of caravans 39. Section 77 of the 1994 Act gives to a local authority power to direct an unauthorised camper to move. An unauthorised camper is defined as “... a person for the time being residing in a vehicle on any land forming part of the highway, any other unoccupied land or any occupied land without the owner’s consent”. 40. Failure to comply with such a direction as soon as practicable, or re-entry upon the land within three months, is a criminal offence. Local authorities are able to apply to a magistrates’ court for an order authorising them to remove caravans parked in contravention of such a direction (section 78 of the 1994 Act). 41. Guidance issued by the Secretary of State dated 23 November 1994 (Circular 18/94) concerned the unauthorised camping by gypsies and the power to give a direction to leave the land (CJPOA above). Paragraphs 6-9 required local authorities to adopt “a policy of toleration towards unauthorised gypsy encampments”: “6. ... Where gypsies are camped unlawfully on council land and are not causing a level of nuisance which cannot be effectively controlled, an immediate forced eviction might result in unauthorised camping on a site elsewhere in the area which could give rise to greater nuisance. Accordingly, authorities should consider tolerating gypsies’ presence on the land for short periods and could examine the ways of minimising the level of nuisance on such tolerated sites, for example by providing basic services for gypsies e.g. toilets, a skip for refuse and a supply of drinking water. ... 8. Where gypsies are unlawfully camped on Government-owned land, it is for the local authority, with the agreement of the land-owning Department, to take any necessary steps to ensure that the encampment does not constitute a hazard to public health. It will continue to be the policy of the Secretaries of State that Government Departments should act in conformity with the advice that gypsies should not be moved unnecessarily from unauthorised encampments when they are causing no nuisance. 9. The Secretaries of State continue to consider that local authorities should not use their powers to evict gypsies needlessly. They should use their powers in a humane and compassionate fashion and primarily to reduce nuisance and to afford a higher level of protection to private owners of land.” 42. Paragraphs 10-13 further require local authorities to consider their obligations under other legislation before taking any decisions under the 1994 Act. These obligations include their duties concerning pregnant women and newly-born children, the welfare and education of children and the housing of homeless persons. In a judgment of 22 September 1995 ( R. v. Lincolnshire County Council, ex parte Atkinson, R. v. Wealden District Council, ex parte Wales, and R. v. Wealden District Council, ex parte Stratford, unreported), the High Court held that it would be an error of law for any local authority to ignore those duties which must be considered from the earliest stages. 3. Security of tenure on caravan sites 43. Occupiers of gypsy caravan sites run by a local authority receive limited security of tenure pursuant to Part 1 of the 1968 Act. An occupier’s contractual right can be determined by four-week’s notice and he may only be evicted by court order. Local authorities are in addition required to have regard to the guidance on best practice in managing gypsy sites, e.g. such as set out Circular 18/94 concerning statutory duties to support children, to house the homeless and make appropriate educational provision for school-age children. A local authority failing to have regard to that guidance might be subject to challenge by way of judicial review. 44. The Mobile Homes Act 1983 (the 1983 Act) confers further protection upon a person who lives in a caravan or mobile home as his only or main residence. Such a person may not be evicted save by court order and on the site owner having established one of the stated grounds, inter alia, that the court is satisfied that the occupier is in breach of the licence agreement and has failed to remedy that breach within a reasonable time and that it is reasonable for the agreement to be terminated. This protection was conferred on occupiers of caravans on privately owned residential sites and also the occupiers of local authority sites. However, section 5(1) excluded land run by the local authority as a caravan site for gypsies. The effect of this exclusion was analysed by the House of Lords in Greenwich London Borough Council v. Powell (1989) 21 HLR 218: “... the intention of the legislature in the Act of 1983 was clearly to exclude from the definition of ‘protected site’ sites such as that at Thistlebrook provided by local authorities in discharge of their duty under section 6 of the Act of 1968 to accommodate those whom they bona fide believe to be gypsies because they are nomadic for part of the year, notwithstanding that they may establish a permanent residence on the site by returning from year to year; such a site will not become a ‘protected site’ even if some of the erstwhile nomads, as well they may, give up their nomadic way of life entirely. It would be different if the local authority adopted a policy of offering vacancies on the site to static residents with fixed full time employment...” 45. Secure tenants of conventional flats or houses provided or managed by local authorities under the Housing Act 1985 enjoy a similar regime of security of tenure to that conferred upon occupiers of a residential caravan site by the 1983 Act. 46. A number of cases have been brought in the domestic courts challenging the lack of security of tenure on local authority gypsy sites. (a) Somerset County Council v. Frederick Isaacs [2002] EWHC 1014 47. In this case, a gypsy, whose licence to occupy a local authority site had been revoked for alleged misbehaviour, claimed in the proceedings brought for possession of the plot, that the eviction would be in breach of Articles 8 and 14 of the Convention and sought a declaration of incompatibility. 48. In rejecting the gypsy’s claims and ordering possession, the High Court judge, Mr Justice Stanley Burnton, found that the eviction of the applicant would interfere with his rights under Article 8 § 1 but that the statutory framework, as a matter of general principle and policy, satisfied the requirements of Article 8 § 2. He noted two general points: “33. ... First, statutory regulation of housing and the consequences of such regulation are matters of some complexity. For example, while security of tenure may be to the advantage of existing tenants or licensees, it may be to the disadvantage of tenants and licensees generally. In the 1960’s, security of tenure for residential tenants and control of rents were reimposed under the Rent Acts. Doubtless those measures were in the short term interests of residential tenants. However, in the long term they led to a reduction in the supply of privately-rented accommodation, which, on one view, was disadvantageous to residential tenants and potential tenants generally. There is no simple equation between security of tenure and the public interest. 34. The second general consideration is related to the first. Housing is very much ‘the area of policy where the court should defer to the decision of Parliament’... The need for, and the consequences of, legislation in this area are matters for Parliament, not the court... ‘... We do not lose sight of the fact that courts are not primary decision-makers in areas such as housing policy. Strasbourg confers a wide margin of appreciation in such matters... our own courts will give a margin of discretion to elected decision-makers, all the more so if primary legislation is under scrutiny’. Sheffield City Council v. Smart [2002] EWCA Civ. 04 per Laws LJ 35. The policy behind the exempting provisions was clearly stated by Lord Bridge in his speech in the House of Lords in Powell at 1012 ...: ‘Any other construction of ‘protected site’ in section 5(1) of the Act of 1983 would, it seems to me, cause great difficulties both for local authorities and for most of the gypsy community and would undo much of the good work which has been done in this difficult field. Those already established on sites like Thistlebrook would, of course, enjoy full 1983 security of tenure. But local authorities in the position of the council would need to start de novo to discharge their duty under section 6 of the Act of 1968. Many existing designations under section 12 would have to be revoked or would perhaps be automatically invalidated... For the future, local authorities establishing new sites providing accommodation for gypsies would have to be vigilant to prevent their residence acquiring any degree of permanency. This, I think, they could in practice only do by applying a short rule-of-thumb limit of stay, which would be quite contrary to the interests of the gypsy community.’ 36. [Counsel for the defendant gypsy] submitted that this statement was no longer applicable as a result of the abolition of the duty of the local authority to provide sites for gypsies. I do not accept this submission. The statement of Lord Bridge is equally applicable to the sites which local authorities continue to provide, although they are under no duty to do so. Furthermore, as has been seen, central government guidance is that it is important for those sites to be maintained.” 49. The judge quoted at length the evidence of the Secretary of State’s department on the aims of the two statutory frameworks, one applying to all local authority gypsy caravan sites and the other to all other residential caravan sites run by local authorities and private owners: “ ‘ 25. With Part I of the 1968 Act, and with the 1975 and 1983 Acts, Parliament sought to address specific problems of commercial exploitation experienced by occupiers of private sites. There has never been any evidence to suggest that such problems extend to local authority Gypsy sites, and accordingly those legislative provisions that are directed at those problems have not been extended to such sites. The problems faced by Gypsies were wholly different, relating primarily to the acute shortage of sites available to meet their particular accommodation needs. The said problems were addressed by Part II of the 1968 Act, and supplemented by the departmental guidance circulars issued to local authorities. By 1994, the scheme of part II of the 1968 Act was found to have served its purpose as far as it could reasonably be expected to do. There was now a substantial and valuable supply of Gypsy caravan sites provided and operated by local authorities. The emphasis of Government policy has now changed to one of encouraging Gypsies themselves to add to that existing supply. Nevertheless existing local authority supply remains an essential component of the Government’s strategy of securing an adequate level of accommodation for Gypsies. The policy of the 1994 Act is to maintain and safeguard that distinct source of supply. 26. Thus, I draw particular attention to the fact that the statutory protection afforded by Part 1 of the 1968 Act and the 1975 and 1983 Acts has been and still is available to Gypsies if they choose to reside at sites other than those provided by local authorities specifically for Gypsies. In general, the key difference between such sites has been the greater flexibility, which is usually available on local authority Gypsy sites, in order to accommodate the nomadic lifestyle of occupiers. This may allow Gypsies to remain on a site on a short-term basis, or to retain a site for 12 months of the year, while paying a reduced rent as a retainer during the few months of the year while they may be travelling in search of seasonal work. Other local authority sites and private sites, in general, are aimed at longer-term residential occupiers, without the need for such flexibility because they are not pursuing a nomadic lifestyle. 27. Nevertheless, there are of course a number of Gypsies who occupy sites on a long-term basis, and other mobile home residents who do not consider themselves to be Gypsies, but who prefer to occupy private sites on a more short-term basis. The aim of the separate statutory frameworks is to ensure diversity of provision to meet the varying needs of different individuals and families; it is not to classify or categorise individuals or families. Accordingly, Gypsies seeking to settle on a more permanent site may occupy private or local authority (non-Gypsy) sites and benefit from the scheme put in place by Part I of the 1968 Act and the 1983 Act. This diversity of public and private site provision reflects that which is available in housing generally. 28. The separate statutory framework allows for flexibility in meeting the accommodation needs of Gypsies. It appears that the Defendant is effectively arguing in these proceedings in favour of a single statutory framework applicable to all caravan sites, including local authority Gypsy sites. In my view, such a single statutory framework would be detrimental to the interests of Gypsies throughout the country. If the security of tenure provisions of that framework applied equally to local authority Gypsy sites, it would undermine the flexibility that such sites provide in catering for the varied lifestyles of Gypsies. Some may move from site to site on a regular basis, while others may be more permanently based on a site, possibly travelling for a few months each year to take on seasonal work. If each Gypsy were able to rely on security of tenure then every site, whatever its designation, could potentially become a permanent site with no scope to accommodate short-term occupiers. Furthermore, if there were no longer a distinction in the statutory framework allowing flexibility for the provision of Gypsy sites, then there would be nothing to prevent any person residing in a mobile home seeking to occupy a Gypsy site, whether or not they pursue a nomadic lifestyle. Inevitably, fewer sites, if any, could be made available specifically for Gypsies pursing a nomadic lifestyle. ... 32. Experience suggests that local authorities would face difficulties in managing sites if eviction were subject to broad discretionary powers of the courts to suspend or attach conditions to orders. There is a balance to be struck between the latter and the merits of flexibility (already mentioned) that such sites offer in catering for the varying accommodation needs of Gypsies. To this (and in favour of the existing position) must be added the fact that in reaching decisions about evictions local authorities, as responsible bodies, need to take into account the range of obligations and considerations outlined in paragraph 29 above. These amount to significant safeguards against unscrupulous or unjustified evictions. Furthermore local authority decisions in relation to eviction are open to challenge by way of judicial review.’ ” 50. The judge concluded: “38. While I am not over-impressed by the vagueness of the statement in paragraph 32 that ‘experience suggests’, applying the guidance given by Laws LJ in Smart, this evidence satisfies me that the exempting provisions are ‘necessary in a democratic society’, and a proportionate response to a social need, and do not amount to an infringement of Article 8. It is true that occupiers of exempted sites do not have the benefit of the safeguards applicable to introductory tenants. In practice, however, they are able to bring judicial review proceedings where the circumstances justify them, and I do not think that the absence of those safeguards substantially prejudices persons such as the Defendant. Moreover, any such safeguards would detract from the flexibility that Parliament has decided is appropriate for exempted sites. ... 39. I can deal with Article 14 quite shortly. The exemption in section 4(6) of the CSA is justified by the special position of local authorities and the policy considerations referred to above. The exemption is section 5 of the MHA depends on the status of the site owner as a local authority, and not on any personal quality of the licensee or tenant. It therefore raises no question of discrimination contrary to Article 14. Conclusion ... 41. This conclusion is consistent with that of the Commission in P v. UK (App. No. 14751/89) which rejected as inadmissible the complaint by gypsies that their eviction from an exempted site infringed their rights under Articles 8 and 14. Mr Watkinson submitted that this decision was no longer applicable by reason of the abolition of the duty of local authorities to provide sites for gypsies. As I stated above, I do not regard this as a valid distinction between the present position and that before 1994. There are still sites provided by local authorities for gypsies, and indeed if there were none there would be no scope for section 5 of MHA.” (b) R. (Smith) v. Barking and Dagenham London Borough [2002] EWHC 2400 51. In this case, a Romany gypsy, threatened with eviction from a council site, sought a declaration that the provisions of the 1968 Act were in breach of Articles 8 and 14 of the Convention insofar as it failed to provide the protection given to secured tenants of local authority conventional housing. In rejecting the application, Mr Justice Burton noted that the parties had agreed that there had, in the past, been objective justification for the lack of security of tenure of gypsy occupiers of council sites and that the claimant’s case was that, in light of changes, that was no longer the case. He summarised the Secretary of State’s case for justification for the absence of security of tenure as follows: “i. Nomadism. The whole raison d’être for gypsy culture and identity, and indeed its defining factor, given the absence of necessary ethnicity - not all gypsies are Romanies, not least the so-called New Travellers - is nomadism. Hence the definition in section 16 of the 1968 Act... iii. Flexibility. This is reflected in the decision in Isaacs. There is a stock of secure pitches on private sites, where there is security of tenure by virtue of the MHA. It is in respect of private sites that protection from commercial exploitation is necessary, and in any event the safeguard of administrative law remedies is not available. Thus the necessary ‘mix’ of private and council, secure or insecure, pitches, is maintained. Mr Gahagan [Director of Housing at the Department for Transport, Local Government and the Regions] most clearly sets out the effect of these justifications in combination at paragraph 15 of his reply witness statement: ‘There are limited resources for providing publicly funded accommodation, whether it be for gypsies or members of the ‘settled’ community. The Government is trying to make sure that there is provision for gypsies who have a nomadic way of life. There are other alternative forms of occupation for those with a settled way of life, which are as equally available to gypsies as they are to any other person. However if accommodation which was intended for those with a nomadic way of life could become converted into accommodation for those with a settled way of life just by the life choices made by the occupants, then this would make planning for nomadic persons by local and central Government very difficult.’ Dr Kenrick [Chairman of the Romany Institute, expert witness instructed by the claimant], while not challenging the historic justification, submits that it no longer applies: ‘44. Mr Gahagan states that the legislation regarding gypsy accommodation is tailored so as to facilitate a nomadic way of life... The fact is that the nomadic way of life is ending for most gypsies, and therefore the existing legislation is unsatisfactory... 66. In conclusion, the situation today is very different from what was envisaged at the time of the 1968 ... Act and the [MHA]. The examples I have given of the low turnover and lack of vacancies show that council sites are becoming permanent residences for most of the families. They often have mobile homes and utility buildings. In this changed situation there seems no reason why residents should not have the same right as the tenants of council housing or non-Gypsy mobile home sites.’ ” 52. The judge summarised the statements of both Mr Gahagan and Dr Kenrick concerning the differing patterns of life chosen by gypsies: Mr Gahagan emphasised the flexibility necessary to cope with those who move on a regular basis or were permanently based on one site but possibly travelling several months a year while Dr Kenrick stated that position had substantially moved on from the time of the 1968 Act when it was anticipated that 20% of families travelled, that local authorities even encouraged families to become permanent residents by allowing them to leave for periods and pay half rent and that for the small minority that travelled all year round there were the existing small number of transit sites. The judge then summarised the conclusions of the October 2002 report (see below) which was found to be the most significant feature in the evidence before him. 53. The judge concluded: “32. It is plain from the passages of the October 2002 Report that I have cited that it is now accepted that there is a substantial majority that no longer travels for any material period, albeit that there is a substantial minority that does travel. No figures have been produced, and, as Dr Kenrick himself has pointed out, no statistics as to turnover yet exist, but the varied passages from the Report which I have cited in paragraph 30(vi) show that it is accepted that some thinking must now be done. Nevertheless when asked by me whether the Secretary of State wanted an adjournment to consider the position further, Mr Mould clearly stated that no such adjournment was sought, and that his case remains that, rethink though there plainly is going to be, the Secretary of State still accepts the onus of showing that the present legislation can still be justified. This is not a case, as adumbrated in Seymour-Smith and Hooper, where the Government now accepts that the position can no longer be justified but asserts an entitlement to a period to correct discriminatory effects before a declaration is made... but rather a situation where the Government is still in the process of monitoring the position and, until it reaches a conclusion, asserts that the present position can be justified. 33. If this were simply a matter of concluding that there is now a substantial majority of gypsies who are no longer nomadic, whose position can be immediately safeguarded by some new legislation of the kind discussed in general terms in paragraph 31 above, I would not feel inhibited either by the well-established principles of allowing deference and/or a margin of appreciation to Government or Parliament... nor in particular by the principle enunciated by the Court in Mellacher ... whereby the ‘possible existence of alternative solutions does not in itself render the contested legislation unjustified’. However I am satisfied that the position is not so straightforward. There is, in my judgment, quite apart from any simple question of giving security of tenure to those in council caravan sites, a necessary, indeed, crucial, concomitant question to be considered and resolved, before it can be concluded that the present position is unjustified. I conclude that there is a very difficult question of how to define gypsies, to whom security of tenure in such sites is to be given (if it is). If security of tenure is to be given to all long-term caravan occupiers on council sites, as they are on private sites, then how, if at all, is there to be any differentiation between gypsy/traveller occupiers and any other occupiers who wish to place a mobile home on a local authority site, with security of tenure? And if there is to be no such differentiation, then the last state of gypsies whose cultural heritage or spiritual and cultural state of mind is nomadism or travelling may be worse than the first. At present that actual or potential nomadism (‘a substantial nomadic habit of life’) is the justification both for the lack of security of tenure and also for the special arrangements for local authority sites catering especially for them, i.e. within section 24 of the Caravan Sites and Control of Development Act 1960. Dr Kenrick himself refers obliquely to the problem, in paragraph 53 of his witness statement: “ The residents of council sites do not have to retain their Gypsy status (by travelling for an economic purpose...) in order to retain their pitches. ” ... 35. I am satisfied that ... the absence of security of tenure for all gypsy/travellers on all local authority sites, is still appropriate and justified. I have no doubt that the Government will give further thought to the position, as indicated in the October 2002 Report, will obtain the necessary further statistics and will, pursuant to its own declared intention to give protection to gypsies and their way of life, continue monitoring the present position. Meanwhile, the safeguard of judicial review remains, and, although there is some discussion in the Report (pp. 246-7) about the present lack of security of tenure, eviction of residential gypsy occupiers on local authority caravan sites is not flagged up as a present problem...” (c) Sheffield City Council v. Smart [2002] EWCA Civ O4 54. In this case, which dealt with local authority housing for the homeless that fell outside security of tenure provisions, the Court of Appeal rejected the applicants’ claims that their summary eviction breached Articles 6 or 8 of the Convention: “If this court were to hold that a tenant in the circumstances of either of these appellants is by force of Article 8(2) entitled to have the county court judge (or the judicial review court it matters not) decide on the particular facts whether her eviction is disproportionate to the council’s aim (in essence) of managing its housing stock properly, we would in effect thereby convert the non-secure tenancies enjoyed by homeless persons into a form of secure tenancy. We should be imposing a condition, not unlike the requirement of reasonableness presently applicable in relation to secure tenancies under the 1985 Act, which takes the judgment whether possession of the premises should be obtained from the landlord council and gives it to the court...[the appellants’ argument] ... amounts in truth to a ‘macro’ assault on the mechanics of the statutory scheme for protection of homeless persons...” 4. Report on the Provision and Condition of Local Authority Gypsy/Traveller Sites in England (October 2002) 55. This report, issued by the Office of the Deputy Prime Minister, summarises the information and conclusions of research on the extent and quality of local authority gypsy sites carried out by the Centre for Urban and Regional Studies at the University of Birmingham. 56. In the Executive Summary, it is noted that: “– There is no clear, widely understood national policy towards accommodation for Gypsies and other Travellers in England; there is a general feeling that such a policy is needed involving local authorities and others but with a strong lead from central government. – There are around 320 local authority sites providing about 5,000 pitches. It is important that the existing network is retained and currently closed sites brought back into use. ... – We estimate that between 1,000 and 2,000 additional residential pitches will be needed over the next five years. Between 2,000 and 2,500 additional pitches on transit sites or stopping places will also be needed to accommodate nomadism. The latter need to form a national network. – There are obvious barriers to site provision, especially through resistance from the settled community. Many believe a statutory duty and central subsidy are needed to ‘encourage’ local authorities to make provision. Treating site provision in the same way as housing for planning purposes could help. – Site management is more intensive than is usual for social housing management and requires higher staff/resident ratios. It should be ‘firm but fair’. There are areas where greater formality might be introduced, including performance monitoring...” 57. Concerning the legal definition of a gypsy (page 7): “The legal definition of a ‘Gypsy’ is ‘persons of nomadic habit of life, whatever their race or origin’, excluding members of an organised group of travelling showmen or those engaged in travelling circuses. This was clarified in the case of R v. South Hams ex parte Gibbs as ‘persons who wander or travel for the purpose of making or seeking their livelihood not persons who move from place to place without any connection between their movement and their means of livelihood)’. Thus the legal definition is explicitly concerned with habitual lifestyle rather than ethnicity, and may include both ‘born’ Gypsies or Travellers and ‘elective’ Travellers such as the so-called New (Age) Travellers, once a sufficient nomadic habit of life has been established. Alongside the legal definition, there is an ethnic definition of a Gypsy or Traveller... Romany Gypsies were accepted as an ethnic group for race relations legislation in 1989. Irish Travellers ... were accepted as an ethnic group for race relations legislation in August 2000.” 58. Concerning travelling (page 8): “Not all ethnic Gypsies and other Travellers travel regularly. A range of travelling patterns exists. Frequency of travel ranges from full-time Travellers with no fixed base, to families who live in one place most of the year, but still travel with living vehicles for holidays or family events. Some travel long distances across regions even countries, while some regular travellers never leave a single town. Travelling is part of the cultural heritage of traditional Gypsies and Travellers, and is still culturally important, even for those who no longer actively travel... There are some indications that fewer Gypsy/Travellers now travel full-time, and some have ‘settled’ for a combination of reasons related to personal circumstances, greater difficulties in travelling and finding safe places to stop, and a desire for a more comfortable lifestyle and education for children. However it would be unwise to assume that any trend towards greater ‘settlement’ is universal, or unidirectional. Individuals can pass from one pattern of travelling to another in line with family cycle, health and personal circumstances.” 59. Concerning overall Gypsy/Traveller Accommodation Issues (page 11): “In most local authorities Gypsy/Traveller accommodation policies are not well-developed, if they exist at all. ... In part this reflects the lack of a specific duty to consider Gypsy/Traveller needs, and in part a tendency to equate Gypsy/Traveller accommodation with site provision - so an authority without a site has no policy. Where policies exist, they are not always comprehensive and integrated...History and individual personalities seem to have an influence on the approach taken locally. Most policies have been developed without input from Gypsies and other Travellers...” 60. Concerning site dynamics and turnover (pages 28-29): “Most residential Gypsy/Traveller sites appear to have a very low turnover, and are stable. Most residents have lived on site for three years or more on 86% of sites. ...While there are exceptions, the general picture built up of residential Gypsy/Traveller sites is that they are stable, with long-term residents who travel little during the course of a year. It may be that, for many residents, the attractions of the site lie in the possibilities of living in a trailer (attractive for cultural reasons and leaving the option of travel open) and of living within a culturally distinct community among friends and family. This is not necessarily the same as meeting the needs of a nomadic or semi-nomadic population. For many residential site residents, nomadism appears to be a spiritual and cultural state of mind, rather than a day-to-day reality.” (Page 31): “Pitch vacancies on residential sites arise infrequently. Eight out of ten residential sites have a waiting list for places ...” 61. Concerning licence agreements, rules and enforcement (page 31): “Enforcement of licence conditions is an important element in overall site management. The ultimate sanction – very rarely evoked in the case studies - is eviction, but most action occurs well before this stage. ...” 62. Concerning accommodation for nomadism (page 41): “An unknown proportion of Gypsies and other Travellers still actively travel whether throughout the year, seasonally or on special or family occasions. Those who travel throughout the year may have no fixed base at all... There is little formal provision to accommodate Travellers and their trailers while on the road. There are just 300 transit pitches provided on local authority sites. Recent Gypsy counts have shown roughly ten times as many caravans on unauthorised encampments. Even taking into account the unknown number of private transit pitches, it is clear that ‘ nomadism ’ is currently mostly accommodated informally and often – from the viewpoint of both the settled community and Travellers – unsatisfactorily. ... The need for a range of transit accommodation has been recognised for at least forty years, yet supply is still small and, as this research has shown, actually shrinking...” 63. Concerning conclusions and recommendations: “One of the clearest conclusions from the research is the lack of any clear, widely understood national policy towards accommodation for Gypsies and other Travellers in England, and a general feeling that such a policy is needed....” (page 50) “Another very clear conclusion from the research is that Gypsies and other Travellers are often socially excluded and still suffer discrimination in many areas of life. There is a need for a clear central lead to affirm the legitimacy of a nomadic way of life and to challenge racism and discrimination against Gypsies and other Travellers. There is also a need to make Gypsies and other Travellers less ‘invisible’ in policies aimed to help socially and economically disadvantaged groups. ...” (page 51) “Another approach worth considering it to bring site provision more closely within mainstream housing. Given the stability discovered on many residential sites, it seems entirely appropriate to see them as a form of specially adapted housing for Gypsies and other Travellers... Housing associations could become involved in site provision and management and the Housing Corporation could provide social housing grant as for other general and special needs housing. Issues around site licensing and model standards, and tenure (whether or not the Mobile Homes Act 1983 might apply) would need to be clarified.” (page 52) “Residents of residential Gypsy /Traveller sites are licensees with only basic protection against harassment and illegal eviction. Many Gypsy/Travellers and their supporters argue strongly that this is not appropriate and puts Gypsies and other Travellers at a serious disadvantage relative to social housing tenants and especially secure council tenants. Given the changes in tenancies currently being considered, it might be worth thinking further about the status of site residents...” (page 54) 5. Report on Local Authority Gypsy/Traveller Sites in England (July 2003) 64. This report, issued by the Office of the Deputy Prime Minister, provided further information and conclusions of research on the provision and management of local authority gypsy sites carried out by the Centre for Urban and Regional Studies at the University of Birmingham. 65. In the section “Licence Agreements, Rules and Enforcement” (pp. 118-123), it is stated inter alia : “Gypsy/Traveller site pitches are let on a licence rather than a tenancy. This is in itself contentious with some Gypsies and other Travellers and their supporters. As licensees, site residents enjoy less security and fewer rights than council tenants. ... The less security is argued to be justified on the grounds that local authority sites need greater flexibility in order to accommodate the nomadic lifestyle of occupiers. This envisages shorter stays, and the possibility of retaining a pitch for seasonal travelling (see Somerset County Council v. Isaacs, 2002). ... Opinion is mixed between case study respondents on whether site residents should continue as licensees or have some form of tenancy. Some feel that good site management requires the ability to – occasionally and in extreme situations – step in quickly and get a troublemaker off the site. This recognises that violence, crime or anti-social behaviour can have the effect of very quickly emptying a site of residents (who are mobile and take their homes with them) as well as potentially causing severe physical damage to the site and its facilities. The opportunity for prompt action is essential to safeguard the interests of respectable residents and staff who have to visit the site. They therefore do not want anything which gives greater security of tenure. Other local authority respondents argue that licensee status makes Gypsies and other Travellers into second class citizens, and that everything possible should be done to regularise their position alongside tenants in permanent housing. They recognise that most residential sites are now stable and provide long-term accommodation rather than specifically catering for nomadism. They see the advent of introductory tenancies for social housing as a protection against bad behaviour from new residents... Residents occasionally express the argument often made by site managers... against increasing security of tenure because of the need for a power to be able to get rid of bad or disruptive residents quickly in order to protect the interests of the other residents and the quality of the site as a whole. On the other hand, lack of security means that even long-standing residents are dependent on the continued goodwill of the operator, to an extent that few of them seem to realise. The more settled people become, the more important tenure seems likely to be to them as long-term residents begin to improve and develop their plots, build sheds of their own, and so on. Some may acquire mobile homes rather than caravans which would be difficult to move and re-site. It is generally thought hard to find space on an official site – particularly on a good one as there aren’t many sites and a lot of them are thought to be full. It can seem unreasonable that people should still be on four weeks notice if they have lived 20 or 30 years in one place, behaved well over that time and have invested in developments of their plot or home.” 66. According to statistics given, evictions in fact occurred on four out of 76 sites during 2000/1 (5%). On three sites there was a single eviction and on one there were three evictions. Reasons seem to have combined both arrears and anti-social behaviour. THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 67. Article 8 of the Convention provides as relevant: “1. Everyone has the right to respect for his private and family life, his home... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 68. The parties were agreed that Article 8 was applicable in the circumstances of this case and that the eviction of the applicant from the site on which he had lived with his family in his caravans disclosed an interference with his right to respect for his private life, family life and home. 69. The parties were also agreed, in the context of the second paragraph of Article 8, that the interference was “in accordance with the law” and pursued a legitimate aim, namely, the protection of the rights of other occupiers of the site and the Council as owner and manager of the site. 70. The question remaining for examination by the Court is whether the interference was “necessary in a democratic society” in pursuit of that aim. A. Whether the interference was “necessary in a democratic society” 1. The parties’ submissions (a) The applicant 71. The applicant contended that his eviction from the site interfered unjustifiably with his rights under Article 8 of the Convention, as being unnecessary and disproportionate, in particular as he was not given the opportunity to challenge in a court the allegations made against him and his family. He denied that he or members of his family living on the plot had breached any term of the licence as alleged by Council officers and stated that he had no control over the conduct of visitors to the site, such as his adult sons or Michael Maloney. There was significant support for his family from other occupiers of the site which contradicted the situation as described by the Council. He disputed that it was reasonable or proportionate to evict him and his family for reasons relating to other adults. The Council failed to use other methods to control the alleged misbehaviour, such as injunctions or committal proceedings against those adults who were committing the damage or nuisance and appeared to make no distinction concerning the occupation of the two plots, 35 and 36. Nor when the applicant gave undertakings in court on 14 April 2000 did the Council apply for enforcement measures in respect of alleged breaches. 72. Contrary to the Government’s assertions, the applicant submitted that he had no means of requiring the Council to substantiate its allegations against him and thereby resisting the revocation of his licence or preventing the eviction. There was extensive dispute as to the facts and allegations which could not be tested in the summary proceedings or in the judicial review proceedings, which preceded the coming into force of the Human Rights Act 1998. No opportunity was given for the submission of evidence, hearing or cross-examination of witnesses on these matters. As a result, there was no meaningful assessment as to whether the measures were proportionate or justified in pursuit of any legitimate aim. Following the Human Rights Act 1998, the cases before the domestic courts showed that they would not apply the Convention in such a manner as to overturn the system of security of tenure provided for in the legislation. 73. The applicant submitted that, notwithstanding the Government’s explanations about alternative provision, there was no evidence in West Yorkshire of any encouragement for gypsies to purchase and occupy their own private sites. Gypsies in that area who wished security of tenure could not move to privately run sites as there were none. On the contrary there were many examples of enforcement action being taken against gypsies’ occupation of their own land. Nor were there any temporary stopping places with basic facilities as envisaged in Government circulars such as 18/94. Since the repeal of the 1968 Act, there had been a reduction of 27% in local authority site provision for gypsies in Leeds, e.g. from 56 plots to 41. The applicant denied that he was advocating a single statutory framework for all sites, arguing that a particular need for flexibility in gypsy provision could be reflected in grounds available for possession (for example, unmaintained caravans, absence exceeding a particular period), but not by ignoring the need to prove disputed facts. Different regimes should not necessitate that gypsies on local authority sites lose the benefit of court protection to test, for example, an alleged breach of licence. As a Council tenant faced with an allegation of anti-social behaviour could argue his/her case in court, he saw no reason why a gypsy facing such allegations should not be able to do so. 74. As regarded the Government’s policy arguments, he referred to the October 2002 report (paragraphs 55-63 above), which noted that there was in fact no clear national policy on accommodation for gypsies and that the majority of occupants of local authority gypsy sites lived a largely sedentary life, with a very low turnover of vacancies on such sites. In those circumstances, it was not the case that these sites were needed, or used, for the minority of gypsies who followed a substantially nomadic lifestyle and it was appropriate to bring site provision more closely within mainstream housing as a form of specially adapted housing for gypsies. It would be possible to safeguard the interests of the persons of nomadic habit by designating certain pitches for “transit” while at the same time conferring security of tenure on the majority of the residents of local authority gypsy sites. Similar exceptions for special purposes occurred in the Housing Act 1985. 75. The applicant argued that difficulties of proving anti-social behaviour existed equally on other mobile home sites, including privately run gypsy sites, and on housing estates, to which security of tenure did apply. He saw no reason why, if it was reasonable and workable for owners of privately run sites and housing associations and local authority landlords of housing tenants to prove allegations, local authorities who ran gypsy sites could not be required to the do the same. He noted that ample powers were available to a court to deal as a matter of urgency with troublemakers, including the power to grant interim injunctions and the powers under the Anti-social Behaviour Act 2003 which did not require the attendance of witnesses in court. He also disputed that the regime as it existed brought any financial benefit to gypsies through low costs as the cost of a pitch was variable, the average being much the same as rent for a Council house and in his case being almost double. 76. Furthermore, the applicant submitted that in his case, which concerned interference with an important right rendering his family homeless with loss of effective access to education and health services, the margin of appreciation should be narrow rather than wide. He considered that his case could be distinguished from Chapman v. the United Kingdom, ([GC] no. 27138/95, ECHR 2001-I, § 92), relied on by the Government, as that concerned a local planning decision grounded in local knowledge and understanding of local conditions whereas his case concerned assessment of a general policy at national level. (b) The Government 77. The Government submitted the interference was justified as necessary in a democratic society and was proportionate to its objectives. The applicant had agreed to occupy the plot on the terms that neither he, his family nor guests would cause a nuisance and he had been warned by the Council that he was in breach. In the circumstances, the Council was entitled to revoke the licence. Similar terms would have applied to a secure housing tenant. Though the licence did not require the Council to give the applicant the opportunity to challenge the allegations of nuisance made against him, it was a public authority obliged to act lawfully, reasonably, fairly and for the proper purposes for which its powers were conferred. Its decisions were therefore amenable to judicial review and the applicant, who was legally represented, was able to challenge the decision in judicial review proceedings where the High Court found no evidence to doubt the reasonableness and procedural fairness of the Council’s decision. The Council had also taken into account the needs of the applicant and his family in the decision-making process. If there had been no proper basis for the eviction or the applicant had mounted a substantial factual challenge to the asserted justification, the domestic courts would have been able, through their scrutiny, to provide a remedy against arbitrary action. There was however no substantial dispute as to the primary facts as the applicant did not appear to deny that his sons and guests were causing a nuisance. This procedure therefore provided the applicant with a series of important safeguards. In addition to the remedy of judicial review, occupiers had, since 2000, a right of action under the Human Rights Act 1998, pursuant to which the courts can consider directly claims of violation of the Convention (see, for example, Somerset County Council v. Isaacs, paragraphs 47-50 above). 78. While they accepted that the statutory protection from eviction which the applicant enjoyed in respect of the plot was more limited than if his caravan had been on a site other than one provided by a local authority for gypsy accommodation, the Government emphasised that statutory regulation of housing was a matter of some complexity and within the area in which courts should defer to the decision of the democratically elected legislature. A wide margin of appreciation applied equally to this situation as it did in the planning context (see Chapman v. the United Kingdom, cited above, § 92). They argued that the limited degree of protection was justified with regard to the differing aims of the statutory schemes concerned. Regarding the provision for gypsies, it had to be recalled that the 1968 Act had sought to remedy the grave shortage of sites for gypsies who led a nomadic lifestyle by placing a duty on local authorities to provide such sites. By 1994, the Act was found to have served its purpose as far as it could reasonably be expected to, with local authority sites providing the largest contribution to the overall accommodation needs of gypsies. Policy then changed its emphasis to encouraging gypsies to promote their own sites via the planning process. The authorities were keeping the situation under review, as seen in the independent reports issued in October 2002 and July 2003, which did not reveal that the exemption posed any problems in practice in the operation of local authority gypsy sites. It was apparent in the latter report that local authorities used their powers of eviction sparingly and as a sanction of last resort. It remained however an important management tool. 79. Notwithstanding shifts in gypsy habits, the existing local authority supply of sites remained an essential component of the Government’s strategy of ensuring an adequate level of provision for gypsies and the policy of the legislation was to maintain and safeguard that distinct supply. Thus the special regime of tenure applicable to local authority gypsy sites reflected the need to ensure that local authorities were able to operate their gypsy sites in a flexible way that met the special accommodation needs of gypsies consistent with their nomadic lifestyle. To require local authorities to justify in court their management decisions in relation to individual occupiers would add significantly to their administrative burden, increasing costs and licence fees and would reduce the flexibility intended by the framework. The domestic courts examining the cases of Isaacs and Smith concluded, in light of the evidence submitted, that there remained objective justification for current legislative arrangements on local authority gypsy sites (see paragraphs 47-53 above). The issues raised in the recent reports were now the subject of a thorough Government review of policy, which would include the existing regime of tenure on local authority gypsy sites and examine all the competing interests. It was not the case that the reports established that this regime was currently unjustifiable or that there was a readily identifiable and workable alternative regime of greater security of tenure that would overcome the applicant’s complaints in this case. 80. The Government further explained that the policy and object of the mobile homes legislation was to remedy a different problem, namely, the inequality of bargaining power between the mobile home owner and the site owner, in which area there was a deficiency of supply over demand which the private sites, run as businesses, were in a position to exploit, by for example compelling a resident to buy his mobile home from the site owner and then evicting him and forcing him to sell the home back at a significant undervalue. The 1983 Act was designed specifically to remedy such abuses by giving residents of such sites stronger security of tenure. On the other hand, the regime applicable to local authority gypsy sites enabled disruptive occupiers to be dealt with quickly, preventing damage to the site and forestalling the tendency of the other occupiers to leave to avoid the problem. There was the practical advantage that this avoided the need to produce witnesses, there being a reported reluctance for other occupiers to get involved or “inform” on rule-breakers. 2. The Court’s assessment (a) General principles 81. An interference will be considered “necessary in a democratic society” for a legitimate aim if it answers a “pressing social need” and, in particular, if it is proportionate to the legitimate aim pursued. While it is for the national authorities to make the initial assessment of necessity, the final evaluation as to whether the reasons cited for the interference are relevant and sufficient remains subject to review by the Court for conformity with the requirements of the Convention (see, among other authorities, Smith and Grady v. the United Kingdom, nos. 33985/96 and 33986/96, 27 September 1999, §§ 88, ECHR 1999-VI). 82. In this regard, a margin of appreciation must, inevitably, be left to the national authorities, who by reason of their direct and continuous contact with the vital forces of their countries are in principle better placed than an international court to evaluate local needs and conditions. This margin will vary according to the nature of the Convention right in issue, its importance for the individual and the nature of the activities restricted, as well as the nature of the aim pursued by the restrictions. The margin will tend to be narrower where the right at stake is crucial to the individual’s effective enjoyment of intimate or key rights (see, for example, Dudgeon v. the United Kingdom, judgment of 22 October 1981, Series A no. 45, p. 21, § 52; Gillow v. the United Kingdom, judgment of 24 November 1986, Series A, no. 104, § 55). On the other hand, in spheres involving the application of social or economic policies, there is authority that the margin of appreciation is wide, as in the planning context where the Court has found that “[i]n so far as the exercise of discretion involving a multitude of local factors is inherent in the choice and implementation of planning policies, the national authorities in principle enjoy a wide margin of appreciation ( Buckley v. the United Kingdom, judgment of 26 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1292, § 75 in fine ). The Court has also stated that in spheres such as housing, which play a central role in the welfare and economic policies of modern societies, it will respect the legislature’s judgment as to what is in the general interest unless that judgment is manifestly without reasonable foundation (see Mellacher and Others v. Austria, judgment of 19 December 1989, Series A no. 169, p. 27, § 45, Immobiliare Saffi v. Italy [GC], no. 22774/93, ECHR 1999-V, § 49 ). It may be noted however that this was in the context of Article 1 of Protocol No. 1, not Article 8 which concerns rights of central importance to the individual’s identity, self-determination, physical and moral integrity, maintenance of relationships with others and a settled and secure place in the community (see, mutatis mutandis, Gillow v. the United Kingdom, cited above, § 55; Pretty v. the United Kingdom, no. 2346/02, ECHR 2002-III; Christine Goodwin v. the United Kingdom, no. 28957/95, § 90, ECHR 2002-VI). Where general social and economic policy considerations have arisen in the context of Article 8 itself, the scope of the margin of appreciation depends on the context of the case, with particular significance attaching to the extent of the intrusion into the personal sphere of the applicant ( Hatton and others v. the United Kingdom, [GC] no. 36022/97, ECHR 2003-..., §§ 103 and 123). 83. The procedural safeguards available to the individual will be especially material in determining whether the respondent State has, when fixing the regulatory framework, remained within its margin of appreciation. In particular, the Court must examine whether the decision-making process leading to measures of interference was fair and such as to afford due respect to the interests safeguarded to the individual by Article 8 (see Buckley, cited above, pp. 1292-93, § 76, Chapman v. the United Kingdom [GC], no. 27138/95, ECHR 2001-I, § 92). 84. The vulnerable position of gypsies as a minority means that some special consideration should be given to their needs and their different lifestyle both in the relevant regulatory framework and in reaching decisions in particular cases ( Buckley judgment cited above, pp. 1292-95, §§ 76, 80 and 84). To this extent, there is thus a positive obligation imposed on the Contracting States by virtue of Article 8 to facilitate the gypsy way of life (see Chapman, cited above, § 96 and the authorities cited, mutatis mutandis, therein). (b) Application in the present case 85. The seriousness of what was at stake for the applicant is not in doubt. The applicant and his family were evicted from the site where they had lived, with a short absence, for some fourteen to fifteen years, with consequent difficulties in finding a lawful alternative location for their caravans, in coping with health problems and young children and in ensuring continuation in the children’s education. The family was, in effect, rendered homeless, with the adverse consequences on security and well-being which that entails. The Council, and the Government in these proceedings, took the view that the eviction was justified by a breach of the licence conditions, the applicant being responsible for causing nuisance on the site. The applicant contested that he was at fault. It is not for the Court however to assess in retrospect whose version of events was correct as the Council in evicting the applicant relied instead on the power to give 28 days notice to obtain summary possession without proving any breach of licence. While it was variously alleged by Council officers that the applicant’s licence conditions had been breached due to the unruly conduct of persons on his pitch and contended by the applicant that any problems arose from adult visitors from off the site over whom he had no control, the respective merits of the arguments were not examined in the County Court proceedings, which were only concerned with the fulfilment of the formal conditions for the eviction. The central issue in this case is therefore whether, in the circumstances, the legal framework applicable to the occupation of pitches on local authority gypsy sites provided the applicant with sufficient procedural protection of his rights. 86. The serious interference with the applicant’s rights under Article 8 requires, in the Court’s opinion, particularly weighty reasons of public interest by way of justification and the margin of appreciation to be afforded to the national authorities must be regarded as correspondingly narrowed. The Court would also observe that this case is not concerned with matters of general planning or economic policy but with the much narrower issue of the policy of procedural protection for a particular category of persons. The present case may also be distinguished from the Chapman case (cited above), in which there was a wide margin of appreciation, as in that case, it was undisputed that the applicant had breached planning law in taking up occupation of land within the Green Belt in her caravans and claimed, in effect, special exemption from the rules applying to everyone else. In the present case, the applicant was lawfully on the site and claims that the procedural guarantees available to other mobile home sites, including privately run gypsy sites, and to local authority housing, should equally apply to the occupation of that site by himself and his family. 87. The Government have argued, firstly, that there is a need to exempt local authority gypsy sites from security of tenure provisions that apply in other areas of accommodation. Government policy sought to cater for the special needs of gypsies who live a nomadic lifestyle and this, they emphasised, required flexibility in the management of local authority sites. They argued, secondly, that the power to evict summarily was a vital management tool in coping with anti-social behaviour as without speedily removing troublemakers the other gypsy families would tend to abandon the site rather than assisting the local authority by “informing” on others and giving evidence in formal court procedures. As a subsidiary argument, they submitted that the additional costs of court procedures could increase the fees applicable to gypsy sites and thus act to the overall detriment of the gypsy population as a whole. 88. As regards the nomadism argument, the Court notes that it no longer appears to be the case that local authority gypsy sites cater for a transient population. The October 2002 report (see paragraphs 55-63 above) indicates, as has been apparent from the series of cases brought to Strasbourg over the last two decades, that a substantial majority of gypsies no longer travel for any material period. Most local authority sites are residential in character. On 86% the residents have been in occupation for three years or more and there is a very low turnover of vacancies. Of an estimated 5,000 pitches, only 300 are allocated as transit pitches. It is not apparent that it can be realistically claimed that the majority of local authority sites have to provide, or aim to provide, a regular turnover of vacancies to accommodate gypsies who are travelling round or through the area. The Court is not persuaded therefore that the claimed flexibility is related in any substantial way to catering for an unspecified minority of gypsies who remain ‘nomadic’ and for whom a minimum of transit pitches have to be made available. It appears that there are in fact specific sites designated as “transit” sites and that these are distinguished from the vast majority of other local authority gypsy sites. The material before the Court certainly does not indicate that eviction by summary procedure is used as a means of maintaining a turnover of vacant pitches or of preventing families from becoming long-term occupants. 89. As regards the use of summary eviction as a tool in controlling anti-social behaviour, the Court would note that the 2003 report indicates that it is in fact only rarely used – on 5% of sites – and that some local authorities considered that the licence status of gypsies made them second-class citizens and would prefer to regularise their position to bring them into line with other forms of social housing (see paragraphs 64-66). The mere fact that anti-social behaviour occurs on local authority gypsy sites cannot, in itself, justify a summary power of eviction, since such problems also occur on local authority housing estates and other mobile home sites and in those cases the authorities make use of a different range of powers and may only proceed to evict subject to independent court review of the justification for the measure. Notwithstanding the assertion that gypsy attitudes to authority would make court proceedings impractical, it may be noted that security of tenure protection covers privately run gypsy sites to which the same considerations would appear also to apply. Consequently the Court is not persuaded there is any particular feature about local authority gypsy sites which would render their management unworkable if they were required to establish reasons for evicting long-standing occupants. Nor does it find any indication that the gypsies would lose the advantage of low financial costs attaching to local authority sites. According to the submissions of the applicant, which were not contested by the Government, local authority gypsy sites do not benefit from particularly low licence fees and in his case he had to pay double the rate of a local authority housing tenancy. 90. Nor does the gypsy population gain any benefit from the special regime through any corresponding duty on the local authority to ensure that there is a sufficient provision for them (see P. v. the United Kingdom, no. 14751/89, decision on admissibility of 12 December 1990, Decisions and Reports 67, p. 264, concerning the regime applicable before the repeal of section 6 of the Caravan Sites Act 1968 and paragraphs 35-36 above). The October 2002 report noted that 70% of local authorities did not have any written gypsy/traveller accommodation policy and commented that this reflected the lack of a specific duty on local authorities to consider their needs (paragraph 58 above). Since the 1994 Act came into force, there has been only a small net increase in the number of local authority pitches. The case of Chapman, together with the four other applications by gypsies decided by the Grand Chamber ( Beard v. the United Kingdom, no. 24882/94, Coster v. the United Kingdom no. 24876/94, Jane Smith v. the United Kingdom, no. 25154/94, and Lee v. the United Kingdom, no. 25289/94, judgments of 18 January 2001), also demonstrate that there are no special allowances made for gypsies in the planning criteria applied by local authorities to applications for permission to station of caravans on private sites. 91. The Government have pointed out that the domestic courts, since the entry into force of the Human Rights Act 1998, have examined the Convention issues in similar cases and found no violations of Articles 14 or 8. The Court notes that the High Court has reviewed the lack of security of tenure of gypsies on local authority sites in a number of cases. There is force in the Government’s argument that some weight should be attached to the views of national judges who are in principle better placed than an international one to assess the requirements of the society because of their direct and continuous links with that society. However, in Isaacs, the judge commented that he was not over-impressed by the vagueness of ‘experience’ relied on by the Government in justifying the necessity of the regime (see paragraph 50 above), while in Smith, the judge implied that he would have no difficulty in concluding that there were a substantial majority of gypsies who were no longer nomadic whose position could immediately be safeguarded by some new legislation (paragraph 53 above). The Court would observe that the domestic courts stopped short of finding any breach of the provisions of the Convention, having regard inter alia to the perceived existence of safeguards that diminished the impact on the individual gypsy’s rights and to a judicial reluctance to trespass on the legislative function in seeking to resolve the complex issues to which no straightforward answer was possible. The domestic courts’ position cannot therefore be analysed as providing strong support for the justification of continuing the current regime. 92. The existence of other procedural safeguards is however a crucial consideration in this Court’s assessment of the proportionality of the interference. The Government have relied on the possibility for the applicant to apply for judicial review and to obtain a scrutiny by the courts of the lawfulness and reasonableness of the Council’s decisions. It would also be possible to challenge the Council for any failure to take into account in its decision-making relevant matters such as duties towards children (see paragraph 42 above). The Court would recall that the applicant sought permission to apply for judicial review and that permission was refused. In the applicant’s case, his principal objection was based not on any lack of compliance by the Council with its duties or on any failure to act lawfully but on the fact that he and the members of the family living with him on the plot were not responsible for any nuisance and could not be held responsible for the nuisance caused by others who visited the site. Whether or not he would have succeeded in that argument, a factual dispute clearly existed between the parties. Nonetheless, the local authority was not required to establish any substantive justification for evicting him and on this point judicial review could not provide any opportunity for an examination of the facts in dispute between the parties. Indeed, the Government drew the Court’s attention to the Court of Appeal’s decision in Smart, where it was held that to entitle persons housed under homelessness provisions, without security of tenure, to have a court decide on the facts of their cases as to the proportionality of their evictions would convert their occupation into a form of secure tenure and in effect undermine the statutory scheme (paragraph 54 above). While therefore the existence of judicial review may provide a valuable safeguard against abuse or oppressive conduct by local authorities in some areas, the Court does not consider that it can be regarded as assisting the applicant, or other gypsies, in circumstances where the local authority terminates licences in accordance with the applicable law. 93. The Court would not under-estimate the difficulties of the task facing the authorities in finding workable accommodation solutions for the gypsy and traveller population and accepts that this is an area in which national authorities enjoy a margin of appreciation in adopting and pursuing their social and housing policies. The complexity of the situation has, if anything, been enhanced by the apparent shift in habit in the gypsy population which remains nomadic in spirit if not in actual or constant practice. The authorities are being required to give special consideration to a sector of the population which is no longer easy to define in terms of the nomadism which is the raison d’être of that special treatment. 94. However, even allowing for the margin of appreciation which is to be afforded to the State in such circumstances, the Court is not persuaded that the necessity for a statutory scheme which permitted the summary eviction of the applicant and his family has been sufficiently demonstrated by the Government. The power to evict without the burden of giving reasons liable to be examined as to their merits by an independent tribunal has not been convincingly shown to respond to any specific goal or to provide any specific benefit to members of the gypsy community. The references to “flexibility” or “administrative burden” have not been supported by any concrete indications of the difficulties that the regime is thereby intended to avoid (see, mutatis mutandis, Larkos v. Cyprus, [GC], no. 29515/95, ECHR 1999-I, where in finding a violation of Article 14 in conjunction with Article 8 concerning the difference in security of tenure provisions applying between tenants of public and private housing, the Court did not find that the difference in treatment could be justified by the argument that giving the applicant the right to remain indefinitely in a State-owned dwelling would fetter the authorities’ duty to administer State-owned property in accordance with constitutional and legal requirements). It would rather appear that the situation in England as it has developed, for which the authorities must take some responsibility, places considerable obstacles in the way of gypsies pursuing an actively nomadic lifestyle while at the same time excluding from procedural protection those who decide to take up a more settled lifestyle. 95. In conclusion, the Court finds that the eviction of the applicant and his family from the local authority site was not attended by the requisite procedural safeguards, namely the requirement to establish proper justification for the serious interference with his rights and consequently cannot be regarded as justified by a “pressing social need” or proportionate to the legitimate aim being pursued. There has, accordingly, been a violation of Article 8 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION 96. Article 14 of the Convention provides: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” 97. The Court has found above a violation of Article 8 of the Convention. No separate issue arising under Article 14 of the Convention, the Court finds it unnecessary to consider this complaint further. III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 98. Article 1 of Protocol No. 1 provides as relevant: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.” The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” 99. The applicant complained that during the eviction the Council interfered with his personal property by removing essential possessions from the pitch and retaining various items. They failed to return the property promptly and, when they did, dumped it on the roadside. 100. The Court notes that the applicant does not allege that possessions were damaged or lost or that the actions of the Council were unlawful, in which latter case it would have been possible to take action in the courts. To the extent therefore that the removal of the property was a consequential element of the eviction of the applicant and his family from the local authority site, the Court does not find that it raises any separate issues from those considered under Article 8 above and thus finds it unnecessary to examine the complaint further. IV. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 101. Article 6 § 1 of the Convention provides as relevant: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.” 102. The applicant complained under Article 6 that he was unable in the summary possession proceedings to challenge the Council’s allegations of nuisance whether by giving evidence himself or calling witnesses. The applicant was at a substantial disadvantage given the terms of the licence, in respect of which he had not been in a free bargaining position. There was no equality of arms and he was denied any effective access to court against the very serious interference with his home and family. 103. The Court considers that the essence of this complaint, that his eviction was not attended by sufficient procedural safeguards, has been examined under Article 8 above and may be regarded, in the present case, as absorbed by the latter provision. No separate issue therefore arises for determination. V. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 104. Article 13 provides: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. The parties’ submissions 105. The applicant submitted that he had no possibility of obtaining a determination in court of the disputed facts and allegations relied on by the Council in determining his licence. Judicial review did not provide an effective method of challenging the Council’s actions as it did not involve testing of the evidence, while in the summary proceedings the judge had no discretion to investigate the matters but was required to order possession under the terms of Order 24. 106. The Government did not consider that any issue arose, in particular as no arguable claim of a violation was disclosed for the purposes of Article 13 of the Convention. In any event, the applicant could challenge the reasonableness of the Council’s actions in judicial review proceedings and require the Council to show in the County Court that they had lawfully determined the licence. The applicant could also have taken action against any individual officer who had acted unlawfully and the law of tort was available to remedy any unlawful interference with his property. B. The Court’s assessment 107. According to the Court’s case-law, Article 13 applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right (see Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, § 52). 108. The Court has found above that there has been a violation of Article 8. An “arguable claim” therefore arises for the purposes of Article 13. 109. However, the Court recalls that Article 13 does not go so far as to guarantee a remedy allowing a Contracting State’s primary legislation to be challenged before a national authority on grounds that it is contrary to the Convention (see James and others v. the United Kingdom, judgment of 21 February 1986, Series A no. 98, § 85; A. v. the United Kingdom, no. 35373/97, ECHR 2002-X, §§ 112-113). The applicant’s complaints related in essence to the exemption conferred on local authority gypsy sites by the Mobile Homes Act 1983. 110. The Court thus concludes that the facts of the present case disclose no violation of Article 13 of the Convention. VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION 111. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 1. The parties’ submissions 112. The applicant claimed damages in respect of distress and suffering experienced by himself and his family as a result of the eviction proceedings and for the ongoing loss of access to educational facilities, recreational facilities, medical and health services and basic sanitation and refuse disposal occasioned by the eviction. He pointed out that the Cottingley Springs site was the centre of their community and that he had known the people there all their lives. The way in which the eviction was enforced, involving several hours’ detention, caused him significant pain and stress and the applicant and his family had serious difficulties in finding places to station their caravans afterwards, repeatedly being threatened with eviction and being moved on. The stress and uncertainty contributed to the applicant’s wife’s decision to move into a house, thereby causing their separation in May 2001 and a loss of daily contact with his children, who have also had their education disrupted. The applicant claimed that a sum in the range of GBP 100,000 would be appropriate. 113. The Government submitted that the applicant’s central complaint was the lack of any power in the County Court to adjudicate on disputed facts and protect him from eviction save on reasonable grounds. If such adjudication had occurred, it was more than likely, in view of the acknowledged nuisance caused by the applicant’s visitors, that the County Court would have ordered the eviction anyway and the consequences would have been the same. In their view a finding of violation would provide sufficient just satisfaction, though if the Court considered a monetary award was merited, they considered such should be not more than 5,000 euros (EUR). 2. The Court’s assessment 114. The Court notes that it is not possible to speculate as to what would have been the outcome if a form of security of tenure had applied to the applicant’s occupation of a pitch at the Cottingley Springs site. Nonetheless, the applicant was denied the opportunity to obtain a ruling on the merits of his claims that the eviction was unreasonable or unjustified. In addition, he suffered non-pecuniary damage through feelings of frustration and injustice. The Court thus concludes that the applicant sustained some non-pecuniary damage which is not sufficiently compensated by the finding of a violation of the Convention. 115. Deciding on an equitable basis, it awards the applicant the sum EUR 14,000. B. Costs and expenses 116. The applicant claimed a total of GBP 18,781.96 for legal costs and expenses, including GBP 5,370 for solicitors’ costs (at an hourly rate of GBP 150) and GBP 11,867.51 for counsel’s fees, inclusive of value added tax (VAT). 117. The Government considered that the solicitor’s hourly rate was excessive and that a rate of GBP 100 would be more appropriate. They did not challenge counsel’s hourly rate of GBP 90 but considered that the number of hours charged (114.5) was excessive bearing in mind the time also spent by solicitors and relative lack of complexity of the legal issues. They proposed that 30 hours for counsel’s time and attention, namely GBP 2,700, would be more reasonable. 118. The Court observes that counsel entered the application at a relatively late stage, after the case had been declared admissible and in these circumstances seeing some force in the Government’s objection to the amount of hours claimed, has reduced the sum claimed by approximately one quarter. It does not find the sum claimed by the solicitor unreasonable as to hours claimed or quantum overall. In conclusion, taking into account the subject-matter and procedure adopted in this case, together with deduction of the amount of legal aid granted by the Council of Europe, the Court awards, for legal costs and expenses, the sum of EUR 21,643, inclusive of VAT. C. Default interest 119. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 8 (right to respect for private and family life and home) of the Convention, finding that the summary eviction had not been attended by the requisite procedural safeguards, namely the requirement to properly justify the serious interference with his rights. The Court observed in particular that the vulnerable position of gypsies as a minority meant that some special consideration had to be given to their needs and their different lifestyle both in the relevant regulatory framework and in reaching decisions in particular cases. To that extent, there was a positive obligation on the United Kingdom to facilitate the gypsy way of life. |
775 | Deportation of seriously ill persons | RELEVANT legal framework and practice Relevant domestic lawThe Danish Penal Code The Danish Penal Code The Danish Penal Code 75. The relevant articles of the Penal Code read as follows: Article 16 “(1) Persons of unsound mind due to a mental disorder or a comparable condition at the time of committing the act shall not be punished. The same shall apply to persons who are severely mentally impaired. If the offender was temporarily in a state of mental disorder or a comparable condition due to the consumption of alcohol or other intoxicants, he may be punished if this is justified by special circumstances. (2) Persons who, at the time of the act, were slightly mentally deficient are not punishable, except in special circumstances. The same shall apply to persons in a state of affairs comparable to mental deficiency.” Article 68 “If an accused is exempt from punishment pursuant to Article 16, the court may decide on the use of other measures considered expedient to prevent further offences. If less radical measures such as supervision, decisions on place of residence or work, rehabilitation treatment, psychiatric treatment, and so on, are considered insufficient, it may be decided that the person in question must be committed to a hospital for the mentally ill or to an institution for the severely mentally impaired, or placed under supervision with the possibility of administrative placement or in a suitable home or institution offering special attention or care. A person may be committed to safe custody on the conditions referred to in Article 70.” Article 71 “(1) If the question arises of sentencing an accused to placement in an institution or to committal to safe custody in accordance with the provisions of Articles 68-70, the court may appoint a guardian ad litem, in so far as possible a person from his closest relatives, who together with counsel assigned for the defence shall assist the accused during the trial. (2) If the accused has been sentenced to placement or committal as referred to in subsection (1), or if the decision makes such placement or commitment possible, a guardian ad litem must be appointed. The guardian must keep himself informed of the condition of the convicted person and ensure that the stay and other measures are not extended for longer than necessary. The appointment shall lapse when the measure is finally discontinued. (3) The Minister of Justice shall lay down detailed rules on the appointment and remuneration of guardians ad litem and of such persons’ tasks and specific powers.” Article 72 “(1) The Prosecution Service shall ensure that measures under Articles 68, 69 or 70 are not upheld for longer and to a greater extent than necessary. (2) A decision to vary or finally discontinue a measure under Articles 68, 69 or 70 must be made by court order at the request of the convicted person, his guardian ad litem, the Prosecution Service, the management of the institution or the Prison and Probation Service ( Kriminalforsorgen ). Any request from the convicted person, the guardian ad litem, the management of the institution or the Prison and Probation Service must be made to the Prosecution Service, which must bring it before the court as soon as possible. Where a request from a convicted person or his guardian ad litem is not allowed, a new request cannot be made for the first six months following the date of the order. ...” Article 245 “(1) Any person who commits an assault on the person of another in a particularly offensive, brutal or dangerous manner, or is guilty of mistreatment, shall be sentenced to imprisonment for a term not exceeding six years. It shall be considered a particularly aggravating circumstance if such assault causes serious harm to the body or health of another person. ...” Article 246 “The sentence may increase to imprisonment for ten years if an assault on the person of another falling within Article 245 or Article 245a is considered to have been committed in highly aggravating circumstances because it was an act of a particularly aggravating nature or an act causing serious harm or death.” The Aliens Act 76. The relevant provisions of the Aliens Act concerning expulsion, as in force at the relevant time, read as follows: Section 22 “(1) An alien who has been lawfully resident in Denmark for more than the last seven years and an alien issued with a residence permit under section 7 or section 8(1) or (2) may be expelled if – ... (vi) the alien is sentenced, pursuant to the provisions of Parts 12 and 13 of the Penal Code or pursuant to Article 119(1) and (2), Article 180, Article 181, Article 183(1) and (2), Article 183a, Article 186(1), Article 187(1), Article 192a, Article 210(1), Article 210(3), read with Article 210(1), Article 215, Article 216, Article 222, Article 224 and 225, read with Articles 216 and 222, Article 237, Article 245, Article 245a, Article 246, Article 252(2), Article 261(2), Article 262a, Article 276, read with Article 286, Articles 278 to 283, read with Article 286, Article 288 or Article 290(2) of the Penal Code, to imprisonment or another criminal sanction involving or allowing deprivation of liberty for an offence that would have resulted in a punishment of this nature; ...” Section 26 “(1) In deciding on expulsion, regard must be had to the question whether expulsion must be assumed to be particularly burdensome, in particular because of – (i) the alien’s ties with Danish society; (ii) the alien’s age, health and other personal circumstances; (iii) the alien’s ties with persons living in Denmark; (iv) the consequences of the expulsion for the alien’s close relatives living in Denmark, including the impact on family unity; (v) the alien’s limited or non-existent ties with his country of origin or any other country in which he may be expected to take up residence; and (vi) the risk that, in cases other than those mentioned in section 7(1) and (2) and section 8(1) and (2), the alien will be ill-treated in his country of origin or any other country in which he may be expected to take up residence. (2) An alien must be expelled under section 22(1)(iv) to (vii) and section 25 unless the circumstances mentioned in subsection (1) make this conclusively inappropriate.” Section 27 “(1) The periods mentioned in section 11(4), section 17(1), third sentence, and sections 22, 23 and 25a shall be reckoned from the date of the alien’s registration with the Central National Register or, if his application for a residence permit was submitted in Denmark, from the date of submission of that application or from the date when the conditions for the residence permit are satisfied if such date is after the date of application. ... (5) The time the alien has spent in custody prior to conviction or has served in prison or been subject to another criminal sanction involving or allowing deprivation of liberty for an offence that would have resulted in imprisonment shall not be included in the periods mentioned in subsection (1).” Section 32 “(1) As a consequence of a court judgment, court order or decision ordering an alien to be expelled, the alien’s visa and residence permit shall lapse, and the alien shall not be allowed to re-enter and stay in Denmark without special permission (re-entry ban). A re-entry ban may be time-limited and shall be reckoned from the first day of the month following departure or return. The re-entry ban shall apply from the time of the departure or return. (2) A re-entry ban in connection with expulsion under sections 22 to 24 shall be imposed – ... (v) permanently, if the alien is sentenced to imprisonment for more than two years or another criminal sanction involving or allowing deprivation of liberty for an offence that would have resulted in a punishment of this duration.” Section 49 “(1) When an alien is convicted of an offence, the court shall decide in its judgment, upon an application by the public prosecutor, whether the alien will be expelled pursuant to sections 22 to 24 or section 25c or be sentenced to suspended expulsion pursuant to section 24b. If the judgment specifies expulsion, the judgment must state the period of the re-entry ban: see section 32(1) to (4).” Section 50a “(1) Where expulsion has been decided by a judgment sentencing an alien to safe custody or committal under the rules of Articles 68 to 70 of the Criminal Code, the court shall, in connection with a decision under Article 72 of the Criminal Code on varying the measure that involves discharge from hospital or safe custody, decide at the same time to revoke the expulsion if the alien’s state of health makes it conclusively inappropriate to enforce the expulsion. (2) If an expelled alien is subject to a criminal sanction involving deprivation of liberty under the rules of Articles 68 to 70 of the Criminal Code in cases other than those mentioned in subsection (1), the public prosecutor shall, in connection with discharge from hospital, bring the matter of revocation of the expulsion before the court. Where the alien’s state of health makes it conclusively inappropriate to enforce the expulsion, the court shall revoke the expulsion. The court shall assign counsel to defend the alien. The court shall make its decision by court order, which is subject to interlocutory appeal under the rules of Part 85 of the Administration of Justice Act. The court may decide that the alien is to be remanded in custody when on conclusive grounds this is found to be necessary to ensure the alien’s presence.” 77. Concerning the application of section 22 of the Aliens Act, the preparatory work on Act no. 429 of 10 May 2006 amending the Aliens Act indicates that expulsion will be inappropriate in the circumstances mentioned in section 26(1) of the Aliens Act if it would be contrary to international obligations, including Article 8 of the Convention, to expel the alien. 78. In the proceedings before the Grand Chamber, the Government pointed out that the wording of section 32 relating to the ban on re-entry and its duration had been changed by Act no. 469 of 14 May 2018, which had come into force on 16 May 2018. According to the preparatory work on the latter Act, the reasoning behind the amendment had been the political will of the Danish legislature to ensure that the domestic courts ordered the expulsion of criminal aliens more often than had previously been the case while taking account of the Court’s Article 8 case-law. Under the amended legislation, the domestic courts could impose an entry ban for a shorter period if they found that a permanent ban would conflict with Denmark’s international obligations. Accordingly, rather than refraining from expelling a criminal alien, the courts could choose to impose a shorter ban on re-entry. The new version was subjected to further, merely textual, amendments on 9 June 2020, and currently reads as follows: “(1) A re-entry ban shall be imposed to prevent the alien in question from entering and staying in the area specified in the decision without permission – but see subsections (2) and (3) – in the following situations: (i) The alien has been expelled. (ii) The alien has been ordered to leave Denmark immediately or fails to leave the country in accordance with the time limit determined under section 33(2). (iii) The alien is subject to restrictive measures intended to prevent entry and transit as decided by the United Nations or the European Union. (iv) The alien is included in the list referred to in section 29c(1). (v) The alien’s residence permit or right of residence has lapsed under section 21b(1). (2) A re-entry ban shall be imposed on an alien falling within the scope of the EU rules only if the alien in question has been expelled to maintain public policy, public safety or public health. (3) In particular cases, including in respect of family unity, no re-entry ban shall be imposed if the alien is expelled under section 25a(2) or section 25b, or if the alien falls within the scope of subsection (1)(ii). (4) The duration of re-entry bans shall be as follows, but see subsection (5): (i) A period of two years, if the alien is expelled under section 25a or section 25b, or if the alien has been issued with a re-entry ban under subsection (1)(ii), but see paragraph (iii). (ii) A period of four years, if the alien is expelled under section 22, section 23 or section 24 and is issued with a suspended prison sentence or is sentenced to imprisonment for a term not exceeding three months or to another criminal sanction involving or allowing deprivation of liberty for an offence that would have resulted in a punishment of this nature or duration, but see paragraph (v), or if the alien is expelled under section 25c. (iii) A period of five years, if the alien is expelled under section 25(2), provided that the alien is deemed a serious threat to public health, or if the alien is a third-country national and has been issued with a re-entry ban under subsection (1)(ii) or in connection with expulsion under section 25a(2) or section 25b and has entered Denmark in violation of a previous re-entry ban issued under subsection (1)(ii) or in connection with expulsion under section 25a(2) or section 25b or has entered Denmark in violation of a re-entry ban issued by another member State and entered in SIS II. (iv) A period of six years, if the alien is expelled under section 22, section 23 or section 24 and is sentenced to imprisonment for a term of more than three months but not exceeding one year or to another criminal sanction involving or allowing deprivation of liberty for an offence that would have resulted in a punishment of this duration. (v) A period of at least six years, if the alien is expelled under section 22(1)(iv) to (viii), section 23(1)(i), cf. section 22(1)(iv) to (viii), or section 24(1)(i), cf. section 22(1)(iv) to (viii), or if the alien is expelled by judgment and has not been lawfully resident in Denmark for more than the last six months. (vi) A period of twelve years, if the alien is expelled under section 22, section 23 or section 24 and is sentenced to imprisonment for a term of more than one year but not exceeding one year and six months or to another criminal sanction involving or allowing deprivation of liberty for an offence that would have resulted in a punishment of this duration. (vii) Permanently, if the alien is expelled under section 22, section 23 or section 24 and is sentenced to imprisonment for more than one year and six months or to another criminal sanction involving or allowing deprivation of liberty for an offence that would have resulted in a punishment of this duration. (viii) Permanently, if the alien is expelled under section 25(1)(i) or section 25(1)(ii), provided that the alien is deemed a serious threat to public policy or public safety. (ix) Permanently, if the re-entry ban is imposed under subsection (1)(v). (x) For such time as the alien is subject to the restrictive measures referred to in subsection (1)(iii) or is included in the list mentioned in subsection (1)(iv). (5) A re-entry ban of a shorter duration may be imposed in the following cases: (i) The alien is expelled under section 22, section 23 or section 24, and the imposition of a re-entry ban of the duration referred to in subsection (4) will mean that expulsion would for certain be contrary to Denmark’s international obligations. (ii) The alien has been issued with a re-entry ban under subsection (1)(ii) or in connection with expulsion under section 25a(2), section 25b or section 25(1)(ii), provided that the alien is deemed a serious threat to public health, and exceptional reasons, including regard for family and social ties, make it appropriate to impose a re-entry ban of a shorter duration than the periods set out in subsection (4)(i) and (iii). (iii) A permanent re-entry ban under subsection (4)(viii) or (ix) would be contrary to Denmark’s international obligations. (6) A re-entry ban shall be reckoned from the date of the departure or deportation from the area to which the re-entry ban applies. A re-entry ban under subsection (1)(iii) or (iv) shall be reckoned from the date when the alien in question satisfies the conditions for being issued with a re-entry ban under those provisions. A re-entry ban under subsection (1)(v) shall be reckoned from the date when it is found that the alien in question satisfies the conditions for being issued with a re-entry ban if the alien is staying outside Denmark. (7) A re-entry ban imposed on an alien falling within the scope of the EU rules shall be revoked upon application if the alien’s personal conduct is deemed no longer to represent a genuine, present and sufficiently serious threat affecting public policy, public safety or public health. The assessment must take into account any change in the circumstances initially justifying the re-entry ban. An application for the revocation of a re-entry ban must be determined within six months of the submission of the application. In cases other than those provided for in the first sentence hereof, a re-entry ban under subsection (1)(ii) or in connection with expulsion under section 25a(2) or section 25b may be revoked if exceptional reasons, including regard for family unity, make this appropriate. Moreover, a re-entry ban imposed under subsection (1)(ii) may be revoked if the alien has left Denmark by the relevant time ‑ limit for departure. (8) A re-entry ban shall lapse in the following cases: (i) The alien in question is granted residence under sections 7 to 9f, sections 9i to 9n, section 9p or section 9q on the conditions set out in section 10(3) to (6). (ii) The alien in question is issued with a registration certificate or a residence card (see section 6) following an assessment corresponding to the assessment referred to in the first and second sentences of subsection (7). (iii) The alien in question ceases to be subject to the restrictive measures referred to in subsection (1)(iii). (iv) The alien in question ceases to be included in the list referred to in section 29c(1).” Other relevant materialsInstruments of the Council of Europe Instruments of the Council of Europe Instruments of the Council of Europe 79. With regard to the various texts adopted by the Council of Europe in the field of immigration, mention should be made of the Committee of Ministers Recommendations Rec(2000)15 concerning the security of residence of long-term migrants and Rec(2002)4 on the legal status of persons admitted for family reunification, and of Parliamentary Assembly Recommendation 1504 (2001) on the non-expulsion of long-term immigrants. 80. Recommendation Rec(2000)15 states, inter alia : “4. As regards the protection against expulsion (a) Any decision on expulsion of a long-term immigrant should take account, having due regard to the principle of proportionality and in the light of the European Court of Human Rights’ constant case-law, of the following criteria: – the personal behaviour of the immigrant; – the duration of residence; – the consequences for both the immigrant and his or her family; – existing links of the immigrant and his or her family to his or her country of origin. (b) In application of the principle of proportionality as stated in paragraph 4 (a), member States should duly take into consideration the length or type of residence in relation to the seriousness of the crime committed by the long-term immigrant. More particularly, member States may provide that a long-term immigrant should not be expelled: – after five years of residence, except in the case of a conviction for a criminal offence where sentenced to in excess of two years’ imprisonment without suspension; – after ten years of residence, except in the case of a conviction for a criminal offence where sentenced to in excess of five years of imprisonment without suspension. After twenty years of residence, a long-term immigrant should no longer be expellable. (c) Long-term immigrants born on the territory of the member State or admitted to the member State before the age of ten, who have been lawfully and habitually resident, should not be expellable once they have reached the age of eighteen. Long-term immigrants who are minors may in principle not be expelled. (d) In any case, each member State should have the option to provide in its internal law that a long-term immigrant may be expelled if he or she constitutes a serious threat to national security or public safety.” 81. In Recommendation 1504 (2001) the Parliamentary Assembly recommended that the Committee of Ministers invite the governments of member States, inter alia : “11. ... (ii) ... (c) to undertake to ensure that the ordinary-law procedures and penalties applied to nationals are also applicable to long-term immigrants who have committed the same offence; ... (g) to take the necessary steps to ensure that in the case of long-term migrants the sanction of expulsion is applied only to particularly serious offences affecting State security of which they have been found guilty; (h) to guarantee that migrants who were born or raised in the host country and their under-age children cannot be expelled under any circumstances; ...” The Committee of Ministers replied to the Assembly on the matter of non-expulsion of certain migrants on 6 December 2002. It considered that Recommendation Rec(2000)15 addressed many of the concerns of the Assembly and it was thus not minded to devise any new standards. 82. Under the heading “Effective protection against expulsion of family members”, the Committee of Ministers recommended to governments in Recommendation Rec(2002)4 that, where the withdrawal of or refusal to renew a residence permit, or the expulsion of a family member, was being considered: “...member States should have proper regard to criteria such as the person’s place of birth, his age of entry on the territory, the length of residence, his family relationships, the existence of family ties in the country of origin and the solidity of social and cultural ties with the country of origin. Special consideration should be paid to the best interest and well-being of children.” Relevant practice of the European Union 83. In the case of C.K. v. Slovenia (C- 578/16 PPU), at issue was the return to Croatia from Slovenia of an asylum seeker and her husband and newborn child, nationals of third States, Croatia being the appropriate Member State for the processing of her claim. The applicant had had a difficult pregnancy and had been diagnosed with postnatal depression and periodic suicidal tendencies since giving birth. In its judgment of 16 February 2017, the Court of Justice of the European Union (CJEU) held, in particular: “68. It follows from the case-law of the European Court of Human Rights relating to Article 3 of the ECHR ... that the suffering which flows from naturally occurring illness, whether physical or mental, may be covered by Article 3 of the ECHR if it is, or risks being, exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible, provided that the resulting suffering attains the minimum level of severity required by that article (see, to that effect, ECtHR, 13 December 2016, Paposhvili v. Belgium, CE:ECHR:2016:1213JUD004173810, § 174 and 175). ... 70. In that regard, it must be stated, as regards the reception conditions and the care available in the Member State responsible, that the Member States ... are required ... to provide asylum seekers with the necessary health care and medical assistance including, at least, emergency care and essential treatment of illnesses and of serious mental disorders. In those circumstances, and in accordance with the mutual confidence between Member States, there is a strong presumption that the medical treatments offered to asylum seekers in the Member States will be adequate... 71. In the present case, neither the decision to refer nor the material in the case file shows that there are substantial grounds for believing that there are systemic flaws in the asylum procedure and the conditions for the reception of asylum seekers in Croatia, with regard to access to health care in particular, which is, moreover, not alleged by the appellants in the main proceedings. On the contrary, it is apparent from that decision that the Republic of Croatia has, in, inter alia, the town of Kutina, a reception centre designed specifically for vulnerable persons, where they have access to medical care provided by a doctor and, in urgent cases, by the local hospital or even by the hospital in Zagreb. Furthermore, it appears that the Slovenian authorities have obtained from the Croatian authorities an assurance that the appellants in the main proceedings would receive any necessary medical treatment. 72. Moreover, while it is possible that, for certain acute and specific medical illnesses, appropriate medical treatment is available only in certain Member States ... the appellants in the main proceedings have not alleged that this is the case as far as they are concerned. 73. That said, it cannot be ruled out that the transfer of an asylum seeker whose state of health is particularly serious may, in itself, result, for the person concerned, in a real risk of inhuman or degrading treatment ... irrespective of the quality of the reception and the care available in the Member State responsible for examining his application. 74. In that context, it must be held that, in circumstances in which the transfer of an asylum seeker with a particularly serious mental or physical illness would result in a real and proven risk of a significant and permanent deterioration in his state of health, that transfer would constitute inhuman and degrading treatment, within the meaning of that article. 75. Consequently, where an asylum seeker provides ... objective evidence, such as medical certificates concerning his person, capable of showing the particular seriousness of his state of health and the significant and irreversible consequences to which his transfer might lead, the authorities of the Member State concerned, including its courts, cannot ignore that evidence. They are, on the contrary, under an obligation to assess the risk that such consequences could occur when they decide to transfer the person concerned or, in the case of a court, the legality of a decision to transfer, since the execution of that decision may lead to inhuman or degrading treatment of that person... 76. It is, therefore, for those authorities to eliminate any serious doubts concerning the impact of the transfer on the state of health of the person concerned. In this regard, in particular in the case of a serious psychiatric illness, it is not sufficient to consider only the consequences of physically transporting the person concerned from one Member State to another, but all the significant and permanent consequences that might arise from the transfer must be taken into consideration.” 84. The case of MP v. Secretary of State for the Home Department (C ‑ 353/16) involved a Sri Lankan national who had been given leave to remain on United Kingdom territory for the period of his studies and who, after that period expired, had applied for asylum, stating that he had been tortured by the Sri Lankan authorities because he was a member of an illegal organisation. Medical evidence was adduced to the relevant domestic court that the applicant was suffering the after-effects of torture, severe post-traumatic stress disorder and serious depression, showed marked suicidal tendencies, and appeared to be particularly determined to kill himself if he had to return to Sri Lanka. In the judgment of 24 April 2018, the CJEU stated, in so far as relevant: “40. As regards ... the threshold of severity for finding a violation of Article 3 of the ECHR, it follows from the most recent case-law of the European Court of Human Rights that that provision precludes the removal of a seriously ill person where he is at risk of imminent death or where substantial grounds have been shown for believing that, although not at imminent risk of dying, he would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of suffering a serious, rapid and irreversible decline in his state of health resulting in intense suffering or to a significant reduction in life expectancy (see, to that effect, ECtHR, 13 December 2016, Paposhvili v. Belgium, CE:ECHR:2016:1213JUD004173810, § 178 and 183). ... 42. In that regard, the Court has held that, particularly in the case of a serious psychiatric illness, it is not sufficient to consider only the consequences of physically transporting the person concerned from a Member State to a third country; rather, it is necessary to consider all the significant and permanent consequences that might arise from the removal ... Moreover, given the fundamental importance of the prohibition of torture and inhuman or degrading treatment ..., particular attention must be paid to the specific vulnerabilities of persons whose psychological suffering, which is likely to be exacerbated in the event of their removal, is a consequence of torture or inhuman or degrading treatment in their country of origin. 43. It follows that Article 4 and Article 19(2) of the Charter, as interpreted in the light of Article 3 of the ECHR, preclude a Member State from expelling a third country national where such expulsion would, in essence, result in significant and permanent deterioration of that person’s mental health disorders, particularly where, as in the present case, such deterioration would endanger his life.” THE LAW ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 85. The applicant complained that, on account of the state of his mental health, his removal to Turkey had breached Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” The Chamber judgment 86. The Chamber reiterated the principles set out in the case of Paposhvili v. Belgium ([GC], no. 41738/10, 13 December 2016). Whilst accepting that the medication in issue was generally available in Turkey, including in the area where the applicant would most likely settle down, the Chamber observed that, in the present case, the applicant’s follow-up and supervision in connection with intensive outpatient treatment had been an additional important element. Medical evidence showed that the applicant’s current medication should be administered on a daily basis and that a failure to take his medication entailed a risk of worsening his psychotic symptoms and a greater risk of aggressive behaviour. Moreover, the provision of medical treatment to the applicant was an expert task. In particular, in order to prevent a relapse, it was essential that besides medication, the applicant had a regular contact person for supervision, and that a follow-up scheme was in place to make sure that the applicant paid attention to the medical treatment administered. In addition, the applicant needed to undergo blood tests regularly in order to verify that he had not developed an immune disorder, which could be a side-effect of Leponex. 87. The Chamber pointed out that the High Court had not addressed those elements, but had stated, more generally, that the fact that the applicant was aware of his disease and of the importance of adhering to his medical treatment and of taking the drugs prescribed would not make his removal conclusively inappropriate. The Chamber observed, however, that, according to one of the medical experts, the applicant’s awareness of his illness would not suffice to avoid a relapse; it was essential that he also had a regular contact person for supervision. The Chamber found it noteworthy that, in contrast to the City Court, the High Court had not elaborated on that issue. 88. The Chamber considered that returning the applicant to Turkey, where, as he had stated, he had no family or any other social network, would unavoidably cause him additional hardship. This made it even more crucial that, upon his return, he should be provided with the follow-up and supervision necessary for his psychiatric outpatient therapy, as well as for the prevention of the degeneration of his immune system, and, at the very least, with assistance in the form of a regular and personal contact person. It further shared the City Court’s concern that it was unclear whether, if returned to Turkey, the applicant had a real possibility of receiving the relevant psychiatric treatment, including the necessary follow-up and supervision in connection with intensive outpatient therapy. That uncertainty raised serious doubts as to the impact of the removal on the applicant. Accordingly, the Danish authorities should have assured themselves that upon the applicant’s return to Turkey, a regular and personal contact person would be available, offered by the Turkish authorities and suitable to the applicant’s needs. The Chamber concluded that there would be a violation of Article 3 of the Convention if the applicant were to be removed to Turkey without the Danish authorities’ having obtained such assurances. The parties’ submissions before the Grand ChamberThe applicant The applicant The applicant 89. The applicant maintained that the facts of the case disclosed a violation of his rights secured by Article 3 of the Convention. He argued that he suffered from paranoid schizophrenia, a very serious and long-term illness, recognised internationally, including by the World Health Organisation. It had been medically established that this mental illness could be so severe that inadequate treatment could result in a serious, rapid and irreversible decline in patients’ health that was associated with intense suffering, or in a significant reduction in life expectancy, and could pose a threat to such patients’ own safety and to the safety of others. 90. As for the concerns regarding the difficulties in assessing a particular mental condition as being more subjective owing to the risk of symptoms being simulated, the applicant stressed that he had adduced a solid body of medical evidence covering a very long period of his medical history. At various times, three consultant psychiatrists had confirmed his diagnosis, the development of his illness and the evolution of his behaviour, as well as the crucial importance of the follow-up and supervision of the treatment and of other treatment initiatives for the prevention of a relapse. Moreover, the applicant referred to the health professionals’ attempt to reduce his medication at the beginning of 2013, which had destabilised him, with the result that he had displayed psychotic symptoms and had to be immobilised with a belt for a week. In the applicant’s view, that incident had shown how fragile his mental health was and had made it clear that even after years of targeted therapy in a specialist hospital he still needed supervision and medical intervention, and that, at the time of his removal to Turkey, he had not been ready to pursue outpatient treatment independently. 91. The applicant thus argued that he had established a prima facie case by submitting medical evidence which had clearly demonstrated substantial grounds to believe that he would be exposed to a real risk of being subjected to treatment that fell within the scope of Article 3. With reference to the judgment of the City Court dated 14 October 2014, the applicant argued that the Danish authorities were fully aware of the serious risks he would be exposed to in the event of his expulsion. 92. Yet in its decision of 13 January 2015 the High Court had done no more than rely on the general information obtained from MedCOI on the availability of treatment and medication in Turkey (see paragraph 66 above). In relation to the latter, the applicant contended that a wide range of sources had criticised the methods and results of MedCOI’s work. In particular, it was unclear how the information had been obtained; moreover, the information provided was always anonymised, which raised doubts as regards the transparency, accuracy and reliability of the relevant sources. More specifically, in the applicant’s case that information was clearly insufficient to counterbalance the very serious medical evidence submitted by him. 93. Furthermore, even the general availability of psychiatric treatment in Turkey was open to doubt. The applicant referred to the World Health Organisation Mental Health Atlas of 2017, which indicated that there were 1.64 psychiatrists per 100,000 inhabitants in Turkey, the lowest rate of psychiatrists in relation to the country’s population among the countries in the World Health Organisation. Against that background, it was particularly important that the Danish authorities should have examined the question whether the appropriate treatment would actually be accessible to the applicant; however, the High Court had not addressed that issue. 94. The applicant further referred to his current situation, stating that appropriate treatment in his particular case was absent or de facto unavailable to him owing to the lack of essential health services, facilities, resources and/or medicines. He further relied on the fact that he was only able to obtain certain tablets infrequently, as well as the high cost of treatment. The applicant thus stressed that it had been of particular importance for individual assurances to be obtained in his case prior to his expulsion. Given that the foreseeable consequences of the lack of appropriate treatment had been clearly described by the psychiatrists in their statements in the domestic proceedings, it had fallen to the Danish authorities to satisfy themselves that the applicant’s treatment would not be interrupted. That had not been an insurmountable task for them as Denmark had a large embassy in Turkey and could have made efforts to ensure that the applicant’s medical treatment would not be interrupted in the event of his removal. In the absence of such assurances, however, the returning State should have refrained from deporting the applicant. 95. The applicant also disputed the Government’s argument that a contact person was a social measure rather than an element of his medical treatment. He pointed to the psychiatrists’ reports in his case, which had made it clear that a contact person was an integral part of his medical treatment. Such a person had been necessary to ensure that he adhered to his treatment with a view to preventing the risk of relapse, and thereby the risk of self-harm or harm to others; and to maintain awareness of the potentially dangerous side-effects of the treatment. He stressed that he had never requested the same quality of healthcare in Turkey as he had received in Denmark, but had merely asserted the need for essential treatment measures, including a personal contact person, as indicated by the psychiatrists in his case. 96. Although the authorities had obtained information that psychiatric treatment in general was available in Turkey, and even covered by the national healthcare system, a follow-up and supervision scheme by means of a daily contact person to prevent relapse had been essential but was not available; nor had the Danish authorities received any assurances from Turkey that such outpatient therapeutic assistance would be available to him upon his arrival. 97. The applicant further stressed his deplorable situation after expulsion (see paragraphs 70-71 above). He thus contended that the existing case-law in the field and the particular facts of his case strongly supported the Chamber’s finding of a violation of Article 3 of the Convention. The Government 98. The Government insisted that the implementation of the order for the applicant’s expulsion had not breached Article 3 of the Convention. They extensively cited the Court’s case-law in the field of removal of seriously ill aliens and, in particular, relied on the applicable standards established in the Paposhvili judgment (cited above). They argued, however, that it had not been explicitly stated in that judgment whether the standard established in its paragraph 183 also applied to cases concerning the removal of mentally ill aliens. 99. In their view, the standard set out in that paragraph of Paposhvili could not be applied in an identical manner in the latter context. In this regard, they submitted that owing to its nature, symptoms and possible treatment, a mental illness was not comparable with a terminal or other serious physical illness that required continued intensive treatment. A physical illness was based on elements that were objectively visible or measurable to a greater extent than a mental illness, which, owing to its nature, had to be assessed on the basis of psychological factors, such as observations of a person’s behaviour and/or accounts given by the person showing symptoms of such an illness. 100. With regard to the specific criteria listed in paragraph 183 of the Paposhvili judgment (cited above), the Government submitted that the elements of “rapid and irreversible” and to some extent also that of “intense suffering” could not be meaningfully transposed from an assessment of an alien suffering from a very serious physical illness to that of an alien suffering from a very serious mental illness. Accordingly, the interruption of treatment for mental illness could not be assumed to have the same predictable consequences as the interruption of treatment for physical diseases like cancer, renal failure and cardiac diseases. Moreover, people suffering from a mental illness could retain their ability to function well in their everyday life. That made it a very complex task to assess whether a person’s condition had seriously declined, and what criteria should be applied to determine whether the relevant person’s state of health would result in intense suffering. 101. In so far as the standard in question referred to an “irreversible” decline in health, this criterion could not be applied directly to mental illness unless there was a proven risk of consequences such as a substantially increased risk of suicide or self-harm in the event of interruption of treatment. The treatment of a mentally ill person could be interrupted by the person himself or herself if the person lacked insight into his or her own illness, but in the vast majority of cases it was possible to resume the treatment later and to stabilise the person’s condition. 102. With reference to the Court’s case-law concerning the removal of applicants suffering from schizophrenia, the Government further contended that in such cases a thorough analysis had to be made of an individual’s personal situation, and in that context the nature of the illness and the individual’s insight into the illness, including the current need for treatment, were essential elements for determining whether it would be contrary to Article 3 to remove the individual in question. Accordingly, a psychiatric diagnosis, in itself, was insufficient to bring a particular application within the scope of Article 3 of the Convention. The threshold in such cases had to be very high. 103. The Government went on to state that, even assuming that the Paposhvili criteria were applicable in an identical manner in the context of the removal of mentally ill aliens, the threshold for application of Article 3 had not been reached in the present case. They stressed that the threshold criteria had to be fulfilled before the question of the availability of and access to appropriate and sufficient medical treatment became of relevance. In the present case, the Chamber had made no such assessment. In their view, the Court’s assessment should be made on the basis of the factual findings made in the proceedings before the Danish courts, who had carefully assessed the impact of the applicant’s removal on his health in the light of the information adduced by the competent authorities and experts. The medical evidence adduced had not demonstrated, nor had any findings to that effect been made by the domestic courts, that in the event of his removal to Turkey the applicant would be exposed to consequences amounting to “a serious, rapid and irreversible decline in his state of health resulting in intense suffering”, as defined in paragraph 183 of the Paposhvili judgment (cited above). 104. More specifically, the medical evidence before the courts had demonstrated that the applicant had a complete awareness of his illness, was highly motivated to undergo psychiatric treatment, including treatment with psychoactive drugs, and had clearly acknowledged his need for therapy, and that he had good prospects of recovery if subject to follow-up and supervision in connection with intensive outpatient therapy when discharged. No psychiatric evaluation had ever shown that the applicant would endure “intense suffering” in the event of removal to Turkey on account of the lack of access to medical treatment or of assistance in the form of a regular and personal contact person. 105. There was also no evidence to suggest that the applicant’s illness would become “irreversible” if left untreated. Initially, the applicant had not been diagnosed with a mental illness but had only been found to be mentally impaired with a mild to moderate level of functional disability and to be suffering from a personality disorder characterised by immaturity, lack of empathy, emotional instability and impulsivity. The applicant had for the first time been diagnosed with schizophrenia in 2008. However, appropriate treatment had stabilised and eventually improved his condition. His medical history showed that although he had not been treated for schizophrenia for several years, it had been possible for him to commence treatment, with the result that his psychotic symptoms had been relieved and had, at times, disappeared entirely. 106. Since the applicant suffered from a long-term illness that required treatment, a relapse could occur irrespective of whether he had been removed to Turkey or remained resident in Denmark. In any event, even assuming that his treatment would be interrupted in Turkey, the consequences of such interruption would not meet the high threshold of Article 3. 107. The Government went on to argue that the care generally available in Turkey and the extent to which the applicant could actually have access to that care were sufficient and appropriate to treat his illness. On the basis of the available information and evidence, the Danish authorities, and, in particular, the High Court of Eastern Denmark, had considered the care available in Turkey and the extent to which the applicant would have access to it, including with reference to the cost of medication and care, the distance to be travelled in order to have access to care and the availability of medical assistance in a language spoken by the applicant. The Danish courts had therefore carried out a thorough and individual assessment of the impact of the removal on the applicant’s state of health. Accordingly, there had been no “serious doubts” regarding the consequences for the applicant’s removal to Turkey, with the result that there had been no need for the Danish authorities to obtain individual assurances in respect of him. 108. The Chamber had concluded that the Danish authorities should have obtained assurances from the Turkish authorities that the applicant, upon his return, would continue to have access to assistance in the form of a regular and personal contact person. However, this was a social measure and the Chamber’s conclusion had gone further than what followed from the Paposhvili judgment (cited above), which referred to an assurance that a specific type of treatment would be available for a seriously ill man suffering from leukaemia. The Chamber had thus lowered the threshold for when a returning State should obtain an assurance and had thus “invalidated” the well-established case-law, according to which the benchmark was not the level of care existing in the returning State. 109. Lastly, the Government referred to the applicant’s current situation, stating that no evidence had been submitted that he had experienced any relapses or any worsening of his psychotic symptoms after his expulsion to Turkey. In their view, the hardship he had to bear in Turkey – staying indoors and not speaking Turkish – clearly did not amount to a violation of Article 3. They further argued that, in fact, the applicant lived in a Kurdish village, that he spoke Kurdish fluently, and that he still received his Danish disability pension of approximately 1,300 euros (EUR) monthly. Third-party interveners 110. The Dutch, French, German, Norwegian, Russian, Swiss and United Kingdom Governments were granted leave to intervene, as were Amnesty International, a non-governmental organisation, and the Centre for Research and Studies on Fundamental Rights of Paris Nanterre University (CREDOF). (a) Intervening Governments 111. The intervening Governments submitted somewhat similar arguments focusing primarily on the following aspects. 112. Firstly, they argued that the Chamber judgment in the present case had erred in its interpretation of the existing case-law in the field, including the Paposhvili judgment (cited above), and had broadened the scope of Article 3 of the Convention in the context of the expulsion of seriously ill aliens. With reference to the Court’s relevant case-law, the Governments all stressed that the threshold of severity for Article 3 to come into play in cases involving the removal of seriously ill aliens had always been very high. The Paposhvili judgment had been a clarification, not a departure, from that approach. They insisted that the threshold should remain very high and that successful cases under the Paposhvili test should be truly “very exceptional”, given in particular the “prevailing notions” and “present-day conditions” and the need not to impose an excessive burden on the limited resources of Contracting States, as this might seriously impair their ability to maintain economically viable healthcare systems sufficient to care for those who were lawfully resident there. That truth had been apparent even before the COVID-19 crisis but it was all the clearer now. The Governments argued that lowering that threshold would in fact amount to imposing on them a heavy burden of alleviating disparities between their healthcare systems and those of third countries. The protection against expulsion should serve to ensure that the person concerned was not exposed to treatment proscribed by Article 3 of the Convention rather than to provide the best treatment for an existing illness or to increase the chances of recovery. 113. Secondly, the Governments made extensive comments on various aspects of the standard established in the Paposhvili judgment (cited above). They mostly agreed that the Paposhvili test required no adjustment for mentally ill patients and should be applied as it stood, although some interpretation might be useful to make it more suited to mental conditions. The United Kingdom Government argued, in particular, that a serious and rapid decline in mental health, which could be reversed with treatment, would not satisfy the test. They also warned the Court about the possibility of individuals simulating mental conditions which might lead to abuses. In so far as the standard at hand referred to “a significant reduction in life expectancy”, the United Kingdom Government contended that it should exclude cases of possible suicide as those resulted from a deliberate act. More generally, the United Kingdom Government expressed a concern that the wording in question was too vague and broad. They insisted that all the elements of the relevant test should be read together and be regarded as indispensable for the passing of this threshold. In their view, under no circumstances could “a significant reduction in life expectancy” be used as the only element for reaching the above-mentioned threshold. That element was not enough to demonstrate a breach of Article 3 unless it followed from a “serious, rapid and irreversible decline in [one’s] state of health”. 114. The Governments stressed that, in any event, the standard established in the Paposhvili judgment (cited above), which had already expanded the scope of Article 3 for cases concerning the removal of seriously ill aliens, should not be extended further. Several Governments pointed out that they had integrated that standard into their domestic law to comply with their obligations under the Convention. 115. The Governments then invited the Grand Chamber to reaffirm the necessity of first examining the question of whether the requisite threshold had been reached in a particular case – that is, that an applicant “would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy” (referring to Paposhvili, cited above, § 183) – before addressing any other questions such as the availability and accessibility of treatment. This was particularly important in situations involving the expulsion of aliens with mental conditions as those were more subjective than somatic illnesses. In that connection, the Governments criticised the Chamber judgment, stressing that, by omitting that necessary step, the Chamber had, in fact, lowered the requisite Article 3 threshold, which had not been reasonable or justified. 116. The Governments further stressed that it had been for the applicant to demonstrate that, in the absence of appropriate treatment or access to such treatment in the receiving country, he would suffer consequences as established in paragraph 183 of the Paposhvili judgment (cited above). As regards the rules on the burden of proof, the United Kingdom Government also submitted that the relevant parts of the Paposhvili judgment should be interpreted realistically, meaning that Contracting States could not be expected to instruct medical experts to examine every applicant who had applied for leave to remain on medical grounds, or to gather evidence as regards the applicants’ relatives in their country of origin. States could – in suitable cases – gather evidence on the treatment available in a receiving State, but they could not reasonably be expected to gather evidence as to the particular medical needs of individual applicants. 117. The Governments also reflected on the notion of “sufficient and appropriate” treatment in the receiving State, stating that it called for a broad and non-partisan assessment based on objectively verifiable evidence, including independent expertise; and that the domestic courts were better placed than the European Court to make such an assessment in each particular case. In their view, “sufficient and appropriate” treatment should not be regarded as including any social measures. They reiterated that the benchmark was not the level of care existing in the returning State. 118. As regards the accessibility of medical treatment in the receiving country, the Governments argued that there should be no general presumption that because a person was mentally ill, he or she lacked capacity to make decisions about his or her own treatment. Also, whilst a social or family network might be relevant in that context, the lack of any such network would not rule out the possibility for a mentally ill applicant to have actual access to the necessary medical treatment. Contracting States should not be obliged to provide indefinite free healthcare to foreign nationals who had the necessary mental capacity to take decisions on their health care and who were able to access appropriate treatment on return to the receiving State, but who would or might fail to do so. (b) Amnesty International 119. Amnesty International underlined the connection between the right to health, including mental health care and treatment, and the prohibition against torture and other ill-treatment. They pointed to a number of international law instruments highlighting this link and also argued in favour of a rights-based approach to mental-health care and treatment which should emphasise a holistic and multisectoral process involving community support networks and a range of service providers. (c) CREDOF 120. The CREDOF argued in favour of a heightened level of protection for mentally ill patients in removal cases under Article 3 of the Convention. The assessment of whether the available treatment in the receiving country was adequate should include an evaluation of the therapeutic consequences of the treatment in question, the availability of an adequate caring environment and follow-up, as well as the need to view the treatment as a continuing process. With reference to various international cases, the CREDOF especially pointed to the latter two criteria as the key ones, since abruptly interrupting the treatment of certain mental disorders could, by the very nature of such illnesses, have a damaging effect on a patient such as to engage Article 3. It further submitted that, in contrast to patients with physical disorders, mentally ill patients were generally viewed as sometimes being capable of simulating their illness. This situation frequently led to challenges to their condition and also created additional difficulties in making a diagnosis and carrying out the relevant legal assessments. In view of the above, the CREDOF emphasised that the Court should be particularly careful in setting up the relevant standards so as not to dilute the protection of Article 3 in respect of mentally ill aliens. Lastly, it referred to the link between family support and the chances of improvement of mentally ill patients, and also to statistical data to the effect that the group in question ran a considerable risk of suicide. The Court’s assessmentArticle 3: general principles Article 3: general principles Article 3: general principles 121. It is the Court’s settled case-law that Article 3 of the Convention enshrines one of the most fundamental values of a democratic society. It prohibits in absolute terms torture and inhuman or degrading treatment or punishment and its guarantees apply irrespective of the reprehensible nature of the conduct of the person in question (see, among many other authorities, Aswat v. the United Kingdom, no. 17299/12, § 49, 16 April 2013). 122. The prohibition under Article 3 of the Convention does not, however, relate to all instances of ill-treatment. Such treatment has to attain a minimum level of severity if it is to fall within the scope of that Article. The assessment of this minimum is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see N. v. the United Kingdom [GC], no. 26565/05, § 29, ECHR 2008; Paposhvili, cited above, § 174; and Bouyid v. Belgium [GC], no. 23380/09, § 86, ECHR 2015). 123. An examination of the Court’s case-law shows that Article 3 has been most commonly applied in contexts in which the risk of being subjected to a proscribed form of treatment has emanated from intentionally inflicted acts of State agents or public authorities. However, in view of the fundamental importance of Article 3, the Court has reserved to itself sufficient flexibility to address its application in other situations (see Pretty v. the United Kingdom, no. 2346/02, § 50, ECHR 2002 ‑ III, and Hristozov and Others v. Bulgaria, nos. 47039/11 and 358/12, § 111, ECHR 2012 (extracts)). In particular, it has held that suffering which flows from a naturally occurring illness may be covered by Article 3 where it is, or risks being, exacerbated by treatment stemming from measures for which the authorities can be held responsible (see N. v. the United Kingdom, cited above, § 29). Moreover, it is not prevented from scrutinising an applicant’s claim under Article 3 where the source of the risk of proscribed treatment in the receiving country stems from factors which cannot engage either directly or indirectly the responsibility of the public authorities of that country (see Paposhvili, cited above, § 175). Article 3: expulsion of seriously ill aliens 124. In its case-law concerning the extradition, expulsion or deportation of individuals to third countries, the Court has consistently held that as a matter of well-established international law and subject to their treaty obligations, States Parties have the right to control the entry, residence and expulsion of aliens. Nevertheless, the expulsion of an alien by a State Party may give rise to an issue under Article 3 of the Convention where substantial grounds have been shown for believing that the person concerned faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the receiving country (ibid., §§ 172 ‑ 73, and the authorities cited therein). 125. In its judgment in the case of Paposhvili (cited above), the Court reviewed the applicable principles, starting with the case of D. v. the United Kingdom (2 May 1997, Reports of Judgments and Decisions 1997 ‑ III). 126. The Court observed that the D. v. the United Kingdom case concerned the intended expulsion to St Kitts of an alien who was suffering from AIDS which had reached its terminal stages. It had found that the applicant’s removal would expose him to a real risk of dying under most distressing circumstances and would amount to inhuman treatment (ibid., § 53). The case was characterised by “very exceptional circumstances”, owing to the fact that the applicant suffered from an incurable illness and was in the terminal stages, that there was no guarantee that he would be able to obtain any nursing or medical care in St Kitts or that he had family there willing or able to care for him, or that he had any other form of moral or social support (ibid., §§ 52-53). Taking the view that, in those circumstances, his suffering would attain the minimum level of severity required by Article 3, the Court held that compelling humanitarian considerations weighed against the applicant’s expulsion (ibid., § 54). 127. It further observed that since the subsequent case of N. v. the United Kingdom (cited above), in which it had concluded that the applicant’s removal would not give rise to a violation of Article 3, it had declared inadmissible as being manifestly ill-founded numerous applications raising similar issues lodged by aliens who were HIV positive or suffered from other serious physical or mental illnesses. Several judgments had also been adopted; in all of them – with the exception of the case of Aswat (cited above, which concerned the extradition to the United States of a detainee suffering from paranoid schizophrenia) – it had been found that the applicants’ removal would not breach Article 3 of the Convention (see Paposhvili, cited above, § 179). 128. The Court concluded from that recapitulation of the case-law that the application of Article 3 of the Convention only in cases where the person facing expulsion was close to death, which had been its practice since the judgment in N. v. the United Kingdom (cited above), had deprived aliens who were seriously ill, but whose condition was less critical, of the benefit of that provision. Moreover, the case-law subsequent to N. v. the United Kingdom had not provided any more detailed guidance regarding the “ very exceptional cases ” referred to in N. v. the United Kingdom, other than the circumstances contemplated in D. v. the United Kingdom (see Paposhvili, cited above, § 181). 129. In that connection, the Court went on to elucidate what “other very exceptional cases” could be so contemplated, while reiterating that it was essential that the Convention was interpreted and applied in a manner which rendered its rights practical and effective and not theoretical and illusory (ibid., § 182): “183. The Court considers that the ‘other very exceptional cases’ within the meaning of the judgment in N. v. the United Kingdom (§ 43) which may raise an issue under Article 3 should be understood to refer to situations involving the removal of a seriously ill person in which substantial grounds have been shown for believing that he or she, although not at imminent risk of dying, would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy. The Court points out that these situations correspond to a high threshold for the application of Article 3 of the Convention in cases concerning the removal of aliens suffering from serious illness.” 130. As to whether those conditions were satisfied in a given situation, the Court stressed that the national authorities were under an obligation under Article 3 to establish appropriate procedures allowing an examination of the applicants’ fears to be carried out, as well as an assessment of the risks they would face if removed to the receiving country (ibid., §§ 184-85). In the context of those procedures, (a) it is for the applicants to adduce evidence capable of demonstrating that there are substantial grounds for believing that, if the measure complained of were to be implemented, they would be exposed to a real risk of being subjected to treatment contrary to Article 3 (ibid., § 186); (b) where such evidence is adduced, it is for the returning State to dispel any doubts raised by it, and to subject the alleged risk to close scrutiny by considering the foreseeable consequences of removal for the individual concerned in the receiving State, in the light of the general situation there and the individual’s personal circumstances; such an assessment must take into consideration general sources such as reports of the World Health Organisation or of reputable non-governmental organisations and the medical certificates concerning the person in question (ibid., § 187); the impact of removal must be assessed by comparing the applicant’s state of health prior to removal and how it would evolve after transfer to the receiving State (ibid., § 188); (c) the returning State must verify on a case-by-case basis whether the care generally available in the receiving State is sufficient and appropriate in practice for the treatment of the applicant’s illness so as to prevent him or her being exposed to treatment contrary to Article 3 (ibid., § 189); (d) the returning State must also consider the extent to which the applicant will actually have access to the treatment, including with reference to its cost, the existence of a social and family network, and the distance to be travelled in order to have access to the required care (ibid., § 190); (e) where, after the relevant information has been examined, serious doubts persist regarding the impact of removal on the applicant – on account of the general situation in the receiving country and/or their individual situation – the returning State must obtain individual and sufficient assurances from the receiving State, as a precondition for removal, that appropriate treatment will be available and accessible to the persons concerned so that they do not find themselves in a situation contrary to Article 3 (ibid., § 191). 131. The Court stressed in the above connection that the benchmark was not the level of care existing in the returning State; it was not a question of ascertaining whether the care in the receiving State would be equivalent or inferior to that provided by the healthcare system in the returning State. Nor was it possible to derive from Article 3 a right to receive specific treatment in the receiving State which was not available to the rest of the population (ibid., § 189). In cases concerning the removal of seriously ill persons, the event which triggered the inhuman and degrading treatment, and which engaged the responsibility of the returning State under Article 3, was not the lack of medical infrastructure in the receiving State. Likewise, the issue was not one of any obligation for the returning State to alleviate the disparities between its healthcare system and the level of treatment existing in the receiving State through the provision of free and unlimited healthcare to all aliens without a right to stay within its jurisdiction. The responsibility that was engaged under the Convention in cases of this type was that of the returning State, on account of an act – in this instance, expulsion – which would result in an individual being exposed to a risk of treatment prohibited by Article 3 (ibid., § 192). Lastly, the Court pointed out that whether the receiving State was a Contracting Party to the Convention was not decisive. 132. There has been no further development in the relevant case-law since the Paposhvili judgment (cited above). General considerations on the criteria laid down in the Paposhvili judgment 133. Having regard to the reasoning of the Chamber and the submissions of the parties and third parties before the Grand Chamber, the latter considers it useful with a view to its examination of the present case to confirm that the Paposhvili judgment (cited above) offered a comprehensive standard taking due account of all the considerations that are relevant for the purposes of Article 3 of the Convention. It maintained the Contracting States’ general right to control the entry, residence and expulsion of aliens, whilst recognising the absolute nature of Article 3. The Grand Chamber thus reaffirms the standard and principles as established in Paposhvili (cited above). 134. Firstly, the Court reiterates that the evidence adduced must be “capable of demonstrating that there are substantial grounds” for believing that as a “seriously ill person”, the applicant “would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy” (ibid., § 183). 135. Secondly, it is only after this threshold test has been met, and thus Article 3 is applicable, that the returning State’s obligations listed in paragraphs 187-91 of the Paposhvili judgment (see paragraph 130 above) become of relevance. 136. Thirdly, the Court emphasises the procedural nature of the Contracting States’ obligations under Article 3 of the Convention in cases involving the expulsion of seriously ill aliens. It reiterates that it does not itself examine the applications for international protection or verify how States control the entry, residence and expulsion of aliens. By virtue of Article 1 of the Convention, the primary responsibility for implementing and enforcing the guaranteed rights and freedoms is laid on the national authorities, who are thus required to examine the applicants’ fears and to assess the risks they would face if removed to the receiving country, from the standpoint of Article 3. The machinery of complaint to the Court is subsidiary to national systems safeguarding human rights (ibid., § 184). Relevance of the Paposhvili threshold test in the context of the removal of mentally ill aliens 137. The Court has consistently applied the same principles in cases concerning the expulsion of seriously ill applicants, irrespective of what particular type of medical issue – somatic or mental – underlay their health condition. In the Paposhvili judgment (cited above), before it proceeded to formulate the new standard, the Court had regard to case-law relating to applicants suffering from both physical and mental illnesses (see paragraph 127 above and the range of authorities cited in Paposhvili, cited above, § 179). In the wording of paragraph 183 of the Paposhvili judgment, the standard refers to “a seriously ill person”, without specifying the type of illness. Thus, it is not limited to any specific category of illness, let alone physical ones, but may extend to any category, including mental illnesses, provided that the situation of the ill person concerned is covered by the Paposhvili criteria taken as a whole. 138. In particular, in its relevant part, the threshold test established in paragraph 183 of the Paposhvili judgment (cited above), rather than mentioning any particular disease, broadly refers to the “irreversibility” of the “decline in [a person’s] state of health”, a wider concept that is capable of encompassing a multitude of factors, including the direct effects of an illness as well as its more remote consequences. Moreover, it would be wrong to dissociate the various fragments of the test from each other, given that, as noted in paragraph 134 above, a “decline in health” is linked to “intense suffering”. It is on the basis of all those elements taken together and viewed as a whole that the assessment of a particular case should be made. 139. In the light of the foregoing, the Court considers that the standard in question is sufficiently flexible to be applied in all situations involving the removal of a seriously ill person which would constitute treatment proscribed by Article 3 of the Convention, irrespective of the nature of the illness. Application of the relevant principles in the present case 140. The Grand Chamber observes that in its judgment the Chamber did not assess the circumstances of the present case from the standpoint of the threshold test established in paragraph 183 of the Paposhvili judgment (cited above). As noted in paragraph 135 above, it is only after that test is met that any other questions, such as the availability and accessibility of appropriate treatment, become of relevance. 141. Whilst, admittedly, schizophrenia is a serious mental illness, the Court does not consider that that condition can in itself be regarded as sufficient to bring the applicant’s complaint within the scope of Article 3 of the Convention. 142. The Court observes that the medical evidence submitted by the applicant showed, in particular, that he was aware of his disease, clearly acknowledged his need for therapy, and was cooperative. His treatment plan included medication with two antipsychotic drugs: Leponex (a medication with clozapine as the active pharmaceutical ingredient), in the form of tablets to be administered daily, and Risperdal Consta, in the form of injections to be administered fortnightly. The experts submitted that a relapse in the event of the interruption of the applicant’s medication might “have serious consequences for himself and his environment” (see paragraph 44 above). In particular, there was said to be “a risk of aggressive behaviour” and of the applicant’s becoming “very dangerous”, which would give rise to “a significantly higher risk of offences against the person of others because of the worsening of the applicant’s psychotic symptoms” (see paragraphs 36, 42 and 45 above). It was also stated that Leponex could cause immune deficiencies, and therefore the taking of blood samples for somatic reasons on a weekly or monthly basis was necessary (see paragraph 63 above). 143. While the Court finds it unnecessary to decide in the abstract whether a person suffering from a severe form of schizophrenia might be subjected to “intense suffering” within the meaning of the Paposhvili threshold test, it considers, having reviewed the evidence adduced by the parties before it and the evidence before the domestic courts, that it has not been demonstrated in the present case that the applicant’s removal to Turkey exposed him to a serious, rapid and irreversible decline in his state of health resulting in intense suffering, let alone to a significant reduction in life expectancy. According to some of the relevant medical statements, a relapse was likely to result in “aggressive behaviour” and “a significantly higher risk of offences against the person of others” as a result of the worsening of psychotic symptoms. Whilst those would have been very serious and detrimental effects, they could not be described as “resulting in intense suffering” for the applicant himself. 144. It does not appear, in the absence of convincing evidence to that effect, that any risk has ever existed of the applicant harming himself (in this connection, compare Bensaid v. the United Kingdom, no. 44599/98, §§ 16 and 37, ECHR 2001 ‑ I, and Tatar v. Switzerland, no. 65692/12, § 16, 14 April 2015, both concerning applicants who were suffering from paranoid schizophrenia, where a risk of self-harm was a factor but where Article 3 was not engaged). Whilst one of the experts did mention “serious consequences” for the applicant “himself”, those consequences, as explained further by the expert, concerned a high risk of harm to others. 145. As regards any risk to the applicant’s physical health owing to immune defects that might be caused by Leponex, this appears to have been neither real nor immediate in the applicant’s case. It is noteworthy that the applicant was prescribed Leponex in May 2013 (see paragraph 35 above) and that during the period of two years that elapsed until the final decision in the revocation proceedings on 20 May 2015 (see paragraph 67 above) he had shown no symptoms of any deterioration of his physical health on account of his treatment with that drug. In any event, the relevant evidence does not indicate that such immune deficiencies, should they occur, would be “irreversible” and would result in the “intense suffering” or “significant reduction in life expectancy” necessary to satisfy the Paposhvili test. The medical expert simply suggested that the applicant should stop taking that drug if such deficiencies emerged (see paragraph 63 above). 146. Even assuming that a certain degree of speculation is inherent in the preventive purpose of Article 3 and that it is not a matter of requiring the persons concerned to provide clear proof of their claim that they would be exposed to proscribed treatment (see Paposhvili, cited above, § 186), the Court is not convinced that in the present case, the applicant has shown substantial grounds for believing that, in the absence of appropriate treatment in Turkey or the lack of access to such treatment, he would be exposed to a risk of bearing the consequences set out in paragraph 183 of the judgment in Paposhvili and paragraphs 129 and 134 above. 147. The foregoing considerations are sufficient to enable the Court to conclude that the circumstances of the present case do not reach the threshold set by Article 3 of the Convention to bring the applicant’s complaint within its scope. As already indicated, that threshold should remain high for this type of case (ibid., § 183). Against this background, there is no call to address the question of the returning State’s obligations under this Article in the circumstances of the present case. 148. There has accordingly been no violation of Article 3 of the Convention as a result of the applicant’s removal to Turkey. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 149. The applicant further complained that the authorities’ refusal to revoke the expulsion order, and the implementation of that order entailing as a consequence a permanent re-entry ban, had breached his right to respect for his private and family life. He relied on Article 8 of the Convention, the relevant part of which reads as follows: “1. Everyone has the right to respect for his private and family life... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” The Chamber judgment 150. The Chamber observed that the complaint under Article 8 relating to the original expulsion order had been lodged out of time and had to be rejected in accordance with Article 35 §§ 1 and 4 of the Convention. It then declared admissible the complaint relating to the revocation proceedings and, having regard to its findings under Article 3, considered that there was no need to examine separately the applicant’s complaint under Article 8 of the Convention. The parties’ submissions before the Grand ChamberThe applicant The applicant The applicant 151. The applicant argued that the outcome of the revocation proceedings and his eventual expulsion had constituted a violation of his right to respect for his private and family life secured by Article 8 of the Convention. Given that he had lived in Denmark from the age of six until the age of almost thirty, he had been a “settled migrant”, and therefore “serious reasons” had been required to justify his expulsion, as established in the case of Maslov v. Austria ([GC], no. 1638/03, ECHR 2008). Moreover, his enduring mental disorder – paranoid schizophrenia – and his low intellectual capacity made him particularly vulnerable. 152. Prior to his expulsion, the applicant had had very close ties with his mother, his four siblings and his niece and nephew, all of them living in Denmark. They had frequently visited him at the Hospital of Saint John, and he had visited them either alone, or in the company of health workers from the hospital. He had had a family life with them and, in view of his diagnosis, had been particularly dependent on them and had relied on their assistance and support in his efforts to overcome his mental illness; those were additional elements of his dependence on his mother and siblings, which demonstrated his particular need for a family unit. In the latter connection, the applicant relied on the case of Nasri v. France (13 July 1995, Series A no. 320 ‑ B). In addition, he stressed that he had no family or friends in Turkey and was currently living in isolation in a village in Turkey, given his very limited ability to communicate because of his lack of command of Turkish. The applicant argued that his family in Denmark was the only family he had, and that his removal had been both disproportionate and inhuman. 153. The applicant further contended that the Grand Chamber’s task in the present case was to review the revocation proceedings, which, in his view, had not met the relevant standards of Article 8 of the Convention. With reference to the cases of I.M. v. Switzerland (no. 23887/16, 9 April 2019) and Saber and Boughassal v. Spain (nos. 76550/13 and 45938/14, 18 December 2018), the applicant argued that, similarly to those cases, in its decision of 13 January 2015 the High Court had failed to make a thorough assessment of all the relevant elements, and especially his particular dependence on his family; to carry out a proper balancing exercise, in accordance with the criteria established in the Court’s case-law; and to provide sufficient grounds for his expulsion. The High Court’s reasoning regarding the applicant’s rights protected by Article 8 of the Convention had been given in a summary and superficial manner. 154. The applicant also argued that the permanent ban on his re-entry had breached the relevant requirements of Article 8. As regards the 2018 amendments introduced in section 32(5) of the Aliens Act (see paragraph 78 above), this new provision had enabled the Danish courts to impose a ban on re-entry for a shorter duration than those fixed in section 32(4) of the Aliens Act. His legal representatives had, however, not been able to find any practice of the Danish courts on the application of that provision. In particular, a search of Danish legal commentaries and legal databases, as well as enquiries to a number of Danish public authorities involved in this field, had not led to the identification of any legal precedent. Against this background, the Government’s argument that the amended provision would not have led to a different outcome in the applicant’s case (see paragraph 166 below) seemed rather speculative. 155. The applicant further contended that the nature and seriousness of his criminal offence could not have been decisive in the assessment of the necessity of his expulsion, in accordance with the requirements of Article 8, given that he had been convicted of an attack in which several other persons had taken part, and that his individual role in the attack had not been determined in the course of the criminal proceedings against him. Also, in the revocation proceedings the Danish courts should have taken into account the permanent nature of the removal measure, as well as the fact that the applicant had committed no further offences since May 2006. 156. The applicant agreed with the Government that the new version of section 32 of the Aliens Act could not be applied retroactively, but argued that, since the amended provision had afforded the Danish courts more flexibility in dealing with expulsion issues in criminal cases, it could not be ruled out that, if applied at the time of his criminal trial, that provision could have altered the outcome of his case with the result that he would have had a chance to return to his family in Denmark after spending a period of several years in Turkey. The Government 157. The Government submitted that there had been no violation of Article 8 in the present case. With reference to the Court’s relevant case ‑ law, and, in particular, its judgment in Üner v. the Netherlands ([GC], no. 46410/99, ECHR 2006 ‑ XII), they pointed out that an absolute right not to be expelled – even for a long-term immigrant who had been born in the host State or who had arrived there during early childhood – could not be derived from Article 8 of the Convention (ibid., §§ 55-57). 158. Whilst conceding that the contested measure had interfered with the applicant’s right to respect for his private life, within the meaning of Article 8 § 1 of the Convention, the Government pointed out that at the time when the applicant’s expulsion order had been upheld by the Supreme Court in 2009 (see paragraph 30 above) and had thus become final, he had been a 24 ‑ year-old unmarried adult who had not founded a family. 159. They further argued that the interference in question had been justified under Article 8 § 2 of the Convention. The expulsion order had been “in accordance with the law”, had pursued the legitimate aim of “the prevention of disorder or crime” and had been “necessary in a democratic society”. 160. As regards the last-mentioned aspect, the Government argued that in the criminal proceedings against the applicant, when deciding on the issue of expulsion, the domestic courts at two levels of jurisdiction had expressly considered Article 8 and the Court’s case-law, including the criteria established in Üner and Maslov ( both cited above), in their assessment of the proportionality of the interference with the applicant’s relevant rights. The courts had taken into account the available information on the applicant’s personal circumstances. 161. The Government adduced detailed arguments regarding the domestic courts’ findings in the context of the criminal proceedings against the applicant, and insisted that, in their assessment of the issue of expulsion, the High Court and the Supreme Court had carried out a thorough assessment of the applicant’s personal circumstances in accordance with the general principles set out by the Court and had carefully struck a fair balance between the opposing interests. In the light of the principle of subsidiarity, the Court ought to be reluctant to disregard the assessment made by the Danish courts. In that connection, referring to the relevant considerations in Ndidi v. the United Kingdom (no. 41215/14, §§ 75-76, 14 September 2017), they argued that the Court should decline to substitute its own conclusions for those of the domestic courts. 162. The Government also pointed out that under the Danish courts’ case-law, a visitor’s visa could be issued in very extraordinary cases to aliens who had been expelled and permanently banned from re-entry. For the first two years following expulsion, a visa could be issued only where there was an urgent need for a deportee’s presence in Denmark, for instance if the deportee was to give evidence as a witness in legal proceedings and a court deemed the deportee’s presence to be of material importance to the completion of the proceedings; or in the event of acute serious illness of a spouse or a child living in Denmark where regard for the person living in Denmark made such a visit appropriate. After the first two years following deportation, a visa could be issued only where exceptional reasons made it appropriate, for instance, serious illness or death of a family member living in Denmark. 163. At the hearing before the Grand Chamber, the Government stated that the applicant had never lost his legal capacity. 164. As regards the indefinite duration of the ban on re-entry imposed on the applicant, the Government pointed out that at the time when the applicant’s expulsion had been ordered, the domestic courts had had no discretion to impose a ban on re-entry of a limited duration. The relevant provision – section 32 of the Aliens Act – had only recently been amended (see paragraph 78 above) in order to make it more nuanced and flexible based on a differentiation of the criteria for the imposition of a ban on re ‑ entry. 165. The reasoning behind the amendment had been the political will of the Danish legislature to ensure that the domestic courts ordered the expulsion of criminal aliens more often than had previously been the case while taking account of the Court’s Article 8 case-law. Under the amended legislation, the domestic courts could impose an entry ban for a shorter period if they found that a permanent ban would conflict with Denmark’s international obligations. Accordingly, rather than refraining from expelling a criminal alien, the courts could choose to impose a shorter ban on re-entry. 166. However, the Government pointed out that the amended provision had no retroactive effect, and thus was inapplicable in the applicant’s case. Nor did it allow for a reconsideration of a permanent ban that had already been imposed. Even if that new provision had been applicable, a permanent ban would still have been imposed on the applicant regardless, because of the nature and seriousness of his crime. Third-party intervener 167. The Norwegian Government, who were the only intervening Government to make comments under Article 8, invited the Grand Chamber to develop the principles regarding the expulsion of “settled migrants” established under Article 8 of the Convention in Üner and Maslov (both cited above). Since those cases had been examined from the standpoint of the “family life” aspect of Article 8, the principles established therein were not easily applicable in situations where only the “private life” of the person concerned was involved. The subsequent case-law had relied on factors that presupposed the severance of family ties upon removal, whilst factors more typically associated with “private life”, including the question of adequate medical treatment in the receiving State, had not been included. 168. More specifically, the Norwegian Government invited the Grand Chamber to elaborate on the Üner and Maslov criteria, having regard to the approach taken in the case of Levakovic v. Denmark (no. 7841/14, 23 October 2018). In their view, in paragraph 44 of the latter judgment the Court had shown sensitivity towards the inadequacy of several of the Üner criteria in cases where only the “private life” aspects of Article 8 came into play. As the Court had stated in paragraph 45 of that judgment, “[a]scertaining whether ‘very weighty reasons’ justif[ied] the expulsion of a settled migrant ... must inevitably require a delicate and holistic assessment ... that must be carried out by the national authorities under the final supervision of the Court”, and the Court should require “strong reasons to substitute its view for that of the domestic courts” where “a balancing exercise ha[d] been undertaken by the national authorities in conformity with the criteria laid down in the Court’s case-law”. The Court’s assessmentThe scope of the case The scope of the case The scope of the case 169. According to the Court’s settled case-law, the “case” referred to the Grand Chamber necessarily embraces all aspects of the application previously examined by the Chamber in its judgment. The “case” referred to the Grand Chamber is the application as it has been declared admissible, as well as the complaints that have not been declared inadmissible (see S.M. v. Croatia [GC], no. 60561/14, § 216, 25 June 2020, and the authorities cited therein). This means that the Grand Chamber must examine the case in its entirety in so far as it has been declared admissible; it cannot, however, examine those parts of the application which have been declared inadmissible by the Chamber (see, for instance, Kurić and Others v. Slovenia [GC], no. 26828/06, §§ 234-35, ECHR 2012 (extracts), and Ramos Nunes de Carvalho e Sá v. Portugal [GC], nos. 55391/13 and 2 others, § 87, 6 November 2018). The Court sees no reason to depart from this principle in the present case. 170. The Court further observes that the Grand Chamber has previously decided in some cases, in view of the importance of the issues at stake, to consider certain complaints which the Chamber had not deemed necessary to examine, even where the outcome was detrimental to the party that had requested referral to it (see, for example, Öneryıldız v. Turkey [GC], no. 48939/99, §§ 141 and 149, ECHR 2004 ‑ XII; Kurić and Others, cited above, § 382; and Ramos Nunes de Carvalho e Sá, cited above, § 88). 171. In the present case, the Chamber declared inadmissible the applicant’s complaint under Article 8 relating to the original expulsion order as having been lodged out of time. It declared admissible the complaint relating to the revocation proceedings but decided that it was not necessary to examine that complaint under Article 8 (see paragraph 150 above). In the light of the above-mentioned principles, the Court will examine the complaint under Article 8 only in so far as it relates to the authorities’ refusal to revoke the expulsion order, and the implementation of that order, entailing as a consequence a permanent re-entry ban. Its task therefore is not to assess, from the standpoint of Article 8 of the Convention, the original expulsion order and the criminal proceedings in the context of which it was issued, but rather to review whether the revocation proceedings complied with the relevant criteria established by the Court’s case-law (compare T.C.E. v. Germany, no. 58681/12, § 54, 1 March 2018). Whether there was interference with the applicant’s right to respect for his private and family life 172. From the outset, and notwithstanding the conclusion above under Article 3 of the Convention, it should be recalled that in the case of Bensaid (cited above) the Court held: “46. Not every act or measure which adversely affects moral or physical integrity will interfere with the right to respect to private life guaranteed by Article 8. However, the Court’s case-law does not exclude that treatment which does not reach the severity of Article 3 treatment may nonetheless breach Article 8 in its private-life aspect where there are sufficiently adverse effects on physical and moral integrity (see Costello-Roberts v. the United Kingdom, judgment of 25 March 1993, Series A no. 247-C, pp. 60-61, § 36). 47. ... Mental health must also be regarded as a crucial part of private life associated with the aspect of moral integrity. Article 8 protects a right to identity and personal development, and the right to establish and develop relationships with other human beings and the outside world (see, for example, Burghartz, cited above, opinion of the Commission, p. 37, § 47, and Friedl v. Austria, judgment of 31 January 1995, Series A no. 305-B, p. 20, § 45). The preservation of mental stability is in that context an indispensable precondition to effective enjoyment of the right to respect for private life.” 173. Furthermore, as regards the position of settled migrants the Court held as follows in the case of Maslov (cited above): “61. The Court considers that the imposition and enforcement of the exclusion order against the applicant constituted an interference with his right to respect for his ‘private and family life’. It reiterates that the question whether the applicant had a family life within the meaning of Article 8 must be determined in the light of the position when the exclusion order became final (see El Boujaïdi v. France, 26 September 1997, § 33, Reports of Judgments and Decisions 1997-VI; Ezzouhdi v. France, no. 47160/99, § 25, 13 February 2001; Yildiz v. Austria, no. 37295/97, § 34, 31 October 2002; Mokrani v. France, no. 52206/99, § 34, 15 July 2003; and Kaya, cited above, § 57). 62. The applicant was a minor when the exclusion order was imposed. He had reached the age of majority, namely 18 years, when the exclusion order became final in November 2002 following the Constitutional Court’s decision, but he was still living with his parents. In any case, the Court has accepted in a number of cases concerning young adults who had not yet founded a family of their own that their relationship with their parents and other close family members also constituted ‘family life’ (see Bouchelkia v. France, 29 January 1997, § 41, Reports 1997-I; El Boujaïdi, cited above, § 33; and Ezzouhdi, cited above, § 26). 63. Furthermore, the Court observes that not all settled migrants, no matter how long they have been residing in the country from which they are to be expelled, necessarily enjoy ‘family life’ there within the meaning of Article 8. However, as Article 8 also protects the right to establish and develop relationships with other human beings and the outside world and can sometimes embrace aspects of an individual’s social identity, it must be accepted that the totality of social ties between settled migrants and the community in which they are living constitutes part of the concept of ‘private life’ within the meaning of Article 8. Regardless of the existence or otherwise of a ‘family life’, the expulsion of a settled migrant therefore constitutes an interference with his or her right to respect for private life. It will depend on the circumstances of the particular case whether it is appropriate for the Court to focus on the ‘family life’ rather than the ‘private life’ aspect (see Üner, cited above, § 59).” 174. Whilst in some cases the Court has held that there will be no family life between parents and adult children or between adult siblings unless they can demonstrate additional elements of dependence (see, for instance, A.W. Khan v. the United Kingdom, no. 47486/06, § 32, 12 January 2010, and Narjis v. Italy, no. 57433/15, § 37, 14 February 2019), in a number of other cases it has not insisted on such further elements of dependence with respect to young adults who were still living with their parents and had not yet started a family of their own (see Bouchelkia v. France, 29 January 1997, § 41, Reports 1997 ‑ I; Ezzouhdi v. France, no. 47160/99, § 26, 13 February 2001; Maslov, cited above, §§ 62 and 64; and Yesthla v. the Netherlands (dec.), no. 37115/11, § 32, 15 January 2019). As already stated above, whether it is appropriate for the Court to focus on the “family life” rather than the “private life” aspect will depend on the circumstances of the particular case. 175. In the present case, the applicant arrived in Denmark at the age of six; he was educated and spent his formative years there; he was issued with a residence permit and remained lawfully resident in the country for fourteen years and eight months (see paragraphs 27 and 30 above). The Court thus accepts that he was a “settled migrant” and therefore Article 8 under its “private life” aspect is engaged. 176. The applicant also alleged that, prior to his expulsion, he had had a close relationship with his mother, his four siblings and their children, who all lived in Denmark. In particular, while he had remained in forensic psychiatric care, they had visited him and he had visited them. The applicant also stressed his particular vulnerability on account of his mental condition, which, in his view, was an additional element of his dependence on them, and argued that he had had a “family life” with them, which had been interrupted by his expulsion (see paragraph 152 above). 177. The Court observes that, at the time when the applicant’s expulsion order became final, he was 24 years old (see paragraph 30 above). Even if the Court may be prepared to accept that a person of this age can still be considered a “young adult” (see paragraph 174 above), the facts of the case reveal that from his childhood the applicant was removed from home and placed in foster care, and that, at various times over the years, he lived in socio-educational institutions (see paragraph 18 above). It is thus clear that from his early years the applicant was not living full time with his family (compare Pormes v. the Netherlands, no. 25402/14, § 48, 28 July 2020, and compare and contrast Nasri, cited above, § 44). 178. The Court is further not convinced that the applicant’s mental illness, albeit serious, can in itself be regarded as a sufficient evidence of his dependence on his family members to bring the relationship between them within the sphere of “family life” under Article 8 of the Convention. In particular, it has not been demonstrated that the applicant’s health condition incapacitated him to the extent that he was compelled to rely on their care and support in his daily life (compare and contrast Emonet and Others v. Switzerland, no. 39051/03, § 35, 13 December 2007; Belli and Arquier-Martinez v. Switzerland, no. 65550/13, § 65, 11 December 2018; and I.M. v. Switzerland, cited above, § 62). Moreover, it has not been argued that the applicant was dependent on any of his relatives financially (compare and contrast I.M. v. Switzerland, cited above, § 62); it is noteworthy in this connection that the applicant has been and remains in receipt of a disability pension from the Danish authorities (see paragraphs 27, 30 and 72 above). Moreover, there is no indication that there were any further elements of dependence between the applicant and his family members. In these circumstances, whilst the Court sees no reason to doubt that the applicant’s relationship with his mother and siblings involved normal ties of affection, it considers that it would be appropriate to focus its review on the “private life” rather than the “family life” aspect under Article 8. 179. The Court further finds that the refusal to revoke the applicant’s expulsion order in the revocation proceedings and his expulsion to Turkey constituted an interference with his right to respect for his private life (see Hamesevic v. Denmark (dec.), no. 25748/15, §§ 31 and 46, 16 May 2017). Such interference will be in breach of Article 8 of the Convention unless it can be justified under Article 8 § 2 as being “in accordance with the law”, as pursuing one or more of the legitimate aims listed and as being “necessary in a democratic society” in order to achieve the aim or aims concerned (see, among many other authorities, Maslov, cited above, § 65). Lawfulness and legitimate aim 180. It was not disputed that the impugned interference was “in accordance with the law”, namely section 50a of the Aliens Act, and pursued the legitimate aim of preventing disorder and crime. However, the parties disagreed as to whether the interference was “necessary in a democratic society”. “Necessary in a democratic society” (a) General principles 181. The Court first reiterates the following fundamental principles established in its case-law as summarised in Üner (cited above, § 54) and quoted in Maslov (cited above, § 68): “54. The Court reaffirms at the outset that a State is entitled, as a matter of international law and subject to its treaty obligations, to control the entry of aliens into its territory and their residence there (see, among many other authorities, Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 67, Series A no. 94, and Boujlifa v. France, 21 October 1997, § 42, Reports of Judgments and Decisions 1997-VI). The Convention does not guarantee the right of an alien to enter or to reside in a particular country and, in pursuance of their task of maintaining public order, Contracting States have the power to expel an alien convicted of criminal offences. However, their decisions in this field must, in so far as they may interfere with a right protected under paragraph 1 of Article 8, be in accordance with the law and necessary in a democratic society, that is to say justified by a pressing social need and, in particular, proportionate to the legitimate aim pursued (see Dalia v. France, 19 February 1998, § 52, Reports 1998-I; Mehemi v. France, 26 September 1997, § 34, Reports 1997-VI; Boultif, cited above, § 46; and Slivenko v. Latvia [GC], no. 48321/99, § 113, ECHR 2003-X). 55. The Court considers that these principles apply regardless of whether an alien entered the host country as an adult or at a very young age, or was perhaps even born there. In this context the Court refers to Recommendation 1504 (2001) on the non ‑ expulsion of long-term immigrants, in which the Parliamentary Assembly of the Council of Europe recommended that the Committee of Ministers invite member States, inter alia, to guarantee that long-term migrants who were born or raised in the host country cannot be expelled under any circumstances (see paragraph 37 above). While a number of Contracting States have enacted legislation or adopted policy rules to the effect that long-term immigrants who were born in those States or who arrived there during early childhood cannot be expelled on the basis of their criminal record (see paragraph 39 above), such an absolute right not to be expelled cannot, however, be derived from Article 8 of the Convention, couched, as paragraph 2 of that provision is, in terms which clearly allow for exceptions to be made to the general rights guaranteed in the first paragraph.” 182. In Maslov (cited above, § 71) the Court further set out the following criteria as relevant to the expulsion of young adults, who have not yet founded a family of their own: – the nature and seriousness of the offence committed by the applicant; – the length of the applicant’s stay in the country from which he or she is to be expelled; – the time that has elapsed since the offence was committed and the applicant’s conduct during that period; and – the solidity of social, cultural and family ties with the host country and with the country of destination. In addition, the Court will have regard to the duration of the exclusion order (ibid., § 98; see also Külekci v. Austria, no. 30441/09, § 39, 1 June 2017, and Azerkane v. the Netherlands, no. 3138/16, § 70, 2 June 2020). Indeed, the Court notes in this context that the duration of a ban on re-entry, in particular whether such a ban is of limited or unlimited duration, is an element to which it has attached importance in its case-law (see, for example, Yilmaz v. Germany, no. 52853/99, §§ 47-49, 17 April 2003; Radovanovic v. Austria, no. 42703/98, § 37, 22 April 2004; Keles v. Germany, no. 32231/02, §§ 65 ‑ 66, 27 October 2005; Külekci v. Austria, cited above, § 51; Veljkovic-Jukic v. Switzerland, no. 59534/14, § 57, 21 July 2020; and Khan v. Denmark, no. 26957/19, § 79, 12 January 2021). 183. All of the relevant criteria established in the Court’s case-law should be taken into account by the domestic courts, from the standpoint of either “family life” or “private life” as appropriate, in all cases concerning settled migrants who are to be expelled and/or excluded from the territory following a criminal conviction (see Üner, cited above, § 60, and Saber and Boughassal, cited above, § 47). 184. Where appropriate, other elements relevant to the case, such as, for instance, its medical aspects, should also be taken into account (see Shala v. Switzerland, no. 52873/09, § 46, 15 November 2012; I.M. v. Switzerland, cited above, § 70; and K.A. v. Switzerland, no. 62130/15, § 41, 7 July 2020). 185. The weight to be attached to the respective criteria will inevitably vary according to the specific circumstances of each case; where the aim is the “prevention of disorder or crime”, they are designed to help domestic courts evaluate the extent to which the applicant can be expected to cause disorder or to engage in criminal activities (see Maslov, cited above, § 70). 186. Moreover, for a settled migrant who has lawfully spent all or the major part of his or her childhood and youth in the host country, very serious reasons are required to justify expulsion (ibid., § 75). 187. National authorities enjoy a certain margin of appreciation when assessing whether an interference with a right protected by Article 8 was necessary in a democratic society and proportionate to the legitimate aim pursued. However, the Court has consistently held that its task consists in ascertaining whether the impugned measures struck a fair balance between the relevant interests, namely the individual’s rights protected by the Convention on the one hand and the community’s interests on the other. Thus, the State’s margin of appreciation goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether an expulsion measure is reconcilable with Article 8 (ibid., § 76, and the cases cited therein). 188. Domestic courts must put forward specific reasons in the light of the circumstances of the case, not least to enable the Court to carry out the European supervision entrusted to it. Where the reasoning of domestic decisions is insufficient, without any real balancing of the interests in issue, this would be contrary to the requirements of Article 8 of the Convention. In such a scenario, the Court will find that the domestic courts failed to demonstrate convincingly that the respective interference with a right under the Convention was proportionate to the aim pursued and thus met a “pressing social need” (see El Ghatet v. Switzerland, no. 56971/10, § 47, 8 November 2016). 189. At the same time, where independent and impartial domestic courts have carefully examined the facts, applying the relevant human rights standards consistently with the Convention and its case-law, and adequately balanced the applicant’s personal interests against the more general public interest in the case, it is not for the Court to substitute its own assessment of the merits (including, in particular, its own assessment of the factual details of proportionality) for that of the competent national authorities. The only exception to this is where there are shown to be strong reasons for doing so (see Ndidi, cited above, § 76; Levakovic, cited above, § 45; Saber and Boughassal, cited above, § 42; and Narjis, cited above, § 43). (b) Application of those principles in the present case 190. In the present case, it appears that a balancing of the various interests at stake was performed in the light of the relevant Article 8 criteria by the national courts in the context of the criminal proceedings against the applicant, when his expulsion was first ordered. The Court further observes that a significant period elapsed between 10 August 2009 (the date on which the expulsion order became final) and 20 May 2015 (the date of the final decision in the revocation proceedings). Thus, it fell to the national authorities to consider the proportionality of the applicant’s expulsion in the revocation proceedings, taking into account any relevant change in his circumstances, notably those pertaining to his conduct and health, that might have taken place during that period (see Maslov, cited above, §§ 90 ‑ 93). The Court reiterates at this juncture that the crux of the present case is the compliance of the revocation proceedings with the relevant criteria under Article 8 of the Convention established by the Court’s case ‑ law (see paragraph 171 above). 191. The Court observes at the outset that, on account of his mental condition, the applicant was more vulnerable than an average “settled migrant” facing expulsion. The state of his health was required to be taken into account as one of the balancing factors (see paragraph 184 above). In this connection, the Court observes that, by virtue of section 50a of the Aliens Act (see paragraph 76 above), the national courts in the revocation proceedings proceeded to determine whether the applicant’s state of health made it conclusively inappropriate to enforce the expulsion order. At two levels of jurisdiction, the domestic courts had regard to statements from various experts and relevant information from the country concerned. In particular, they examined information from the social security institution in Turkey, a physician at a rehabilitation clinic in Konya under the auspices of the public hospital, and a public hospital in Konya, which confirmed that it was possible for a patient to receive intensive care in a psychiatric hospital matching the applicant’s needs. The courts were thus satisfied that the medication in issue was available in Turkey, including in the area where the applicant would most likely settle down. 192. The Court sees no reason to question that very thorough consideration was given to the medical aspects of the applicant’s case at the domestic level. Indeed, the High Court carried out a careful examination of the applicant’s state of health and the impact thereon, including the availability and accessibility of the necessary medical treatment, should the removal be implemented. It took into account the cost of medication and care, the distance to be travelled in order to have access to care and the availability of medical assistance in a language spoken by the applicant. However, medical aspects are only one among several factors to be taken into account where appropriate (see paragraph 184 above), as is the case here, in addition to the Maslov criteria outlined in paragraph 182 above. 193. As regards the nature and seriousness of the criminal offence, the Court observes that, while still a minor, the applicant committed a robbery of which he was convicted in 2001 (see paragraph 12 above). In 2006, acting with a group of other people, he participated in an attack on a man which resulted in the latter’s death (see paragraph 13 above). The Court notes that those were crimes of a violent nature, which cannot be regarded as mere acts of juvenile delinquency (compare and contrast Maslov, cited above, § 81). At the same time, the Court does not overlook the fact that, in the later criminal proceedings in which the applicant was found guilty of aggravated assault, the medical reports revealed that at the time when he had committed that offence, it was very likely that he had been suffering from a mental disorder, namely paranoid schizophrenia, threatening and physically aggressive behaviour being symptoms of that disorder in his case (see paragraph 25 above). In accordance with the Maslov criteria (see paragraph 182 above), it needs to be considered whether “very serious reasons” justified the applicant’s expulsion and hence, for the purposes of the present case, the refusal to revoke the order in 2015 at the time its execution became feasible. A relevant issue for the purposes of the Article 8 analysis is whether the fact that the applicant, on account of his mental illness, was, in the national courts’ view, exempt from punishment under Article 16 § 2 and Article 68 of the Danish Penal Code when convicted in 2009 had the impact of limiting the extent to which the respondent State could legitimately rely on the applicant’s criminal acts as the basis for his expulsion and permanent ban on re-entry. 194. In its recent case-law dealing with the expulsion of settled migrants under Article 8 of the Convention (see, for example, paragraph 189 above), the Court has held that serious criminal offences can, assuming that the other Maslov criteria are adequately taken into account by the national courts in an overall balancing of interests, constitute a “very serious reason” such as to justify expulsion. However, the first Maslov criterion, with its reference to the “nature and seriousness” of the offence perpetrated by the applicant, presupposes that the competent criminal court has determined whether the settled migrant suffering from a mental illness has demonstrated by his or her actions the required level of criminal culpability. The fact that his or her criminal culpability was officially recognised at the relevant time as being excluded on account of mental illness at the point in time when the criminal act was perpetrated may have the effect of limiting the weight that can be attached to the first Maslov criterion in the overall balancing of interests required under Article 8 § 2 of the Convention. 195. The Court makes clear that in the present case it is not called upon to make general findings in this regard, but only to determine whether the manner in which the national courts assessed the “nature and seriousness” of the applicant’s offence in the 2015 proceedings adequately took into account the fact that he was, according to the national authorities, suffering from a serious mental illness, namely paranoid schizophrenia, at the moment when he perpetrated the act in question. 196. In this connection, the Court observes that, in its decision of 13 January 2015 regarding the lifting of the expulsion order, the High Court only briefly referred to the serious nature and gravity of his criminal offence (the first Maslov criterion, see paragraphs 66 and 182 above). No account was taken of the fact that the applicant was, due to his mental illness, ultimately exempt from any punishment but instead sentenced to committal to forensic psychiatric care (see paragraphs 22, 26 and 30 above). The High Court also made only a limited attempt to consider whether there had been a change in the applicant’s personal circumstances with a view to assessing the requirements of public order in the light of the information regarding his conduct during the intervening 7-year period (see paragraphs 34-36, 38-40, 43, 51, 54 and 62 above). Against this background, and given the immediate and long-term consequences for the applicant of the expulsion order being executed (see paragraph 200 below in relation to the permanent nature of the ban on re-entry), the Court considers that the national authorities did not give a sufficiently thorough and careful consideration to the Article 8 rights of the applicant, a settled migrant who had resided in Denmark since the age of six, and did not carry out an appropriate balancing exercise with a view to establishing whether those applicant’s rights outweighed the public interest in his expulsion for the purpose of preventing disorder and crime (compare Ndidi, cited above, §§ 76 and 81). 197. In that connection, as follows from the third of the Maslov criteria (see paragraph 182 above), the applicant’s conduct during the period that elapsed between the offence of which he had been found guilty and the final decision in the revocation proceedings is particularly important. Thus, the relevant evidence demonstrates that although initially the applicant’s aggressive behavioural patterns had persisted, he had made progress during those years (see paragraphs 34-36, 38-40, 43, 51, 54 and 62 above). However, the High Court did not consider these changes in the applicant’s personal circumstances with a view to assessing the risk of his reoffending against the background of his mental state at the time of the commission of the offence, which had exempted him from punishment, and the apparent beneficial effects of his treatment, which had led to his being discharged from forensic psychiatric care. 198. A further issue to be considered is the solidity of the applicant’s social, cultural and family ties with the host country and the country of destination (the fourth Maslov criterion). Whilst the applicant’s ties with Turkey seem to have been limited, it cannot be said that he was completely unfamiliar with that country (see paragraphs 30, 59 and 65 above). However, it appears that the High Court gave little consideration to the length of the applicant’s stay in and his ties to his host country Denmark (the second and fourth Maslov criteria respectively; see paragraph 182 above), stressing as it did the fact that he had not founded his own family and had no children in Denmark (see paragraph 66 above). As to the latter aspect, the Court reiterates its finding in paragraph 178 above that, even if he had no “family life”, the applicant could still claim protection of his right to respect for his “private life” within the meaning of Article 8 (see Maslov, cited above, § 93). In this regard, the Court attaches particular weight to the fact, also noted by the domestic courts in the criminal proceedings and by the City Court in the revocation proceedings, that the applicant was a settled migrant who had been living in Denmark since the age of six (see paragraph 59 above). Although the applicant’s child and young adulthood were clearly difficult, suggesting integration difficulties, he had received most of his education in Denmark and his close family members (mother and siblings) all live there. He had also been attached to the Danish labour market for about five years (see paragraphs 27 and 30 above). 199. Lastly, in order to assess the proportionality of the impugned measure, the duration of the entry ban also needs to be taken into account (see paragraph 182 above). The Court has previously found such a ban to be disproportionate on account of its unlimited duration, whilst in other cases, it has considered the limited duration of the exclusion measure to be a factor weighing in favour of its proportionality (see the authorities cited in paragraph 182 above). The Court has also accepted an expulsion measure as proportionate in a situation where, in spite of the indefinite duration of that measure, possibilities remained for the applicants to enter the returning State (see, for instance, Vasquez v. Switzerland, no. 1785/08, § 50, 26 November 2013, where the applicant could apply for authorisation to enter Switzerland as a tourist), and, even more so, where it was open to the applicants to request the authorities to reconsider the duration of the entry ban (ibid.; see also Kaya v. Germany, no. 31753/02, §§ 68-69, 28 June 2007). 200. In the present case, the Danish courts, in the revocation proceedings, had no discretion under the domestic law to review and to limit the duration of the ban imposed on the applicant; nor was it open to him to have the exclusion order reconsidered in any other procedure. As a result of the refusal to lift that measure in the revocation proceedings, he was subjected to a permanent re-entry ban. The Court notes the very intrusive nature of that measure for the applicant. In the light of the Government’s submissions regarding the very limited basis on which a visitor’s visa may be issued to aliens who have been expelled and permanently banned from re-entry (see paragraph 162 above), it is clear that the possibility of the applicant re-entering Denmark, even for a short period, remains purely theoretical. As a result, he has been left without any realistic prospect of entering, let alone returning to, Denmark. 201. In the light of the above, it appears that in the revocation proceedings, despite the significant period of time during which the applicant underwent medical treatment for his mental disorder, the High Court, apart from briefly referring to his lack of family ties in Denmark and to the serious nature and gravity of his criminal offence, did not consider the changes in the applicant’s personal circumstances with a view to assessing the risk of his reoffending against the background of his mental state at the time of the commission of the offence and the apparent beneficial effects of his treatment. Nor did it have due regard to the strength of the applicant’s ties to Denmark as compared to those to Turkey. The Court further notes that under the domestic law, the administrative and judicial authorities had no possibility of making an individual assessment of the duration of the applicant’s exclusion from Danish territory, which was both irreducible and permanent. Therefore, and notwithstanding the respondent State’s margin of appreciation, the Court considers that, in the particular circumstances of the present case, the domestic authorities failed to duly take into account and to properly balance the interests at stake (see paragraphs 182 and 183 above). 202. Accordingly, there has been a violation of Article 8 of the Convention. APPLICATION OF ARTICLE 41 OF THE CONVENTION 203. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” Damage 204. Before the Chamber, the applicant claimed 40,000 euros (EUR) as compensation for non-pecuniary damage relating to the alleged violation of Articles 3 and 8 of the Convention. The Government contested that claim as excessive. 205. The Chamber decided that a finding of a violation of Article 3 constituted in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant. 206. In the proceedings before the Grand Chamber, the applicant claimed EUR 30,000 in respect of non-pecuniary damage. He argued, in particular, that he had suffered distress, frustration and feelings of injustice resulting from the legal proceedings in Denmark and his subsequent removal to Turkey, which had interrupted his medical treatment as well as his private and family life in Denmark. In his view, his suffering could not be compensated for by a mere finding of a violation. 207. The Government submitted that, in the absence of a violation of the applicant’s rights secured by Articles 3 or 8, there was no call to make any award under Article 41 of the Convention. 208. The Court considers that, having regard to the circumstances of the case, the conclusion it has reached under Article 8 of the Convention constitutes sufficient just satisfaction in respect of any non-pecuniary damage that may have been sustained by the applicant. It therefore makes no award under this head (see Mehemi v. France, 26 September 1997, § 41, Reports 1997 ‑ VI; Yildiz v. Austria, no. 37295/97, § 51, 31 October 2002; and Radovanovic v. Austria (just satisfaction), no. 42703/98, § 11, 16 December 2004). Costs and expenses 209. Before the Chamber, the applicant claimed costs and expenses incurred in the proceedings before the Court in the amount of 103,560 Danish kroner (DKK – approximately EUR 14,000), corresponding to legal fees for a total of eighty-six hours of work performed by his representatives and their legal team. The Government disputed that amount as being excessive and pointed out that the applicant had applied for and had been provisionally granted legal aid in the amount of DKK 40,000 (approximately EUR 5,400) under the Danish Legal Aid Act ( Lov 1999 ‑ 12 ‑ 20 nr. 940 om retshjælp til indgivelse og førelse af klagesager for internationale klageorganer i henhold til menneskerettigheds-konventioner ). 210. Bearing in mind the amount of legal aid that had been granted to the applicant at the domestic level, the Chamber considered it reasonable to award him EUR 2,000, covering costs for the proceedings before the Court. 211. In the proceedings before the Grand Chamber, in his observations of 28 May 2020 the applicant sought reimbursement of DKK 322,700 (approximately EUR 45,000) for legal costs and expenses incurred in the proceedings before the Chamber and Grand Chamber. He submitted a detailed invoice, which indicated the estimate of the total number of hours spent by each of two legal representatives and their legal team members on working on the case, as well as hourly rates of their fees. He also pointed out that, as of that date, he had only received DKK 20,230.63 (approximately EUR 2,700) under the Danish Legal Aid Act. In an additional claim submitted on 24 June 2020, after the hearing before the Grand Chamber, the applicant specified that, in view of the complexity of the case and, in particular, the significant number of third-party interveners who had submitted observations, the actual time spent by the representatives and their team had exceeded the above-mentioned estimate and ranged from 104 hours for Mr Trier to thirty-two hours for Mr Boelskifte and from eight to fifty-four hours for various members of their legal team. He claimed the reimbursement of an amount totalling DKK 372,420 (approximately EUR 50,000). 212. The Government argued that the number of hours spent on the case as claimed by the applicant’s representatives had exceeded the normal and necessary time spent by lawyers in similar cases, with the result that the amount claimed was excessive. They also pointed out that under the Danish Legal Aid Act, the applicant had already been granted legal aid in the amount of DKK 20,230.63 (approximately EUR 2,700) by a decision of 8 April 2020, and in the amount of DKK 18,597.50 (approximately EUR 2,500) by a decision of 23 June 2020. 213. The Court notes that the applicant has provisionally been granted DKK 38,828.13 under the Danish Legal Aid Act. However, it is uncertain whether the applicant will subsequently be granted additional legal aid by the Ministry of Justice and how the dispute between the parties about the applicant’s outstanding claim for legal aid will be decided. Therefore, the Court finds it necessary to assess and decide the applicant’s claim for costs and expenses. 214. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum (see, for instance, Osman v. Denmark, no. 38058/09, § 88, 14 June 2011). In the present case, regard being had to the documents in its possession and the above criteria, the Court is satisfied that the applicant’s claim was substantiated. It further notes that this case has been relatively complex and has required a certain amount of work. On the other hand, the Court doubts whether, in the proceedings before the Grand Chamber, the case required the amount of work claimed by the applicant, given that a significant part of it had been carried out in the proceedings before the Chamber. 215. In these circumstances, having regard to the details of the claims submitted by the applicant, the Court considers it reasonable to award the reduced amount of EUR 20,000, together with any tax that may be chargeable to the applicant. Default interest 216. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been no violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention. It considered in particular that it had not been demonstrated that the applicant’s expulsion to Turkey had exposed him to a “serious, rapid and irreversible decline in his state of health resulting in intense suffering”, let alone to a “significant reduction in life expectancy”. Indeed, the risk posed by the reduction in treatment seemed to apply mainly to others rather than to the applicant himself. The Court held, however, that there had been a violation of Article 8 (right to respect for private life) of the Convention, finding that, overall, the domestic authorities had failed to take account of the individual circumstances of the applicant and to balance the issues at stake, and that the effective permanent re-entry ban had been disproportionate. In particular, whilst the applicant’s criminal offence – violent in nature – had undoubtedly been a serious one, no account had been taken of the fact that at the time he had committed the crime he had been, very likely, suffering from a mental disorder, with physically aggressive behaviour one of its symptoms, and that, owing to that mental illness, he had been ultimately exempt from any punishment but instead had been committed to psychiatric care. In the Court’s view, these facts had limited the extent to which the respondent State could legitimately rely on the seriousness of the criminal offence to justify his expulsion. |
642 | Journalists and publishing companies | II. RELEVANT DOMESTIC LAW AND PRACTICE 22. The relevant provisions of the Swiss Criminal Code are worded as follows. Article 179 bis – Intercepting and recording the conversations of others “A person who, without the consent of all the participants, has intercepted by means of a listening device, or recorded on a recording device, a private conversation between other persons; or a person who has used or made known to a third party a fact when he knew or should have assumed that his own knowledge of this fact had been obtained by means of an offence under the first paragraph; or a person who has kept or made available to a third party a recording which he knew or should have assumed had been made by means of an offence under the first paragraph shall be liable, subject to a complaint being lodged, to a custodial sentence not exceeding three years or to a fine.” Article 179 ter – Unauthorised recording of conversations “A person who, without the consent of the other participants, has recorded on a recording device a private conversation in which he took part; or a person who has kept a recording which he knew or should have assumed had been made as the result of an offence under paragraph 1 above, or who has used such a recording for his own benefit or has made it available to a third party shall be liable, subject to a complaint being lodged, to a custodial sentence not exceeding one year or a fine.” Article 179 quater – Breach of confidentiality or privacy by means of a camera “A person who, without the consent of the person concerned, has observed with a camera or recorded with a camera device any matter pertaining to that person ’ s confidential sphere or, where such a matter would not otherwise have been in public view, any matter pertaining to that person ’ s private sphere; or a person who has used or made known to a third party a fact when he knew or should have assumed that his own knowledge of this fact had been obtained by means of an offence under the first paragraph; or a person who has kept or made available to a third party a recording which he knew or should have assumed had been obtained by means of an offence under the first paragraph shall be liable, subject to a complaint being lodged, to a custodial sentence not exceeding three years or a fine.” 23. The relevant passages of Resolution 1165 (1998) of the Parliamentary Assembly of the Council of Europe on the right to privacy, adopted on 26 June 1998, read as follows. “10. It is therefore necessary to find a way of balancing the exercise of two fundamental rights, both of which are guaranteed in the European Convention on Human Rights: the right to respect for one ’ s private life and the right to freedom of expression. 11. The Assembly reaffirms the importance of every person ’ s right to privacy, and of the right to freedom of expression, as fundamental to a democratic society. These rights are neither absolute nor in any hierarchical order, since they are of equal value. 12. However, the Assembly points out that the right to privacy afforded by Article 8 of the European Convention on Human Rights should not only protect an individual against interference by public authorities, but also against interference by private persons or institutions, including the mass media. 13. The Assembly believes that, since all member states have now ratified the European Convention on Human Rights, and since many systems of national legislation comprise provisions guaranteeing this protection, there is no need to propose that a new convention guaranteeing the right to privacy should be adopted.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 24. The applicants complained of a violation of their right to freedom of expression as enshrined in Article 10 of the Convention, which provides : “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” 25. The Government contested that argument. A. Admissibility 26. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions (a) The applicants 27. The applicants submitted that Articles 179 bis and 179 ter of the Criminal Code were not sufficiently foreseeable as to their effects. They contended that there was no explicit reference to the use of a hidden camera and that the courts ’ case-law and the recommendations of the Swiss Press Council were vague. The Federal Court was attempting to impose absolute censorship on journalistic research involving covert investigative techniques, in particular the use of a hidden camera. 28. The applicants added that Articles 179 bis and 179 ter of the Criminal Code did not require personal communications to be impartial and did not protect personality rights, but rather the confidentiality of communications in the private sphere. The conversation in the present case had taken place during the broker ’ s working hours at a flat not belonging to him. Moreover, there had been no specific relationship of trust between the journalist and the broker. The question of protecting the broker ’ s private and intimate sphere therefore did not arise, since his voice and face had also been disguised. 29. The applicants further contended that they had complied with the duties and responsibilities incumbent on them in the circumstances at hand. They relied on decision no. 51/2007 of the Swiss Press Council, which had held that covert research was permitted if the information concerned was in the public interest and could not be obtained by any other means. The subject of the programme, which had aimed to draw public attention to malpractice in the field of private insurance in Switzerland, was of considerable public interest. Moreover, journalists were free to choose the methods they wished to employ to carry out their investigations. A realistic portrayal of the situation had been necessary in this particular case; otherwise, the broker could have successfully brought a civil claim against the journalists. The deterrent effect of the judicial decisions in issue was extremely significant, bearing in mind the absolute nature of the Federal Court ’ s findings. The applicants pointed out that they had given the broker the opportunity to respond to the criticisms after the recording and before the broadcast, and that he had refused to do so. (b) The Government 30. The Government did not dispute that the convictions in issue constituted “ interference ” with the applicants ’ exercise of their right to freedom of expression. However, they submitted that the interference had had a clear and foreseeable basis in law. Article 179 bis protected actual conversations and Article 179 ter protected spontaneous comments. They applied both to the intimate and private sphere, to the right to one’s own image and to the non-disclosure of one’s own comments, and pursued the legitimate aim of protecting the reputation and rights of others. 31. The Government submitted that the fact that the broker ’ s voice and face had been disguised had no bearing on the lawfulness of the applicants’ conduct, since the recording and broadcasting were in themselves punishable by law. Furthermore, as the Federal Court had held, it was not inconceivable that the broker ’ s relatives or colleagues might be able to recognise and identify him. In addition, no inferences could be drawn from the outcome of the domestic civil proceedings, since these were independent of the criminal proceedings and were based on a different rationale. 32. As to the proportionality of the measure in issue, the Government pointed out that the Federal Court had held that the use of a hidden camera was similar to the methods used by secret - investigation authorities or to the surveillance of postal correspondence and telecommunications. Such methods were permissible only if certain highly restrictive conditions were satisfied and in the case of extremely serious offences. The Federal Court ’ s decision in the present case had clearly been issued in relation to the specific circumstances, and not in general terms. The Government noted that the Federal Court had acknowledged that there was a considerable public interest in being informed of any shortcomings in the field of selling life insurance, but had found that the report broadcast in the present case had simply highlighted problems that were already well known, without revealing anything new. They agreed with the Federal Court that the journalists could have produced a transcript of the conversation without recording it, or could have used other, lawful, means, and that it was not the journalists’ task to gather absolute proof. In addition, the applicants, as experienced journalists, must have been aware that their conduct rendered them liable to a penalty that was not unreasonable in the present case. (c) Media Legal Defence Initiative (MLDI) 33. The third-party intervener, the MLDI, emphasised the importance of undercover techniques in producing certain types of report, particularly when it was necessary to strip away the carefully cultivated image of powerful or sophisticated organisations or to enter a clandestine world, access to which was restricted. When used in an ethical and focused way, such techniques were valuable tools of last resort to expose real practices that could not realistically be identified by other means. There was a difference between recordings made at the home or office of the person concerned and recordings made elsewhere. The MLDI pointed out that many European States accepted undercover techniques while regulating their use. 2. The Court ’ s assessment 34. It is not in dispute between the parties that the applicants ’ conviction constituted “interference by public authority” with their right to freedom of expression. 35. Such interference will infringe the Convention unless it satisfies the requirements of paragraph 2 of Article 10. The Court must therefore determine whether it was “prescribed by law”, pursued one or more of the legitimate aims set out in that paragraph and was “necessary in a democratic society” to achieve those aims. (a) Prescribed by law 36. The Court reiterates its settled case-law, according to which the expression “prescribed by law” not only requires that the impugned measure should have some basis in domestic law, but also refers to the quality of the law in question, which should be accessible to the person concerned and foreseeable as to its effects (see, among other authorities, Rotaru v. Romania [GC], no. 28341/95, § 52, ECHR 2000-V; VgT Verein gegen Tierfabriken v. Switzerland, no. 24699/94, § 52, ECHR 2001-VI; Gawęda v. Poland, no. 26229/95, § 39, ECHR 2002-II; and Maestri v. Italy [GC], no. 39748/98, § 30, ECHR 2004-I). However, it is primarily for the national authorities, notably the courts, to interpret and apply domestic law (see Kruslin v. France, 24 April 1990, § 29, Series A no. 176-A, and Kopp v. Switzerland, 25 March 1998, § 59, Reports of Judgments and Decisions 1998-II). 37. In the present case it has not been disputed that the applicants were convicted on the basis of a law that was accessible, namely Articles 179 bis and 179 ter of the Swiss Criminal Code. However, the applicants submitted that those provisions were not foreseeable as to their effects, as they did not contain any explicit prohibition of the use of a hidden camera. 38. The Court observes that the only difference in the parties ’ interpretation of these two Articles of the Swiss Criminal Code concerns their purpose, namely the aspects of privacy and personality rights which they are designed to protect; the applicants have not maintained that the type of punishable conduct defined in those Articles was unclear. 39. The Court therefore considers that the applicants – as journalists and editors making television programmes for a living – could not have failed to realise that, by using a hidden camera without the consent of a person who was the subject of a report and by broadcasting the report without that person’s permission, they were liable to a criminal penalty. 40. It thus concludes that the impugned interference was “prescribed by law” within the meaning of the second paragraph of Article 10 of the Convention. (b) Legitimate aim 41. The Government submitted that the applicants ’ conviction had pursued the legitimate aim of protecting the reputation and rights of others, specifically the insurance broker in question. The applicants, meanwhile, argued that the interference could not have pursued such an aim since the broker ’s face and voice had been disguised, and as such, that there had been no injury to his rights and reputation. 42. The Court observes that the broker ’ s image and voice were recorded without his knowledge and then broadcast against his wishes, anonymously but portraying him in a disparaging light – as a professional giving inaccurate advice – in a television programme with high viewing figures. 43. It therefore considers that the measure in issue may have pursued the aim of protecting the rights and reputation of others, specifically the broker ’ s right to respect for his own image, words and reputation. (c) Necessary in a democratic society ( i ) General principles 44. Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual ’ s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society”. As set forth in Article 10, freedom of expression is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly (see, among other authorities, Handyside v. the United Kingdom, 7 December 1976, § 49, Series A no. 24; Editions Plon v. France, no. 58148/00, § 42, ECHR 2004-IV; and Lindon, Otchakovsky -Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 45, ECHR 2007-IV). 45. The Court has also repeatedly emphasised the essential role played by the press in a democratic society. Although the press must not overstep certain bounds, regarding in particular protection of the reputation and rights of others, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest. Not only does the press have the task of imparting such information and ideas; the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of “public watchdog” (see Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, §§ 59 and 62, ECHR 1999-III, and Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 71, ECHR 2004-XI). Although formulated primarily with regard to the print media, these principles doubtless apply also to the audio - visual media (see Jersild v. Denmark, 23 September 1994, § 31, Series A no. 298 ). 46. Article 10 § 2 of the Convention states that freedom of expression carries with it “duties and responsibilities”, which also apply to the media even with respect to matters of serious public concern. These duties and responsibilities are liable to assume particular significance when there is a question of attacking the reputation of a named individual or, more generally, infringing the “rights of others”. Thus, special grounds are required before the media can be released from their ordinary obligation to verify their information and not publish factual statements that are defamatory. Whether such grounds exist depends in particular on the nature and degree of the allegations in question and the extent to which the media can reasonably regard their sources as reliable in that respect (see Pedersen and Baadsgaard, cited above, § 78, and Tønsbergs Blad A.S. and Haukom v. Norway, no. 510/04, § 89, 1 March 2007). 47. The Court further reiterates that all persons, including journalists, who exercise their freedom of expression undertake “duties and responsibilities”, the scope of which depends on their situation and the technical means they use (see Stoll v. Switzerland [GC], no. 69698/01, § 102, ECHR 2007-V). Thus, notwithstanding the vital role played by the media in a democratic society, journalists cannot in principle be released from their duty to obey the ordinary criminal law on the basis that Article 10 affords them protection. Paragraph 2 of Article 10 does not, moreover, guarantee a wholly unrestricted freedom of expression even with respect to press coverage of matters of serious public concern (ibid.). 48. When examining the necessity in a democratic society of an interference in the interests of the “protection of the reputation or rights of others”, the Court may be required to ascertain whether the domestic authorities struck a fair balance when protecting two values guaranteed by the Convention which may come into conflict with each other in certain cases, namely, on the one hand, freedom of expression as protected by Article 10 and, on the other, the right to respect for private life as enshrined in Article 8 (see Hachette Filipacchi Associés v. France, no. 71111/01, § 43, 14 June 2007, and MGN Limited v. the United Kingdom, no. 39401/04, § 142, 18 January 2011 ). 49. Moreover, the right to protection of reputation is a right which is protected by Article 8 of the Convention as an aspect of private life (see Chauvy and Others v. France, no. 64915/01, § 70, ECHR 2004-VI; Pfeifer v. Austria, no. 12556/03, § 35, 15 November 2007; Polanco Torres and Movilla Polanco v. Spain, no. 34147/06, § 40, 21 September 2010; and Axel Springer AG v. Germany [GC], no. 39954/08, § 83, 7 February 2012). In order for Article 8 to come into play, however, an attack on a person ’ s reputation must attain a certain level of seriousness and be made in a manner causing prejudice to personal enjoyment of the right to respect for private life (see A. v. Norway, no. 28070/06, § 64, 9 April 2009). 50. In previous cases the Court has had to examine attacks on the personal reputation of public figures (see Axel Springer AG, cited above ). It has established six criteria for analysing whether a balance has been struck between the right to freedom of expression and the right to respect for private life: contribution to a debate of general interest; how well known the person concerned is and what is the subject of the report; the prior conduct of the person concerned; the method of obtaining the information and its veracity; the content, form and consequences of the publication; and the severity of the sanction imposed (ibid., §§ 90-95). 51. The Court has also dealt with cases involving defamation with a bearing on an individual ’ s professional activities (a doctor in Kanellopoulou v. Greece, no. 28504/05, 11 October 2007; the director of a State-subsidised company in Tănăsoaica v. Romania, no. 3490/03, 19 June 2012; or judges in Belpietro v. Italy, no. 43612/10, 24 September 2013). 52. The present case differs from those previous cases in that, firstly, the broker was not a well-known public figure and, secondly, the report in question did not seek to criticise him personally but to denounce certain commercial practices employed within his profession (contrast Kanellopoulou, cited above). The impact of the report on the broker ’ s personal reputation was therefore limited, and the Court will take this particular aspect of the case into account in applying the criteria established in its case-law. 53. The Court further reiterates that the Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent an interference with the freedom of expression guaranteed under Article 10 of the Convention is necessary (see Tammer v. Estonia, no. 41205/98, § 60, ECHR 2001-I, and Pedersen and Baadsgaard, cited above, § 68). 54. In cases such as the present one the Court has held that the outcome of the application should not, in principle, vary according to whether it has been lodged with it under Article 10 of the Convention by the journalist who has published the offending article or under Article 8 by the person who was the subject of that article. Indeed, as a matter of principle these rights deserve equal respect (see Hachette Filipacchi Associés (ICI PARIS) v. France, no. 12268/03, § 41, 23 July 2009; Timciuc v. Romania ( dec. ), no. 28999/03, § 144, 12 October 2010; and Mosley v. the United Kingdom, no. 48009/08, § 111, 10 May 2011; see also § 11 of the Parliamentary Assembly Resolution cited in paragraph 23 above). Accordingly, the margin of appreciation should in principle be the same in both cases. 55. Where the balancing exercise between those two rights has been undertaken by the national authorities in conformity with the criteria laid down in the Court ’ s case-law, the Court would require strong reasons to substitute its own view for that of the domestic courts (see Palomo Sánchez and Others v. Spain [GC], nos. 28955/06 and 3 others, § 57, ECHR 2011, and MGN Limited, cited above, §§ 150 and 155). (ii) Application of these principles in the present case 56. The Court must first establish whether the report in question concerned a matter of public interest. It observes at the outset that the subject of the report, namely the poor-quality advice offered by private - insurance brokers, raised an issue in terms of consumer protection and thus concerned a debate of considerable public interest. 57. It is also important to examine whether the report in question was capable of contributing to the public debate on this issue (see Stoll, cited above, § 121). In this connection, the Court observes that the Federal Court found that the subject could in itself have been in the public interest if the journalists had made an attempt to determine the scale of the phenomenon, but that the report had not brought to light any new information on the quality of advice offered by insurance brokers. It further held that other methods, entailing less interference with the broker ’ s interests, could have addressed this issue satisfactorily. The Court considers, however, that all that matters is whether the report was capable of contributing to the debate on a matter of public interest and not whether it fully achieved that objective. 58. It therefore accepts that the report in issue addressed a matter of public interest. 59. The Court reiterates that there is little scope under Article 10 § 2 of the Convention for restrictions on freedom of expression in matters of public interest (see Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 61, ECHR 1999-IV; Stoll, cited above, § 106; Wingrove v. the United Kingdom, 25 November 1996, § 58, Reports 1996-V; and Dupuis and Others v. France, no. 1914/02, § 40, 7 June 2007). 60. Admittedly, as noted above, the broker who was filmed without his knowledge was not a public figure. He had not given his consent to being filmed and could therefore have “had a reasonable expectation of privacy” as regards the conversation (see, mutatis mutandis, Halford v. the United Kingdom, 25 June 1997, §§ 44 - 45, Reports 1997-III, and Perry v. the United Kingdom, no. 63737/00, §§ 36-43, ECHR 2003-IX). However, the report did not focus on the broker himself but on certain commercial practices employed within a particular profession. Furthermore, the meeting did not take place in the broker ’ s offices or on any other business premises (see, by contrast and mutatis mutandis, Chappell v. the United Kingdom, 30 March 1989, § 51, Series A no. 152-A; Niemietz v. Germany, 16 December 1992, §§ 29-33, Series A no. 251- B; Funke v. France, 25 February 1993, § 48, Series A no. 256-A; Crémieux v. France, 25 February 1993, § 31, Series A no. 256-B; and Miailhe v. France (no. 1), 25 February 1993, § 28, Series A no. 256-C). The Court therefore considers that the interference with the broker ’ s private life was less serious than if the report had been personally and exclusively focused on him. 61. The way in which the information was obtained and its veracity are also important factors. The Court has previously held that the safeguard afforded by Article 10 to journalists in relation to reporting on issues of general interest is subject to the proviso that they are acting in good faith and on an accurate factual basis and provide “reliable and precise” information in accordance with the ethics of journalism (see, for example, Fressoz and Roire v. France [GC], no. 29183/95, § 54, ECHR 1999-I; Pedersen and Baadsgaard, cited above, § 78; Stoll, cited above, § 103; and Axel Springer AG, cited above, § 93). It observes in the present case that, although the parties referred to different sources, they nonetheless agreed in substance that the use of a hidden camera was not absolutely prohibited in domestic law, but could be accepted subject to strict conditions (see paragraphs 29 and 32 above). It was not disputed among the parties that the use of this technique was permitted only where there was an overriding public interest in the dissemination of the relevant information, provided that such information could not be obtained by any other means. The Court has already established that the report concerned a matter of public interest. It considers that what is important at this stage is an assessment of the applicants ’ conduct. Although the broker might legitimately have felt that he had been deceived by the journalists, they nevertheless cannot be accused of having deliberately acted in breach of professional ethics. They did not disregard the rules on journalism as laid down by the Swiss Press Council (see paragraph 29 above) limiting the use of hidden cameras, but instead inferred – incorrectly, in the view of the Federal Court – that the subject of their report entitled them to obtain information by those means. The Court notes that the Swiss courts themselves were not unanimous on this question, since they acquitted the applicants at first instance before subsequently convicting them. That being so, the Court considers that the applicants should be given the benefit of the doubt as to whether they really intended to comply with the ethical rules applicable to the present case regarding the method used to obtain information. 62. As regards the facts of the case, their veracity has never been disputed. Whether it might have been of more interest to consumers, as the Government argued, to expose the scale of the alleged problems rather than their nature has no bearing on this finding. 63. The Court further reiterates that the way in which a report or photograph is published and the manner in which the person concerned is portrayed in it may also be factors to be taken into consideration (see Wirtschafts -Trend Zeitschriften-Verlagsgesellschaft mbH v. Austria (no. 3), nos. 66298/01 and 15653/02, § 47, 13 December 2005; Reklos and Davourlis v. Greece, no. 1234/05, § 42, 15 January 2009; and Jokitaipale and Others v. Finland, no. 43349/05, § 68, 6 April 2010). The extent to which the report and photograph have been disseminated may also be an important factor, depending on whether the newspaper is a national or local one, and has a large or a limited circulation (see Karhuvaara and Iltalehti v. Finland, no. 53678/00, § 47, ECHR 2004 ‑ X ). 64. In the present case the Court observes that the applicants recorded a conversation featuring the images and sound of purported negotiations between the broker and the journalist. It considers that the recording itself entailed only limited interference with the broker ’ s interests, given that only a restricted group of individuals had access to the recording, as the Government accepted. 65. The recording was then broadcast as part of a report which was particularly disparaging towards the broker, as the Court has already noted. Although only brief excerpts of the recording were shown, this footage was liable to entail a more significant interference with the broker ’ s right to privacy, since it was seen by a large number of viewers – approximately 10,000 according to the Government. The Court acknowledges that the audio - visual media often have a much more immediate and powerful effect than the print media (see Jersild, cited above, § 31). Viewers of the programme were thus able to form an opinion as to the quality of the broker’s advice and his lack of professionalism. Nevertheless, a decisive factor in the present case is that the applicants had pixelated the broker ’ s face so that only his hair and skin colour could still be made out; they also distorted his voice. Furthermore, although the broker ’ s clothes were still visible, they did not have any distinctive features either. Lastly, the meeting did not take place on the broker ’ s usual business premises. 66. The Court therefore considers, having regard to the circumstances of the case, that the interference with the private life of the broker – who, it reiterates, declined to comment on the interview – was not so serious (see A. v. Norway, cited above) as to override the public interest in receiving information about alleged malpractice in the field of insurance brokerage. 67. Lastly, the Court must take into account the nature and severity of the sanction. It reiterates in this connection that, in some cases, a person ’ s conviction in itself may be more important than the minor nature of the penalty imposed (see Stoll, cited above, §§ 153-54). In the present case, although the pecuniary penalties of twelve day-fines for the first three applicants and four day-fines for the fourth applicant were relatively modest, the Court considers that the sanction imposed by the criminal court may be liable to deter the media from expressing criticism (ibid., § 154), even though the applicants themselves were not denied the opportunity to broadcast their report. 68. Having regard to the foregoing, the Court considers that the measure in dispute in the present case was not necessary in a democratic society. There has therefore been a violation of Article 10 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 69. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 70. The applicants did not submit a claim for just satisfaction. Accordingly, there is no call to award them any sum on that account. | In this case, the Court was for the first time called on to examine an application concerning the use of hidden cameras by journalists to provide public information on a subject of general interest, whereby the person filmed was targeted not in any personal capacity but as a representative of a particular professional category. The Court held that, in the applicants’ case, there had been a violation of Article 10 (freedom of expression) of the Convention, considering in particular that the interference in the private life of the broker, who had turned down an opportunity to express his views on the interview in question, had not been serious enough to override the public interest in information on malpractice in the field of insurance brokerage. The Court further also asserted that the applicants deserved the benefit of the doubt in relation to their desire to observe the ethics of journalism as defined by Swiss law, citing the example of their limited use of the hidden camera. |
28 | Affiliation- and inheritance-related rights | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Law of succession in the FRG 17. The Children Born outside Marriage (Legal Status) Act of 19 August 1969, which came into force on 1 July 1970, provided that on the father ’ s death, children born outside marriage after 1 July 1949 – shortly after the entry into force of the Basic Law – were entitled to compensation from the heirs in an amount equivalent to their share of the estate ( Erbersatzanspruch ). The sole exception concerned children born outside marriage before 1 July 1949 : [1] the first sentence of section 12(10)(2) of the Act excluded them from any statutory entitlement to the estate and from the right to financial compensation. 18. In 1997, in the general context of the reform of family law with regard to custody and parental rights, the legislature also made changes to the law of succession for children born outside marriage through the Inheritance Rights Equalisation Act of 16 December 1997, which came into force on 1 April 1998. Children born outside marriage are in principle now treated as equal to those born within marriage as regards all aspects of the law of succession. However, the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act of 19 August 1969 remains in force as a transitional provision. B. Rules of succession applicable following German reunification 19. By section 235(1)(2), taken together with section 25(1), of the Introductory Act to the FRG Civil Code, children born outside marriage in the territory of the former GDR before 3 October 1990 (the date on which German reunification took effect) have the same inheritance rights as children born within marriage in accordance with the FRG Civil Code if the father died after 3 October 1990 and had been resident in the territory of the former GDR on that date. Section 235(1)(2) seeks to protect the rights of children born outside marriage prior to reunification who would have been covered by the law of the former GDR, which afforded equal inheritance rights to children born outside and within marriage. 20. It follows that the inheritance rights of children born outside marriage before 1 July 1949 are dependent on the deceased ’ s place of residence on 3 October 1990: if the deceased was resident in the territory of the former GDR, the child born outside marriage has the same inheritance rights as a child born within marriage; if, however, the deceased was resident in the territory of the FRG, the child born outside marriage has no statutory entitlement to the estate. C. Case-law of the Federal Constitutional Court 1. Concerning the conformity with the Basic Law of the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act of 19 August 1969 21. In a leading decision of 8 December 1976 the Federal Constitutional Court held that the provision in issue was compatible with the Basic Law. It stated, in particular, that fixing 1 July 1949 as the cut-off date was objectively justified in view of the practical and procedural difficulties of establishing the paternity of children born outside marriage before that date, since the scientific methods used at the time were less developed than present-day methods. Many paternity suits were therefore unlikely to succeed owing to insufficient evidence. Moreover, the new legislation made it possible to contest declarations of paternity drawn up before 1 July 1949. Accordingly, having regard to those factors, the legislature had not overstepped its margin of discretion in this regard. Furthermore, it had to a certain extent been able to take account of existing uncertainties regarding the law of succession and of the opinion of those opposed to reforming the legal status of children born outside marriage. Lastly, the “legitimate expectation ” of the deceased and their families that the exception provided for in the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act would be maintained also deserved a certain degree of protection. 22. In a decision of 3 July 1996 the Federal Constitutional Court confirmed its earlier position notwithstanding the reunification of Germany. It held that the legislature had taken into account the social conditions prevailing when the Children Born outside Marriage (Legal Status) Act had been enacted. This objective justification was still present even though children born outside marriage in an entirely different social context had the same rights as children born within marriage. 2. Concerning the conformity with the Basic Law of section 1934c of the Civil Code 23. In a decision of 19 November 1986 the Federal Constitutional Court held that section 1934c of the Civil Code, which provided that a child born outside marriage was entitled to a share in the estate only if at the time of the father ’ s death his paternity of the child had been acknowledged or determined by a court ruling, or judicial proceedings to that effect were pending, was not in conformity with Article 6 § 5 of the Basic Law. D. Subsequent developments 24. During the passage of the Children ’ s Rights Improvement Act ( Kinderrechteverbesserungsgesetz ) of 9 April 2002, the legislature again upheld the exception in the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act. It took the view that that provision was compatible with the Basic Law in the light of the Federal Constitutional Court ’ s decisions of 8 December 1976 and 3 July 1996 (see paragraphs 21-22 above), which had created an even stronger “ legitimate expectation ” ( Vertrauenstatbestand ) for the deceased and his family. THE LAW I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 8 25. The applicant submitted that the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act, read in conjunction with section 235(1)(2) of the Introductory Act to the Civil Code, and the decisions of the domestic courts had infringed her right to respect for family life as guaranteed by Article 8 of the Convention, which provides: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” She complained in particular that she was excluded from any statutory entitlement to inherit as a child born outside marriage before 1 July 1949 and also relied on Article 14 of the Convention, which provides: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” 26. The Government contested that argument. 27. Since the application mainly concerns the alleged discriminatory treatment of the applicant, the Court considers it appropriate to examine it first under Article 14 of the Convention taken in conjunction with Article 8. A. Admissibility Applicability of Article 8 of the Convention 28. The Court reiterates that Article 14 of the Convention complements the other substantive provisions of the Convention and its Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts in issue fall within the ambit of one or more of the latter (see, among many other authorities, Pla and Puncernau v. Andorra, no. 69498/01, § 54, ECHR 2004-VIII). 29. The Court must therefore determine whether Article 8 of the Convention is applicable in the instant case. 30. In this connection, the existence or non-existence of “family life” within the meaning of Article 8 is essentially a question of fact depending upon the real existence in practice of close personal ties, in particular the demonstrable interest in and commitment by the father to the child both before and after the birth (see, among other authorities, L. v. the Netherlands, no. 45582/99, § 36 in fine, ECHR 2004-IV). Furthermore, a right of succession between children and parents is so closely related to family life that it comes within the sphere of Article 8 (see Marckx v. Belgium, 13 June 1979, § 52, Series A no. 31; Camp and Bourimi v. the Netherlands, no. 28369/95, § 35, ECHR 2000-X; and Merger and Cros v. France, no. 68864/01, § 48, 22 December 2004). 31. In the instant case the Court observes that the applicant ’ s father recognised her after her birth and had regular contact with her despite the difficult circumstances resulting from the existence of two separate German States; after German reunification, their contact became closer. 32. Accordingly, the Court is in no doubt that the facts of the case fall within the ambit of Article 8 of the Convention. Article 14 can therefore apply in conjunction with Article 8. 33. The Court observes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. The Court further notes that no other ground for declaring it inadmissible has been established. It must therefore be declared admissible. B. Merits 34. The Court notes at the outset that the Government did not dispute that the application of the relevant provisions of domestic law gave rise to a difference in treatment for a child born outside marriage before the cut-off date of 1 July 1949, as compared with a child born within marriage, a child born outside marriage after that date and also, since German reunification, a child born outside marriage before that date who was covered by the law of the former GDR because the father had been resident in GDR territory at the time the reunification had taken effect. 35. The Court reiterates in this connection that in the enjoyment of the rights and freedoms guaranteed by the Convention, Article 14 affords protection against different treatment, without an objective and reasonable justification, of persons in similar situations (see Mazurek v. France, no. 34406/97, § 46, ECHR 2000-II). 36. It must therefore be determined whether the alleged difference in treatment was justified. 37. The applicant submitted that the difference in treatment as compared with children born outside marriage after the cut-off date of 1 July 1949 or those covered by the law of the former GDR was not based on any objective justification. As she had lived in the territory of the former GDR until 1989, she should have been afforded the same inheritance rights as a child born within marriage, irrespective of where her father had been resident when German reunification had taken effect. Furthermore, her father had not had a spouse or any direct descendants, but only heirs of the third order whom he had not known and whom the Saarbrücken Regional Court had, moreover, had great difficulty in tracing. By contrast, he had been in regular contact with the applicant and had therefore surely been unaware that he should have made special arrangements for her to be able to inherit from him. The applicant submitted in conclusion that her exclusion from any entitlement to the estate had been wholly disproportionate. 38. The Government, on the contrary, submitted that the difference in treatment had been based on an objective and reasonable justification. The decisions taken by the legislature and the domestic courts had been appropriate and not discriminatory. They emphasised, firstly, that, as in the majority of Contracting States, the gradual harmonisation of the rights of children born outside marriage with those of children born within marriage had given rise to heated debates on matters of public interest and had raised numerous moral, legal, political and economic questions. Furthermore, following its reunification, Germany had been confronted with a particular situation that warranted allowing it a wide margin of appreciation, as the Court had done in Von Maltzan and Others v. Germany (( dec .) [GC], nos. 7191 6/01, 71917/01 and 10260/02, §§ 110-11, ECHR 2005-V). They added that the intention of the legislature had been to preserve legal certainty and any “legitimate expectation” that the deceased and their families might have had that the exception provided for in the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act would be maintained. This “expectation” had been further strengthened by the Federal Constitutional Court ’ s two decisions of 8 December 1976 and 3 July 1996. The fact that after German reunification the legislature had taken account of the situation of children born in an entirely different social context could not alter that position. Moreover, in view of the advanced age of any such fathers who were still alive, it would no longer be practicable to amend the existing legislation. Such an amendment would, furthermore, have the effect of discriminating against children born outside marriage whose father had died before the new legislation had come into force and against any children concerned who had been unable to prove the identity of their father at the time owing to the lack of sufficient technical means. 39. The Court reiterates that a distinction is discriminatory for the purposes of Article 14 of the Convention if it “has no objective and reasonable justification”, that is, if it does not pursue a “legitimate aim” or if there is not a “reasonable relationship of proportionality between the means employed and the aim sought to be realised” (see, in particular, mutatis mutandis, Inze v. Austria, 28 October 1987, § 41, Series A no. 126, and Mazurek, cited above, § 48). 40. The Court reiterates in this connection that the Convention is a living instrument which must be interpreted in the light of present-day conditions (see, among other authorities, Marckx, cited above, § 41, and Johnston and Others v. Ireland, 18 December 1986, § 53, Series A no. 112). Today the member States of the Council of Europe attach great importance to the question of equality between children born in and children born out of wedlock as regards their civil rights. This is shown by the 1975 European Convention on the Legal Status of Children born out of Wedlock, which is currently in force in respect of twenty-one member States and has not been ratified by Germany. Very weighty reasons would accordingly have to be advanced before a difference of treatment on the ground of birth out of wedlock could be regarded as compatible with the Convention (see, mutatis mutandis, Inze, cited above, § 41; Mazurek, cited above, § 49; and Camp and Bourimi, cited above, § 38 ). 41. The Court considers that the aim pursued by maintaining the impugned provision, namely the preservation of legal certainty and the protection of the deceased and his family, is arguably a legitimate one. 42. It further notes that, in line with other Contracting States, the German legislature has, through the 1969 Children Born outside Marriage (Legal Status) Act and subsequently the 1997 Inheritance Rights Equalisation Act, gradually created an equal status between children born outside and within marriage as regards the law of succession. Following German reunification, in order to avoid any disadvantage for children born outside marriage in a different social context, it also granted them the same inheritance rights as children born within marriage, provided that the father had been resident in the territory of the former GDR at the time when the reunification had taken effect. However, it maintained the exception laid down in the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act, which excluded children born outside marriage before 1 July 1949 from any statutory entitlement to inherit. The constitutionality of that provision was also confirmed by the Federal Constitutional Court, first in 1976 and twenty years later in 1996 (see “Relevant domestic law and practice”, paragraphs 21-22 above ). In the instant case the Federal Constitutional Court applied its case-law, although the exchange of arguments between the Saarbrücken Regional Court and the Saarland Court of Appeal shows that the advisability of maintaining the exception has also been the subject of debate at domestic level (see paragraphs 10-15 above). 43. In this connection, the Court notes that the legislature ’ s decision to maintain this exception reflected the state of German society at the time and the opposition of part of the public to any reform of the legal status of children born outside marriage. Furthermore, there were genuine practical and procedural difficulties in establishing the paternity of children. Accordingly, as the Federal Constitutional Court stated in its leading decision of 8 December 1976, the continued application of the provision in question could be said to have been based on objective reasons (see H.R. v. Germany, no. 17750/91, Commission decision of 10 June 1992). However, in the Court ’ s view, the arguments put forward at the time are no longer valid today; like other European societies, German society has evolved considerably and the legal status of children born outside marriage has become equivalent to that of children born within marriage. Furthermore, the practical and procedural difficulties in proving the paternity of children have receded, as the use of DNA testing to establish paternity now constitutes a simple and very reliable method. Lastly, a new situation has been created as a result of German reunification and the equalisation of the legal status of children born outside and within marriage across a large part of German territory. Accordingly, the Court cannot agree with the reasoning adopted by the Federal Constitutional Court in the instant case. The Court considers, in particular, that, having regard to the evolving European context in this sphere, which it cannot neglect in its necessarily dynamic interpretation of the Convention (see paragraph 40 above), the aspect of protecting the “legitimate expectation” of the deceased and their families must be subordinate to the imperative of equal treatment between children born outside and within marriage. It reiterates in this connection that as early as 1979 it held in its Marckx judgment (cited above, §§ 54-59) that the distinction made for succession purposes between “illegitimate” and “legitimate” children raised an issue under Articles 14 and 8 taken together. 44. As to whether the means employed were proportionate to the aim pursued, a further three considerations appear decisive to the Court in the present case. Firstly, the applicant ’ s father had recognised her after her birth and had always had regular contact with her despite the difficult circumstances linked to the existence of two separate German States. He had neither a wife nor any direct descendants, but simply heirs of the third order whom he apparently did not know. The aspect of protecting these distant relatives ’ “legitimate expectations ” cannot therefore come into play. Secondly, the applicant has spent a large portion of her life in the former GDR, where she grew up in a social context in which children born outside and within marriage enjoyed equal status. However, she was unable to derive any benefit from the rules providing for equal inheritance rights between children born outside and within marriage, since her father had not been resident in the territory of the former GDR at the time when German reunification had taken effect. In this connection, it should be noted that following German reunification, the legislature sought to protect the inheritance rights of children born outside marriage whose father had been resident in the territory of the former GDR; since inheritance rights come under the protection of the right of property in German law, the factor taken into account was the deceased ’ s place of residence. Yet while this difference of treatment may have been justified in the light of the social context in the former GDR, it nevertheless had the effect of aggravating the existing inequality in relation to children born outside marriage before 1 July 1949 whose father had been resident in the FRG. Lastly, the application of the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act excluded the applicant from any statutory entitlement to the estate, without affording her any financial compensation. The Court cannot find any ground on which such discrimination based on birth outside marriage can be justified today, particularly as the applicant ’ s exclusion from any statutory entitlement to inherit penalised her to an even greater extent than the applicants in other similar cases brought before it (see, for example, Merger and Cros, cited above, §§ 49-50, and Mazurek, cited above, §§ 52-55). 45. Having regard to all the above considerations, the Court concludes that there was not a reasonable relationship of proportionality between the means employed and the aim pursued. There has therefore been a violation of Article 14 of the Convention taken in conjunction with Article 8. 46. Having regard to its conclusion in the previous paragraph, the Court is of the opinion that there is no need to examine separately the complaint under Article 8 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 47. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 1. Pecuniary damage 48. The applicant claimed the sum of 95,828.59 euros (EUR) in respect of pecuniary damage, corresponding to the total amount she would have inherited as a statutory heir. To that end, she submitted certified copies of statements of her father ’ s various bank accounts, which indicated his assets at the time of his death. The applicant submitted that her father had had no debts; his burial costs had amounted to approximately EUR 1,000 and had been directly debited from his current account. 49. The Government referred to the total sum of 53,000 German marks – equivalent to EUR 26,500 – which the notary instructed by the applicant to apply for a certificate of inheritance had indicated in his statement of costs ( Kostenberechnung ) of 13 July 1998; the domestic courts had subsequently taken this sum as a basis for determining the value of the subject matter of the case. In the Government ’ s submission, the precise value of the deceased ’ s assets could not be determined from the additional documents submitted by the applicant, as they did not indicate when any sums owing to the deceased were due to be paid or whether he had any liabilities. 2. Non-pecuniary damage 50. The applicant also claimed compensation for non-pecuniary damage, which she assessed at EUR 50,000, for having been completely deprived of her inheritance rights throughout the proceedings before the domestic courts. 51. The Government left the matter to the Court ’ s discretion. B. Costs and expenses 52. The applicant also claimed EUR 2,859.65 for the costs and expenses incurred before the domestic courts and the Court. 53. The Government submitted that no causal link had been established between the costs incurred and the alleged violation. Furthermore, in one set of proceedings the applicant ’ s lawyer had specified the amount being sought in legal aid ( EUR 351.41) at a very late stage and his application to that end had therefore been refused by the competent authority. C. Conclusion 54. In the circumstances of the case, the Court considers that the question of the application of Article 41 of the Convention is not ready for decision. Consequently, it must be reserved and the subsequent procedure fixed taking due account of the possibility of an agreement between the respondent State and the applicant (Rule 75 § 1 of the Rules of Court). The Court allows the parties three months in which to reach such agreement. | The Court held that there had been a violation of Article 14 (prohibition of discrimination) in conjunction with Article 8 (right to respect for private and family life) of the Convention. It could not find any ground on which such discrimination based on birth outside marriage could be justified today, particularly as the applicant’s exclusion from any statutory entitlement to inherit penalised her to an even greater extent than the applicants in other similar cases brought before it. |
485 | Failure to enforce a judgment acknowledging gender discrimination | II. RELEVANT DOMESTIC LAW AND PRACTICE ... 1 8. The relevant provisions of the Institutional Law on the Constitutional Court read as follows: ... Article 55 “1. A judgment granting constitutional protection ( amparo ) shall contain one or more of the following pronouncements: (a) a declaration of nullity of the decision, act or resolution that prevented the full exercise of protected rights and freedoms, specifying, where applicable, the scope of its consequences; (b) recognition of the public right or freedom [concerned] in the light of the constitutional provision relating to its substance; (c) full restoration of the appellant’s right or freedom and adoption, where appropriate, of measures conducive to its preservation; ...” THE LAW ... II. ALLEGED VIOLATION OF ARTICLE 6 § 1 COMBINED WITH ARTICLE 14 OF THE CONVENTION 36. The applicant complained of a violation of her right to a fair hearing within a reasonable time and also that she had been a victim of discrimination on grounds of sex. She further alleged that she had been unable to obtain redress for the violation of her fundamental right as acknowledged by the Constitutional Court. She relied on Articles 6 § 1 and 14 of the Convention, which read as follows: Article 6 “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing within a reasonable time ... by [a] ... tribunal ...” Article 14 “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” 37. The Government disagreed. 38. Since the Court is master of the characterisation to be given in law to the facts of the case, when giving notice of the present case to the parties it considered it appropriate to examine the applicant’s complaint from the point of view of the right of access to a court, of which the execution of a judgment given by any court must be regarded as an integral part (see, among other authorities, Hornsby v. Greece, 19 March 1997, § 40, Reports of Judgments and Decisions 1997 ‑ II). A. The parties’ submissions 39. The Government pointed out that in its judgment of 15 January 2007 the Constitutional Court had found in favour of the applicant and allowed her amparo appeal in respect of her complaint concerning the principle of non ‑ discrimination when in fact, as her child had reached the prescribed age limit by the time the execution proceedings were pending before the Constitutional Court, the applicant was no longer entitled to the reduced working hours she had applied for. In the Government’s submission, the fact that it was materially impossible to execute the Constitutional Court’s judgment did not constitute a violation of the right to a fair hearing in this case, unlike the facts examined in the Hornsby judgment (cited above), which concerned the administrative authorities’ delay in complying with court judgments. 40. As to the alleged infringement of the principle of non-discrimination, the Government submitted that the infringement had been acknowledged and remedied by the Constitutional Court. According to the Government, the principle of subsidiarity precluded the examination by the Court of the alleged violation of a right that had already been found by the domestic courts to have been violated. 41. The applicant, on the other hand, considered that as the Constitutional Court had set aside the judgment of the Madrid Employment Tribunal, no court had examined the merits of her claim. She referred to the Hornsby case cited above, and submitted that the fact that the Constitutional Court had set aside the judgments of the lower court did not suffice to make the proceedings compatible with Article 6 of the Convention. B. The Court’s assessment 42. The right of access to a court cannot oblige a State to have every single civil judgment executed, no matter what the judgment or the circumstances (see Sanglier v. France, no. 50342/99, § 39, 27 May 2003). In the present case the judgment in issue is the Constitutional Court’s judgment of 15 January 2007 which, after finding a violation of the principle of non-discrimination on grounds of sex, set aside the Madrid Employment Tribunal’s judgment of 25 September 2003 and ordered the that court to deliver a new judgment in keeping with the fundamental right in issue (see paragraph 11 above). 43. However, the Madrid Employment Tribunal failed to act on the Constitutional Court’s judgment of 15 January 2007 as required. In a second judgment, of 6 September 2007, the Employment Tribunal considered that the applicant’s request to work fewer hours went beyond the limits authorised by law and that she had not sufficiently justified the need for a reduction in her working hours (see paragraph 12 above). The applicant had thus been obliged to appeal once again to the Constitutional Court. In its decision of 12 January 2009 that court found that its judgment of 15 January 2007 had been incorrectly executed, and set aside the second judgment of the Madrid Employment Tribunal (see paragraph 14 above). 44. The Court reiterates that the State is required to provide litigants with a system whereby they are able to secure the proper execution of domestic court decisions. Its task is to consider whether the measures taken by the national authorities – a judicial authority in the instant case – to have the decisions concerned executed were adequate and sufficient (see Ruianu v. Romania, no. 34647/97, § 66, 17 June 2003), for when the competent authorities are required to take action to execute a judicial decision and fail to do so – or to do it properly – their inertia engages the responsibility of the State under Article 6 § 1 of the Convention (see, mutatis mutandis, Scollo v. Italy, 28 September 1995, § 44, Series A no. 315 ‑ C). 45. The Court observes that in the present case, in its decision of 12 January 2009, the Constitutional Court found a violation of the applicant’s right to the execution of its earlier judgment finding a violation of the principle of non-discrimination. The Court reiterates that a decision or measure in the applicant’s favour is not in principle sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see Brumărescu v. Romania [GC], no. 28342/95, § 50, ECHR 1999 ‑ VII, and Scordino v. Italy (no. 1) [GC], no. 36813/97, § 180, ECHR 2006 ‑ V). It notes that in spite of the two judgments of the Constitutional Court, the violation found by that domestic court has still not been repaired to this day. 46. The Court observes that the applicant’s initial intention was not to seek compensation but to obtain recognition of her right to work reduced hours in order to be able to look after her son before he reached the age of six. Her claim for compensation only came later, when her son was no longer young enough for her to have the right to work shorter hours. 47. In its decision of 12 January 2009 the Constitutional Court refused to award the applicant compensation in this respect and gave no indication as to any possibility of applying to another administrative or judicial body at a later stage. 48. It is true that because of the child’s age when the proceedings ended, it was no longer possible to afford the applicant reparation in kind for the infringement of her right found by the courts. It is not for the Court to tell the respondent State how it should provide for redress in the framework of the amparo appeal. It can only note that the protection afforded by the Constitutional Court proved ineffective in the present case. On the one hand the applicant’s request to work special hours was never answered on the merits, even though the two rulings against her by the Employment Tribunal were set aside. And on the other hand the applicant’s amparo appeal before the Constitutional Court served no purpose as that court found that Article 55 § 1 of the institutional Law on the Constitutional Court made no provision for compensation to redress a violation of a fundamental right. The failure to restore the applicant’s rights in full made the protection afforded by the Constitutional Court’s amparo appeal finding in her favour illusory in the present case. 49. The Court accordingly finds that there has been a violation of Article 6 § 1 in conjunction with Article 14 of the Convention. ... IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 54. Article 41 of the Convention provides “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 55. The applicant claimed EUR 40,986 in respect of non-pecuniary damage. This is the same amount she claimed before the Spanish Constitutional Court. 56. The Government considered that the finding of a violation by the Constitutional Court in itself constituted sufficient just satisfaction in the present case. In any event they did not agree with the assessment criterion used by the applicant to fix the amount claimed. 57. The Court considers that the applicant should be awarded EUR 16,000 in respect of non-pecuniary damage. B. Costs and expenses 58. The applicant claimed EUR 5,760 for the costs and expenses incurred in the proceedings before the Court, which is 12% of the amount she claimed in respect of non-pecuniary damage, but no bills have been produced. 59. The Government noted that this claim was unsubstantiated and considered it inappropriate to award a percentage of the amount awarded in respect of the applicant’s main claim to cover her costs and expenses. They left it to the Court’s judgment to fix the amount to be awarded. 60. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. Furthermore, under Rule 60 § 2 of the Rules of Court itemised particulars of any claim made under Article 41 of the Convention must be submitted, together with the relevant supporting documents or vouchers, failing which the Chamber may reject the claim in whole or in part (see Buscarini and Others v. Saint-Marin [GC], no. 24645/94, § 48, ECHR 1999-I, and Gómez de Liaño y Botella v. Spain, no. 21369/04, § 86, 22 July 2008). In the present case the applicant has failed to submit any invoices to substantiate her claim. The Court accordingly considers that no award should be made under this head and dismisses the claim. C. Default interest 61. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 6 § 1 (right to a fair hearing within a reasonable time) combined with Article 14 (prohibition of discrimination) of the Convention. It found that the violation of the principle of non-discrimination on grounds of sex, as established by the Spanish Constitutional Court’s ruling in favour of the applicant, had never been remedied on account of the non-enforcement of the relevant decision and the failure to provide her with compensation. |
1,040 | Prohibition of discrimination (Article 14 of the Convention) and General prohibition of discrimination (Article 1 of Protocol No. 12 to the Convention) | II. RELEVANT DOMESTIC LAW A. Inheritance Tax Act 1984 13. By sections 3, 3A and 4 of the Inheritance Tax Act 1984, inheritance tax is charged at 40% on the value of a person ’ s property, including his or her share of anything owned jointly, passing on his or her death, and on lifetime transfers made within seven years of death. The charge is subject to a nil rate threshold of GBP 300,000 for transfers between 5 April 2007 and 5 April 2008 (section 98 of the Finance Act 2005). 14. Interest is charged, currently at 4%, on any tax not paid within six months after the end of the month in which the death occurred, no matter what caused the delay in payment. Any inheritance tax payable by a person to whom land is transferred on death may be paid, at the taxpayer ’ s election, in ten equal yearly instalments, unless the property is sold, in which case outstanding tax and interest must be paid immediately (section 227(1)-(4)). 15. Section 18(1) of the Inheritance Tax Act provides that property passing from the deceased to his or her spouse is exempt from charge. With effect from 5 December 2005 this exemption was extended to a deceased ’ s “civil partner” (see paragraphs 16-18 below). B. The Civil Partnership Act 2004 16. The purpose of the Civil Partnership Act was to provide same-sex couples with a formal mechanism for recognising and giving legal effect to their relationships, and to confer on them, as far as possible, the same rights and obligations as entailed by marriage. 17. A couple is eligible to form a civil partnership if they are ( i ) of the same sex; (ii) not already married or in a civil partnership; (iii) over the age of 16; and (iv) not within the prohibited degrees of relationship. 18. A civil partnership is, like marriage, indeterminate in nature and can end only on death, dissolution or annulment. The Civil Partnership Act created a comprehensive range of amendments to existing legislation, covering, inter alia, pensions, tax, social security, inheritance and immigration, intended to create parity between civil partnership and marriage for all purposes except in the very few cases where there was an objective justification for not doing so. The courts have similar powers to control the ownership and use of the civil partners ’ property upon dissolution of a civil partnership as upon dissolution of a marriage. 19. When the Civil Partnership Bill was passing through Parliament, an amendment to it was adopted in the House of Lords by 148 votes to 130, which would have had the effect of extending the availability of civil partnership, and the associated inheritance - tax concession, to family members within the “prohibited degrees of relationship”, if ( i ) they were over 30 years of age; (ii) they had cohabited for at least twelve years; and (iii) they were not already married or in a civil partnership with some other person. The amendment was reversed when the Bill returned to the House of Commons. 20. During the course of the debate in the House of Lords, Lord Alli, a Labour peer, stated: “I have great sympathy with the noble Baroness, Lady O ’ Caithlin [the Conservative peer who proposed the amendment], when she talks about siblings who share a home or a carer who looks after a disabled relative. Indeed, she will readily acknowledge that I have put the case several times – at Second Reading and in Grand Committee – and I have pushed the government very hard to look at this issue. There is an injustice here and it needs to be dealt with, but this is not the Bill in which to do it. This Bill is about same-sex couples whose relationships are completely different from those of siblings.” During the same debate, Lord Goodhart, a Liberal Democrat peer, stated: “There is a strongly arguable case for some kind of relief from inheritance tax for family members who have been carers to enable them to continue living in the house where they have carried out their caring duties. But that is a different argument and this is not the place or the time for that argument. This Bill is inappropriate for dealing with that issue.” During the course of the debate in the Standing Committee of the House of Commons, Jacqui Smith, Member of Parliament, Deputy Minister for Women and Equality, stated: “As I suggested on Second Reading, we received a clear endorsement of the purpose of the Bill – granting legal recognition to same-sex couples, ensuring that the many thousands of couples living together in long-term committed relationships will be able to ensure that those relationships are no longer invisible in the eyes of the law, with all the difficulties that that invisibility brings. We heard a widespread agreement from Members across almost all parties that the Civil Partnership Bill is not the place to deal with the concerns of relatives, not because those concerns are not important, but because the Bill is not the appropriate legislative base on which to deal with them.” C. The Human Rights Act 1998 21. The Human Rights Act 1998 entered into force on 2 October 2000. Section 3(1) provides: “So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.” Section 4 of the 1998 Act provides (so far as relevant): “(1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right. (2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility. ... (6) A declaration under this section ... (a) does not affect the validity, continuing operation or enforcement of the provision in respect of which it was given; and (b) is not binding on the parties to the proceedings in which it is made.” Section 6 provides: “(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right. (2) Subsection (1) does not apply to an act if (a) as a result of one or more provisions of primary legislation, the authority could not have acted any differently; or (b) in the case of one or more provisions of ... primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions. ...” Section 10 provides: “(1) This section applies if (a) a provision of legislation has been declared under section 4 to be incompatible with a Convention right and, if an appeal lies – ( i ) all persons who may appeal have stated in writing that they do not intend to do so; or (ii) the time for bringing an appeal has expired and no appeal has been brought within that time; or (iii) an appeal brought within that time has been determined or abandoned; or (b) it appears to a Minister of the Crown or Her Majesty in Council that, having regard to a finding of the European Court of Human Rights made after the coming into force of this section in proceedings against the United Kingdom, a provision of legislation is incompatible with an obligation of the United Kingdom arising from the Convention. (2) If a Minister of the Crown considers that there are compelling reasons for proceeding under this section, he may by order make such amendments to the legislation as he considers necessary to remove the incompatibility.” 22. The Government submitted that the objective of giving the national courts the power under section 4 had been to provide a formal means for notifying the government and Parliament about a situation in which legislation was found not to comply with the Convention, and to provide a mechanism for speedily correcting the defect. Once a declaration had been made (or once the European Court of Human Rights had found a violation based on a provision of domestic law), there were two alternative avenues for putting right the problem: either primary legislation could be introduced in Parliament, or the minister concerned could exercise his summary power of amendment under section 10 of the Human Rights Act 1998. 23. When the Human Rights Bill passed through the House of Lords on 27 November 1997, the Lord Chancellor explained that: “ [W] e expect that the government and Parliament will in all cases almost certainly be prompted to change the law following a declaration of incompatibility.” One of the ministers with responsibility for the Human Rights Act explained to the House of Commons on 21 October 1998 that: “Our proposals [for remedial orders] safeguard parliamentary procedures and sovereignty, ensure proper supervision of our laws and ensure that we can begin to get the ability both to enforce human rights law and to create a human rights culture. They also ensure that we can do it in the context of not having to worry that if something is decided by the Strasbourg Court or by our courts that creates an incompatibility, we do not have a mechanism to deal with it in the quick and efficient way that may be necessary.” 24. According to statistics provided by the Government and last updated on 30 July 2007, since the Human Rights Act came into force on 2 October 2000 there had been twenty-four declarations of incompatibility. Of these, six had been overturned on appeal and three remained subject to appeal in whole or in part. Of the fifteen declarations which had become final, three related to provisions that had already been remedied by primary legislation at the time of the declaration; seven had been remedied by subsequent primary legislation; one had been remedied by a remedial order under section 10 of the Act; one was being remedied by primary legislation in the course of being implemented; one was the subject of public consultation; and two (relating to the same issue) would be the subject of remedial measures which the government intended to lay before Parliament in the autumn of 2007. In one case, A v. Secretary of State for the Home Department [2005] 2 AC 68, the House of Lords made a declaration of incompatibility concerning section 23 of the Anti-Terrorism, Crime and Security Act 2001, which gave the Secretary of State power to detain suspected international terrorists in certain circumstances. The government responded immediately by repealing the offending provision by section 16 of the Prevention of Terrorism Act 2005. III. RELEVANT COMPARATIVE LAW AND MATERIAL 25. While in common law systems there has traditionally been freedom of testamentary devolution, in civil law systems the order of succession is generally established by statute or code, with some particularly privileged categories of heirs, normally the spouse and close relatives, being granted automatic rights to a portion of the estate (the so-called reserved shares), which cannot generally be modified by the decedent ’ s will. The position of each heir depends therefore on the combined effect of family law and tax law. 26. From the information available to the Court, it would appear that some form of civil partnership, with varying effects on matters of inheritance, are available in sixteen member States, namely Andorra, Belgium, the Czech Republic, Denmark, Finland, France, Germany, Iceland, Luxembourg, the Netherlands, Norway, Slovenia, Spain, Sweden, Switzerland and the United Kingdom. Spouses and close relatives, including siblings, are granted statutory inheritance rights in virtually all member States. In a majority of member States, siblings are treated less favourably in terms of succession rights than the surviving spouse but more favourably than the surviving civil partner; and only a few member States grant the surviving civil partner inheritance rights equal to those of the surviving spouse. Inheritance tax schemes usually follow the order of succession, although in certain countries, such as France and Germany, the surviving spouse is granted a more favourable tax exemption than any other category of heir. THE LAW 27. The applicants complained under Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 that, when one of them died, the survivor would face a significant liability to inheritance tax, which would not be faced by the survivor of a marriage or a civil partnership. Article 1 of Protocol No. 1 provides: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” Article 14 of the Convention provides: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” I. THE GOVERNMENT ’ S PRELIMINARY OBJECTIONS 28. The Government contested the admissibility of the application on a number of grounds under Articles 34 and 35 § 1 of the Convention. Article 34 provides: “The Court may receive applications from any person ... claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. ... ” Article 35 § 1 states: “The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.” A. The applicants ’ victim status 1. The Chamber ’ s conclusions 29. The Chamber found, unanimously, that, given the applicants ’ advanced age and the very high probability that one would be liable to pay inheritance tax upon the death of the other, they could claim to be directly affected by the impugned law. 2. The parties ’ submissions ( a ) The Government 30. The Government submitted that the Chamber ’ s reasoning did not support its conclusion. Neither applicant had yet been required to pay inheritance tax and at least one of them would definitely never have to pay it, and furthermore, since it was not inevitable that one would predecease the other, it was a matter of speculation whether either would ever suffer any loss. The applicants could not, therefore, claim to be “victims” of any violation, and their complaint represented a challenge to the tax regime in abstracto, which the Court could not entertain. 31. The legal test for “victim status” was very clear from the case-law: the word “victim” denotes a person who is directly affected by the act or omission in issue (see, for example, Eckle v. Germany, 15 July 1982, § 66, Series A no. 51). The present case was on that ground distinguishable from Marckx v. Belgium ( 13 June 1979, Series A no. 31 ), where the applicants had been complaining about certain provisions of Belgian law that applied automatically to the illegitimate child and her mother, and Inze v. Austria ( 28 October 1987, Series A no. 126 ), where the complaint concerned rights of inheritance where the parent had already died. In contrast, the requirement to pay inheritance tax did not apply automatically. The applicants were not so affected by the risk of a future liability to tax as to bring them into a comparable position to the applicants in Campbell and Cosans v. the United Kingdom ( 25 February 1982, Series A no. 48 ), where the Court found that a threat of inhuman and degrading punishment could in itself breach Article 3 of the Convention, or Norris v. Ireland ( 26 October 1988, Series A no. 142 ), where the existence of criminal sanctions for homosexual acts must necessarily have affected the applicant ’ s daily conduct and private life. ( b ) The applicants 32. The applicants agreed with the Chamber ’ s unanimous finding that they could properly claim to be victims. It was virtually certain that one would predecease the other, and similarly certain that the value of the deceased ’ s estate would exceed the nil rate threshold for inheritance tax and that the survivor would face a significant liability to inheritance tax which would not be faced by the survivor of a marriage or civil partnership (see paragraph 15 above). Thus, as in Marckx (cited above) or Johnston and Others v. Ireland ( 18 December 1986, Series A no. 112 ), both of which concerned complaints about the effect of illegitimacy on succession rights under domestic law, the applicants ran a very high risk of a violation of their Convention rights. It was, moreover, clear from the Court ’ s case-law (see, for example, Campbell and Cosans, cited above ) that the “mere threat” of conduct prohibited by the Convention might constitute the person at threat a victim, provided the threat was sufficiently real and immediate. Here the threat was very real; even before either had died, the legislation had an impact on them, as it affected their choices about disposing of their property. They had “an awful fear” hanging over them that the house would have to be sold to pay the tax, and they should not have to wait until one of them died before being able to seek the protection of the Convention. 3. The Grand Chamber ’ s assessment 33. The Court notes that, in order to be able to lodge a petition in pursuance of Article 34, a person, non-governmental organisation or group of individuals must be able to claim “to be the victim of a violation ... of the rights set forth in the Convention ...”. In order to claim to be a victim of a violation, a person must be directly affected by the impugned measure (see Ireland v. the United Kingdom, 18 January 1978, §§ 239- 40, Series A, no. 25; Eckle, cited above; and Klass and Others v. Germany, 6 September 1978, § 33, Series A no. 28). The Convention does not, therefore, envisage the bringing of an actio popularis for the interpretation of the rights set out therein or permit individuals to complain about a provision of national law simply because they consider, without having been directly affected by it, that it may contravene the Convention ( see Norris, cited above, § 31). 34. It is, however, open to a person to contend that a law violates his rights, in the absence of an individual measure of implementation, if he is required either to modify his conduct or risk being prosecuted (see Norris, cited above, § 31, and Bowman v. the United Kingdom, 19 February 1998, Reports of Judgments and Decisions 1998-I) or if he is a member of a class of people who risk being directly affected by the legislation ( see Johnston and Others, cited above, § 42, and Open Door and Dublin Well Woman v. Ireland, 29 October 1992, Series A no. 246-A). Thus, in the Marckx case, cited above, the applicants, a single mother and her five-year old “illegitimate” daughter, were found to be directly affected by, and thus victims of, legislation which would, inter alia, limit the child ’ s right to inherit property from her mother upon the mother ’ s eventual death, since the law automatically applied to all children born out of wedlock. In contrast, in Willis v. the United Kingdom ( no. 36042/97, ECHR 2002-IV ), the risk to the applicant of being refused a widow ’ s pension on grounds of sex at a future date was found to be hypothetical, since it was not certain that the applicant would otherwise fulfil the statutory conditions for the payment of the benefit at the date when a woman in his position would become entitled. 35. In the present case, the Grand Chamber agrees with the Chamber that, given the applicants ’ age, the wills they have made and the value of the property each owns, the applicants have established that there is a real risk that, in the not too distant future, one of them will be required to pay substantial inheritance tax on the property inherited from her sister. In these circumstances, the applicants are directly affected by the legislation and can claim to be victims of the alleged discriminatory treatment. B. Domestic remedies 1. The Chamber ’ s conclusions 36. The Chamber ’ s findings as regards exhaustion of domestic remedies were as follows ( paragraphs 35-40): “The Court is very much aware of the subsidiary nature of its role and that the object and purpose underlying the Convention, as set out in Article 1 – that rights and freedoms should be secured by the Contracting State within its jurisdiction – would be undermined, along with its own capacity to function, if applicants were not encouraged to pursue the means at their disposal within the State to obtain available redress (see B. and L. [ v. the United Kingdom ( dec. ), no. 36536/02, 29 June 2004 ] ). The rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention thus obliges applicants to use first the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain, in practice as well as in theory, failing which they will lack the requisite accessibility and effectiveness ( see Akdivar and Others v. Turkey, 16 September 1996, §§ 65-67, Reports 1996-IV, and Aksoy v. Turkey, 18 December 1996, §§ 51-52, Reports 1996 ‑ VI). The Government argue that the remedy under the Human Rights Act allowing an applicant to seek a declaration from a domestic court that legislation is incompatible with the Convention is sufficiently certain and effective for the purposes of Article 35 § 1. Such a declaration creates a discretionary power in the relevant government minister to take steps to amend the offending provision, either by a remedial order or by introducing a bill in Parliament. The Court found in Hobbs [ v. the United Kingdom ( dec. ), no. 63684/00, 18 June 2002 ] that this remedy was not sufficiently effective, essentially for two reasons: first, because a declaration was not binding on the parties to the proceedings in which it was made; and, secondly, because a declaration provided the appropriate minister with a power, not a duty, to amend the offending legislation by order so as to make it compatible with the Convention. Moreover, the minister concerned could exercise that power only if he considered that there were ‘ compelling reasons ’ for doing so. The Court considers that the instant case is distinguishable from Hobbs, where the applicant had already suffered financial loss as a result of the discrimination about which he complained but could not have obtained monetary compensation through the grant of a declaration of incompatibility. It is closer to B. and L. v. the United Kingdom, where there had been no financial loss, although those applicants had already been prevented by the impugned legislation from marrying each other. In the present case, as in B. and L. v. the United Kingdom, it is arguable that, had a declaration of incompatibility been sought and made, the applicants might have been able to benefit from a future change in the law. However, it remains the case that there is no legal obligation on the minister to amend a legislative provision which has been found by a court to be incompatible with the Convention. The Court notes that, according to the information provided by the Government, by August 2006 such amendments had occurred in ten out of the thirteen cases where a declaration had been finally issued by the courts, and in the remaining three, reforms were pending or under consideration ... It is possible that at some future date evidence of a long-standing and established practice of ministers giving effect to the courts ’ declarations of incompatibility might be sufficient to persuade the Court of the effectiveness of the procedure. At the present time, however, there is insufficient material on which to base such a finding. The Court does not consider that these applicants could have been expected to have exhausted, before bringing their application to Strasbourg, a remedy which is dependent on the discretion of the executive and which the Court has previously found to be ineffective on that ground. It therefore rejects the Government ’ s second objection to admissibility.” 2. The parties ’ submissions ( a ) The Government 37. The Government referred to the Court ’ s case-law to the effect that it is incumbent on an applicant to pursue a domestic remedy if it is “effective and capable of providing redress for the complaint” ( see Hobbs v. the United Kingdom ( dec. ), no. 63684/00, 18 June 2002). In the present case, since neither applicant had suffered any liability for inheritance tax, the most that the Court could award, in the event that it found in favour of the applicants, would be a declaration that the Inheritance Tax Act represented a violation of their Convention rights. Assuming that the claim was well founded on the merits, this was also the relief that the High Court in the United Kingdom would have awarded under section 4 of the Human Rights Act. If a declaration by this Court would constitute just satisfaction for the purposes of Article 41 of the Convention, the Government submitted that a declaration of incompatibility by the High Court must necessarily be regarded as an available and effective domestic remedy for the purposes of Article 35. 38. The Government referred to the information set out in paragraph 24 above and emphasised that there was not a single case where it had refused to remedy a declaration of incompatibility. While as a matter of pure law it was true, as the Court had found in Hobbs, that such a declaration was not binding on the parties and gave rise to a power for the minister, rather than a duty, to amend the offending legislation, this was to ignore the practical reality that a declaration of incompatibility was highly likely to lead to legislative amendment. ( b ) The applicants 39. The applicants referred to the Commission ’ s case-law to the effect that the remedies an applicant is required to make use of must not only be effective but also independent of discretionary action by the authorities ( see for example, Montion v. France, no. 11192/84, Commission decision of 14 May 1987, Decisions and Reports (DR) 52, p. 2 32, and G. v. Belgium, no. 12604/86, Commission decision of 10 July 1991, DR 70, p. 1 31 ). They argued that a declaration of incompatibility could not be regarded as an effective remedy because the procedures to change the law could not be initiated by those who had obtained a declaration or enforced by any court or organ of State. The Court had accepted a similar argument in Hobbs and also in Dodds v. the United Kingdom ( ( dec. ), no. 59314/00, 8 April 2003 ), Walker v. the United Kingdom ( ( dec. ), no. 37212/02, 16 March 2004 ), Pearson v. the United Kingdom ( ( dec. ), no. 8374/03, 27 April 2004 ) and, lastly, B. and L. v. the United Kingdom ( ( dec. ), no. 36536/02, 29 June 2004 ), where the Government had made submissions almost identical to those in the present case. 3. The Grand Chamber ’ s assessment 40. The Grand Chamber notes that the Human Rights Act places no legal obligation on the executive or the legislature to amend the law following a declaration of incompatibility and that, primarily for this reason, the Court has held on a number of previous occasions that such a declaration cannot be regarded as an effective remedy within the meaning of Article 35 § 1 (see the decisions in Hobbs, Dodds, Walker, Pearson and B. and L. v. the United Kingdom, all cited above, and also Upton v. the United Kingdom ( dec. ), no. 29800/04, 11 April 2006). Moreover, in cases such as Hobbs, Dodds, Walker and Pearson, where the applicant claims to have suffered loss or damage as a result of the breach of his Convention rights, a declaration of incompatibility has been held not to provide an effective remedy because it is not binding on the parties to the proceedings in which it is made and cannot form the basis of an award of monetary compensation. 41. The Grand Chamber is prepared to accept the Government ’ s argument that the present case can be distinguished from Hobbs, given that neither applicant complains of having already suffered pecuniary loss as a result of the alleged violation of the Convention. It has carefully examined the material provided to it by the Government concerning legislative reform in response to the making of a declaration of incompatibility, and notes with satisfaction that in all the cases where declarations of incompatibility have to date become final, steps have been taken to amend the offending legislative provision (see paragraph 24 above). However, given that there have to date been a relatively small number of such declarations that have become final, it agrees with the Chamber that it would be premature to hold that the procedure under section 4 of the Human Rights Act provides an effective remedy to individuals complaining about domestic legislation. 42. Nonetheless, the Grand Chamber is mindful that the principle that an applicant must first make use of the remedies provided by the national legal system before applying to an international court is an important aspect of the machinery of protection established by the Convention (see Akdivar and Others v. Turkey, 16 September 1996, § 65, Reports 1996-IV). The European Court of Human Rights is intended to be subsidiary to the national systems safeguarding human rights ( ibid., §§ 65-66) and it is appropriate that the national courts should initially have the opportunity to determine questions of the compatibility of domestic law with the Convention and that, if an application is nonetheless subsequently brought to Strasbourg, the European Court should have the benefit of the views of the national courts, as being in direct and continuous contact with the forces of their countries. 43. The Grand Chamber agrees with the Chamber that it cannot be excluded that at some time in the future the practice of giving effect to the national courts ’ declarations of incompatibility by amendment of the legislation is so certain as to indicate that section 4 of the Human Rights Act is to be interpreted as imposing a binding obligation. In those circumstances, except where an effective remedy necessitated the award of damages in respect of past loss or damage caused by the alleged violation of the Convention, applicants would be required first to exhaust this remedy before making an application to the Court. 44. This is not yet the case, however, and the Grand Chamber therefore rejects the Government ’ s objection on grounds of non-exhaustion of domestic remedies. C. Conclusion 45. The Court accordingly rejects the Government ’ s preliminary objections. II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL No. 1 A. The Chamber ’ s conclusions 46. The Chamber rejected the Government ’ s argument, relying, inter alia, on the judgment in Marckx (cited above), that Article 1 of Protocol No. 1 was inapplicable since there was no right under the Article to acquire possessions. The Chamber noted that the applicants complained not, as in the Marckx case, that they would be prevented from acquiring property but that the survivor would be required to pay tax on existing property which they jointly owned, an outcome which the Chamber had held to be highly probable. Since the duty to pay tax on existing property fell within the scope of Article 1 of Protocol No. 1, Article 14 was applicable. 47. The Chamber left open the question whether the applicants could claim to be in an analogous position to a married or Civil Partnership Act couple and found that the difference in treatment was not inconsistent with Article 14 of the Convention, for the following reasons ( paragraphs 59-61): “In this regard, the Court recalls its finding in Shackell [ v. the United Kingdom ( dec. ), no. 45851/99, 27 April 2000] that the difference of treatment for the purposes of the grant of social security benefits, between an unmarried applicant who had a long-term relationship with the deceased, and a widow in the same situation, was justified, marriage remaining an institution that was widely accepted as conferring a particular status on those who entered it. The Court decided in Shackell, therefore, that the promotion of marriage by way of the grant of limited benefits for surviving spouses could not be said to exceed the margin of appreciation afforded to the respondent State. In the present case, it accepts the Government ’ s submission that the inheritance - tax exemption for married and civil partnership couples likewise pursues a legitimate aim, namely to promote stable, committed heterosexual and homosexual relationships by providing the survivor with a measure of financial security after the death of the spouse or partner. The Convention explicitly protects the right to marry in Article 12, and the Court has held on many occasions that sexual orientation is a concept covered by Article 14 and that differences based on sexual orientation require particularly serious reasons by way of justification (see, for example, Karner v. Austria, no. 40016/98, § 37, ECHR 2003-IX and the cases cited therein). The State cannot be criticised for pursuing, through its taxation system, policies designed to promote marriage; nor can it be criticised for making available the fiscal advantages attendant on marriage to committed homosexual couples. In assessing whether the means used are proportionate to the aim pursued, and in particular whether it is objectively and reasonably justifiable to deny cohabiting siblings the inheritance - tax exemption which is allowed to survivors of marriages and civil partnerships, the Court is mindful both of the legitimacy of the social policy aims underlying the exemption, and the wide margin of appreciation that applies in this field ... Any system of taxation, to be workable, has to use broad categorisations to distinguish between different groups of tax payers (see Lindsay [ v. the United Kingdom, no. 11089/84, Commission decision of 11 November 1986, Decisions and Reports 49, p. 181] ). The implementation of any such scheme must, inevitably, create marginal situations and individual cases of apparent hardship or injustice, and it is primarily for the State to decide how best to strike the balance between raising revenue and pursuing social objectives. The legislature could have granted the inheritance - tax concessions on a different basis: in particular, it could have abandoned the concept of marriage or civil partnership as the determinative factor and extended the concession to siblings or other family members who lived together, and/or based the concession on such criteria as the period of cohabitation, the closeness of the blood relationship, the age of the parties or the like. However, the central question under the Convention is not whether different criteria could have been chosen for the grant of an inheritance - tax exemption, but whether the scheme actually chosen by the legislature, to treat differently for tax purposes those who were married or who were parties to a civil partnership from other persons living together, even in a long-term settled relationship, exceeded any acceptable margin of appreciation. In the circumstances of the case, the Court finds that the United Kingdom cannot be said to have exceeded the wide margin of appreciation afforded to it and that the difference of treatment for the purposes of the grant of inheritance - tax exemptions was reasonably and objectively justified for the purposes of Article 14 of the Convention. There has accordingly been no violation of the Article, read in conjunction with Article 1 of Protocol No. 1, in the present case.” B. The parties ’ submissions 1. The Government 48. The Government emphasised that there was no right under Article 1 of Protocol No. 1 to acquire possessions; in the Court ’ s case-law on domestic inheritance laws, it had consistently held that, before the relevant death occurred, the presumptive heir had no property rights and that his or her hope of inheriting in the event of death could not therefore amount to a “possession” (see Marckx, cited above, § 50; Inze, cited above, § 38; and Mazurek v. France, no. 34406/9 7, §§ 42-43, ECHR 2000-II). Since each applicant was still alive and her complaint, as surviving sister, concerned the potential future impact of domestic law on their power to inherit, Article 1 of Protocol No. 1 did not apply, and nor therefore did Article 14. The complaint made by each sister as the prospective first-to-die was also outside the ambit of Article 1 of Protocol No. 1 because there was no restriction under domestic law on the applicants ’ ability to dispose of their property, only a potential liability to tax arising after death, when the deceased would no longer be in a position to enjoy her former possessions. 49. In the alternative, if the Court were to find that the complaint fell within the ambit of Article 1 of Protocol No. 1, the Government denied that domestic law gave rise to any discrimination contrary to Article 14. Firstly, the applicants could not claim to be in an analogous situation to a couple created by marriage or civil partnership. The very essence of their relationship was different, because a married or Civil Partnership Act couple chose to become connected by a formal relationship, recognised by law, with a number of legal consequences; whereas for sisters, the relationship was an accident of birth. Secondly, the relationship between siblings was indissoluble, whereas that between married couples and civil partners might be broken. Thirdly, a married couple and civil partners made a financial commitment by entering into a formal relationship recognised by law and, if separated, the court could divide their property and order financial provision to be made by one partner to the other. No such financial commitment arose by virtue of the relationship between siblings. The special legal status of parties to a marriage had been recognised by the Commission in Lindsay v. the United Kingdom ( no. 11089/84, Commission decision of 11 November 1986, DR 49, p. 181 ), and by the Court in Shackell v. the United Kingdom ( ( dec. ), no. 45851/99, 27 April 2000 ). 50. The Government accepted that, if the applicants could be described as in an analogous position to a couple, there was a difference in treatment as regards exemption from inheritance tax. However, this difference in treatment did not exceed the wide margin of appreciation enjoyed by the State, both in the field of taxation and when it came to financial measures designed to promote marriage (see Lindsay and Shackell, cited above ). The policy underlying the inheritance - tax concession given to married couples was to provide the survivor with a measure of financial security, and thus promote marriage. The purpose of the Civil Partnership Act was to provide same-sex couples with a formal mechanism for recognising and giving legal effect to their relationships, and the inheritance - tax concession for civil partners served the same legitimate aim as it did in relation to married couples. Given the development of society ’ s attitudes, the same arguments justified the promotion of stable, committed same-sex relationships. That objective would not be served by extending similar benefits to unmarried members of an existing family, such as siblings, whose relationship was already established by their consanguinity and recognised by law. The difference in treatment thus pursued a legitimate aim. 51. The difference in treatment was, moreover, proportionate, given that the applicants, as siblings, had not undertaken any of the burdens and obligations created by a legally recognised marriage or civil partnership. If the Government were to consider extending the inheritance - tax concession to siblings, there would be no obvious reason not to extend it also to other cohabiting family members. Such a change would have considerable financial implications, given that the annual income from inheritance tax was approximately 2.8 billion pounds sterling. 2. The applicants 52. The applicants argued that if, as they had previously contended, they could claim to be victims of discrimination, the fact that neither had yet died could not provide a separate and substantive defence. Unlike the applicants in Marckx, the present applicants were not complaining about a provision of the English law of inheritance and claim that the principle that the Convention does not guarantee the right to acquire possessions on intestacy or through voluntary disposition was irrelevant. In circumstances where it was effectively inevitable that there would be significant tax to pay by the surviving sister, the facts fell within the scope of Article 1 of Protocol No. 1, and Article 14 was thus also applicable. 53. The applicants could properly be regarded as being in a similar situation to a married or same-sex Civil Partnership Act couple. While it was true, as the Government had asserted, that many siblings were connected by nothing more than their common parentage, this was far from the case with the present applicants, who had chosen to live together in a loving, committed and stable relationship for several decades, sharing their only home, to the exclusion of other partners. Their actions in so doing were just as much an expression of their respective self-determination and personal development as would have been the case had they been joined by marriage or a civil partnership. The powers of the domestic courts to make property orders upon the breakdown of a marriage or civil partnership did not entail that the applicants were not in an analogous situation to such couples as regards inheritance tax. Moreover, the very reason that the applicants were not subject by law to the same corpus of legal rights and obligations as other couples was that they were prevented, on grounds of consanguinity, from entering into a civil partnership. They had not raised a general complaint about their preclusion from entering into a civil partnership, because their concern was focused upon inheritance - tax discrimination and they would have entered into a civil partnership had that route been open to them. It was circular for the Government to hold against the applicants the very fact that they cannot enter into a civil partnership. 54. Given that, as the Government asserted, the purpose of the inheritance - tax exemption for married and civil partnership couples was the promotion of stable and committed relationships, the denial of an exemption to cohabiting adult siblings served no legitimate aim. The mere fact of being sisters did not entail a stable, committed relationship, and only a small minority of adult siblings were likely to share the type of relationship enjoyed by the applicants, involving prolonged mutual support, commitment and cohabitation. 55. The applicants agreed with the Government that there was no obvious reason why, if the exception were granted to siblings, it should not also be extended to other family members who cohabit, but argued that this did not support a conclusion that the difference in treatment bore any relationship of proportionality to any legitimate aim. Such an exemption would, in fact, serve the policy interest invoked by the Government, namely the promotion of stable, committed family relationships among adults. While the applicants accepted that the Court had no jurisdiction to dictate to the Government how best to remedy the discrimination, the amendment to the Civil Partnership Bill passed by the House of Lords (see paragraph 19 above) showed that it would be possible to construct a statutory scheme whereby two siblings or other close relations who had cohabited for a fixed number of years and chosen not to enter into a marriage or civil partnership could obtain certain fiscal rights or advantages. The Government ’ s reliance on the margin of appreciation was misplaced in the light of the recognition given to the injustice faced by those in the applicants ’ position when the Civil Partnership Act was passing through Parliament (ibid.). The applicants pointed out that the Government had been unable to provide an estimate of the loss of revenue which would flow from an inheritance - tax exemption along the lines proposed in the House of Lords. They could not estimate the cost either, but pointed out that the lost revenue would have to be offset by the potential gains, for example, those flowing from an increased tendency, encouraged by the exemption, of close relations to care for disabled or elderly relatives, thus avoiding the need for State-funded care. C. The third parties ’ submissions 1. The Government of Belgium 56. According to the Belgian Government, a State was entitled to pursue, through its taxation system, policies designed to promote marriage and to make available the fiscal advantages attendant on marriage to committed homosexual couples. Such policies pursued the common goal of the protection of the form of family life which, in the view of national legislatures, provided the best prospect of stability. 2. The Government of Ireland 57. The Irish Government submitted that the applicants had failed to establish discrimination contrary to Article 14, since their entire complaint hinged upon the fundamentally erroneous assumption that they were in an analogous position to a married couple and/or a Civil Partnership Act couple. The applicants ’ submissions failed to advert to the significant legal obligations inherent in marriage/civil partnership. There was no single, homogeneous comparator between the applicants and the above types of couple; indeed, it was clear from the applicants ’ arguments that their position was analogous, not to married or Civil Partnership Act couples, but rather to any persons in an established, mutually supportive, cohabiting relationship. It would be truly extraordinary if the enactment of legislation conferring rights upon same-sex couples who chose to register their relationship could have the effect of requiring the State to extend the entitlements thereby conferred to a potentially infinite class of persons in cohabiting relationships. D. The Grand Chamber ’ s assessment 58. The Grand Chamber notes that Article 14 complements the other substantive provisions of the Convention and the Protocols thereto. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. The application of Article 14 does not necessarily presuppose the violation of one of the substantive rights guaranteed by the Convention. It is necessary but it is also sufficient for the facts of the case to fall “within the ambit” of one or more of the Convention Articles (see Stec and Others v. the United Kingdom ( dec. ) [GC], nos. 65731/01 and 65900/01, § 39, ECHR 2005 -X ). 59. Taxation is in principle an interference with the right guaranteed by the first paragraph of Article 1 of Protocol No. 1, since it deprives the person concerned of a possession, namely the amount of money which must be paid. While the interference is generally justified under the second paragraph of this Article, which expressly provides for an exception as regards the payment of taxes or other contributions, the issue is nonetheless within the Court ’ s control, since the correct application of Article 1 of Protocol No. 1 is subject to its supervision (see, for example, Orion- Břeclav, S. R. O. v. the Czech Republic ( dec. ), no. 43783/98, 13 January 2004). Since the applicants ’ complaint concerns the requirement for the survivor to pay tax on property inherited from the first to die, the Grand Chamber considers that the complaint falls within the scope of Article 1 of Protocol No. 1 and that Article 14 is thus applicable. 60. The Court has established in its case-law that in order for an issue to arise under Article 14 there must be a difference in the treatment of persons in relevantly similar situations ( see D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 175, ECHR 2007 -IV ). Such a difference of treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The Contracting State enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment, and this margin is usually wide when it comes to general measures of economic or social strategy ( see Stec and Others v. the United Kingdom [GC], nos. 65731/01 and 65900/01, §§ 51-52, ECHR 2006 - VI ). 61. The applicants claim to be in a relevantly similar or analogous position to cohabiting married and Civil Partnership Act couples for the purposes of inheritance tax. The Government, however, argue that there is no true analogy because the applicants are connected by birth rather than by a decision to enter into a formal relationship recognised by law. 62. The Grand Chamber commences by remarking that the relationship between siblings is qualitatively of a different nature to that between married couples and homosexual civil partners under the United Kingdom ’ s Civil Partnership Act. The very essence of the connection between siblings is consanguinity, whereas one of the defining characteristics of a marriage or Civil Partnership Act union is that it is forbidden to close family members (see paragraph 17 above and, generally, B. and L. v. the United Kingdom, cited above). The fact that the applicants have chosen to live together all their adult lives, as do many married and Civil Partnership Act couples, does not alter this essential difference between the two types of relationship. 63. Moreover, the Grand Chamber notes that it has already held that marriage confers a special status on those who enter into it. The exercise of the right to marry is protected by Article 12 of the Convention and gives rise to social, personal and legal consequences ( see B. and L. v. the United Kingdom, cited above, § 34). In Shackell (cited above), the Court found that the situations of married and unmarried heterosexual cohabiting couples were not analogous for the purposes of survivors ’ benefits, since “ marriage remains an institution which is widely accepted as conferring a particular status on those who enter it ”. The Grand Chamber considers that this view still holds true. 64. Since the coming into force of the Civil Partnership Act in the United Kingdom, a homosexual couple also has the choice to enter into a legal relationship designed by Parliament to correspond as far as possible to marriage (see paragraphs 16-18 above). 65. As with marriage, the Grand Chamber considers that the legal consequences of civil partnership under the 2004 Act, which couples expressly and deliberately decide to incur, set these types of relationship apart from other forms of cohabitation. Rather than the length or the supportive nature of the relationship, what is determinative is the existence of a public undertaking, carrying with it a body of rights and obligations of a contractual nature. Just as there can be no analogy between married and Civil Partnership Act couples, on the one hand, and heterosexual or homosexual couples who choose to live together but not to become husband and wife or civil partners, on the other hand (see Shackell, cited above), the absence of such a legally binding agreement between the applicants renders their relationship of cohabitation, despite its long duration, fundamentally different to that of a married or civil partnership couple. This view is unaffected by the fact that, as noted in paragraph 26 above, member States have adopted a variety of different rules of succession as between survivors of a marriage, civil partnership and those in a close family relationship and have similarly adopted different policies as regards the grant of inheritance - tax exemptions to the various categories of survivor; States, in principle, remaining free to devise different rules in the field of taxation policy. 66. In conclusion, therefore, the Grand Chamber considers that the applicants, as cohabiting sisters, cannot be compared for the purposes of Article 14 to a married or Civil Partnership Act couple. It follows that there has been no discrimination and, therefore, no violation of Article 14 taken in conjunction with Article 1 of Protocol No. 1. | The Court held that there had been no violation of Article 14 (prohibition of discrimination) of the Convention in conjunction with Article 1 (protection of property) of Protocol No. 1 to the Convention, finding that the applicants, as co-habiting sisters, could not be compared for the purposes of Article 14 to a married or Civil Partnership Act couple. The Court observed in particular that, just as there can be no analogy between married and Civil Partnership Act couples, on the one hand, and heterosexual or homosexual couples who choose to live together but not to become husband and wife or civil partners, on the other hand, the absence of such a legally binding agreement between the applicants rendered their relationship of cohabitation, despite its long duration, fundamentally different to that of a married or civil partnership couple. This view was unaffected by the fact that member States had adopted a variety of different rules of succession as between survivors of a marriage, civil partnership and those in a close family relationship and had similarly adopted different policies as regards the grant of inheritance-tax exemptions to the various categories of survivor; States, in principle, remaining free to devise different rules in the field of taxation policy. |
975 | Mobile telephone | RELEVANT LEGAL FRAMEWORK AND PRACTICE Domestic lawAct CCXXXVIII of 2013 on Initiating Referenda, the European Citizens’ Initiative and the Referendum Procedure Act CCXXXVIII of 2013 on Initiating Referenda, the European Citizens’ Initiative and the Referendum Procedure Act CCXXXVIII of 2013 on Initiating Referenda, the European Citizens’ Initiative and the Referendum Procedure 31. The relevant provisions of this Act provide as follows: Chapter I General provisions Section 1 “(1) The general provisions of Act XXXVI of 2013 on Electoral Procedure ... shall apply – with the differences included in this Act – to the procedures falling within the scope of this Act. (2) The National Election Commission may issue guidelines for the electoral bodies in order to ensure a unified interpretation of the legal provisions relating to the procedures regulated by this Act.” Act XXXVI of 2013 on Electoral Procedure 32. The relevant provisions of this Act read as follows: The basic principles of electoral procedure Section 2 “(1) The following principles shall prevail in the application of the rules of electoral procedure: (a) the protection of the fairness of the election; (b) voluntary participation in the election procedure; (c) equal opportunities for candidates and nominating organisations; (d) support for voters with a disability in exercising their right to vote; (e) the exercise of rights in accordance with their purpose and in good faith; (f) the publicity of the electoral procedure. ...” Guidelines Section 51 “(1) The National Election Commission may issue guidelines to electoral bodies with a view to ensuring the uniform interpretation of legislation relating to elections. (2) The guidelines shall not be legally binding; they shall serve exclusively as guidance, and no appeal shall lie against them. (3) The guidelines shall be published on the official website of the elections.” Campaign period and materials Section 139 “The election campaign period shall last from the fiftieth day before voting until the end of voting on polling day.” Section 140 “Campaign materials shall include all materials which are capable of influencing or which attempt to influence voters’ choices, including especially: (a) posters; (b) direct contact by the nominating organisation or the candidate; (c) political advertisements; (d) election rallies.” Section 141 “The following shall constitute campaigning activities: the use of campaign materials in the campaign period, and any other activity during the campaign period aimed at influencing or attempting to influence voters’ choices.” Section 142 “The following shall not be considered election campaigning: the activities of electoral bodies, and personal communication between citizens as private persons, regardless of its content and form.” Section 143 “On election day no election campaign activities may be pursued in public areas within 150 metres of the entrance to the building designated as a polling station.” Decision on complaints Section 218 “(1) The election commission shall adjudicate complaints based on the available information. (2) If the election commission upholds a complaint, it shall (a) establish the fact of unlawfulness; (b) order the termination of the unlawful conduct; (c) set aside the election procedure or the part thereof affected by the unlawful conduct and order a new procedure; (d) have the power to issue a fine in cases of violations of the rules of election campaigns and of the obligations described in sections 124(2) and 155.” Constitutional Court Act 33. The Constitutional Court Act (Act CLI of 2011) provides, in so far as relevant, as follows: Section 26 “(1) Under Article 24 § 2 (c) of the Fundamental Law an individual or organisation involved in a particular case may lodge a constitutional complaint with the Constitutional Court where, owing to the application of a piece of legislation in the court proceedings conducted in the particular case, allegedly contrary to the Fundamental Law (a) their rights enshrined in the Fundamental Law have been violated, and (b) they have exhausted the available legal remedies or no remedies are available. (2) By way of an exception to subsection (1), Constitutional Court proceedings may also be initiated under Article 24 § 2 (c) ... of the Fundamental Law, where (a) the grievance has occurred directly, without a court ruling, as a result of the application or the entry into effect of a provision of the law [allegedly] contrary to the Fundamental Law, and (b) no remedy is available for redressing the injury, or the complainant has already exhausted the available remedies.” Section 27 “An individual or organisation involved in a particular case may file a constitutional complaint with the Constitutional Court against a court ruling allegedly contrary to the Fundamental Law under Article 24 § 2 (d) of the Fundamental Law, where the ruling given on the merits of the case, or another ruling closing the court proceedings, (a) violate the complainant’s rights enshrined in the Fundamental Law, and where (b) the complainant has already exhausted the remedies or no remedies are available to him or her. ...” Section 29 “The Constitutional Court shall admit the constitutional complaint if a conflict with the Fundamental Law significantly affects the judicial decision, or if the case raises constitutional-law issues of fundamental importance. ...” Section 56 “(1) The Constitutional Court shall decide on the admission of a constitutional complaint sitting as a committee as determined in its Rules of Procedure. (2) The committee shall examine, within its margin of appreciation, the content-related requirements for the admissibility of a constitutional complaint – in particular the requirement of being affected, for the purposes of sections 26 to 27, the requirement of exhaustion of legal remedies and the conditions specified in sections 29 to 31. (3) Where a complaint is not admitted, the committee shall give a decision containing a short summary of the reasons for rejection. (4) Constitutional complaints that have been admitted shall be submitted by the rapporteur for examination on the merits to the standing committee referred to in the Rules of Procedure of the Constitutional Court, which shall adjudicate the case.” domestic practiceDecision of the Constitutional Court no. 18/2008 (III.12.) AB Decision of the Constitutional Court no. 18/2008 (III.12.) AB Decision of the Constitutional Court no. 18/2008 (III.12.) AB 34. The case concerned the refusal of the National Election Commission to approve a question for referendum on the grounds that the petitioner had already presented, but subsequently withdrawn, the same referendum initiative. The Constitutional Court held, in so far as relevant, as follows: “... The election principles, including the obligation to exercise rights in accordance with their purpose, also flow from the State’s obligation to respect and protect fundamental rights ( intézményvédelmi kötelezettség ). As the Constitutional Court has explained, under Articles 2 and 70 of the Constitution the State has an obligation to secure the right to initiate and support referendums. This constitutional obligation is not conditional on necessity and proportionality, but on the realisation of the purpose of the right in question. ... Besides the obligation to respect and protect fundamental rights, the enforcement of the election principles also serves the interests of legal certainty, originating from the principle of the rule of law under Article 2 § 1 of the Constitution. In its decision no. 32/2001 (VII.11) the Constitutional Court interpreted the election principles as guarantees for the rule of law ... ... The principle of the exercise of rights in accordance with their purpose has been developed by both the legal literature and the case-law relating to the prohibition of the abuse of rights in civil law. The requirement to exercise rights in accordance with their purpose is derived from the civil-law regulations incorporating the statutory prohibition of abuse of rights, and permeates the entire legal system. It means that entitled persons may avail themselves of legal institutions only in a manner which is in compliance with the purpose and content of those institutions. Only when exercised in that way do rights enjoy statutory protection and recognition corresponding to the true content – and not only the formal conditions – of the entitlement. Section 2(2) of Act no. IV of 1959 on the Civil Code provides that ‘the law shall ensure that everybody can exercise his or her right in compliance with the societal purpose of the right’. ... On the basis of the legislative provisions cited above and the examples provided therein, it can be established that the legislature does not define the criteria for determining what constitutes an exercise of rights not in accordance with their purpose or an abuse of rights, but leaves it to the application of the law to decide whether in the given circumstances the person has exercised his or her rights in accordance with their purpose. The examples which are provided of an exercise of rights not in accordance with their purpose and of an abuse of rights imply that the exercise of a right not in accordance with its purpose can be established if it entails negative consequences (for instance, the restriction or infringement of the rights of others). ... The Electoral Procedure Act is one of the legislative instruments which incorporate the principle of the exercise of rights in accordance with their purpose, by stipulating that everyone participating in the electoral process should respect the principles of section 3, including the principles of bona fide exercise of rights and the exercise of rights in accordance with their purpose. The latter is a basic principle of the electoral procedure under the Electoral Procedure Act. Given that, under section 2, the rules of the Electoral Procedure Act are applicable to national referendums, the basic principles governing elections are also applicable to referendums. The basic principles governing elections are applicable throughout the whole electoral process and to all actors in the process ... The initiators of national referendums, the signatories of the initiative, those seeking redress in the procedure, voters, electoral bodies, and other bodies with the power to decide on legal remedies, are entitled to exercise their rights in accordance with the purpose of that right. ... The Electoral Procedure Act, in contrast to other legislative provisions, does not establish any criteria for determining which situation constitutes a breach of the requirement to exercise rights in accordance with their purpose; it does not even give any examples of when the exercise of a right in a way which does not correspond to its true content constitutes an abuse of a right or an exercise of rights not in accordance with their purpose. The Electoral Procedure Act leaves this question up to the courts. It is not possible to establish generally applicable criteria for the exercise of rights not in accordance with their purpose. The NEC, and the Constitutional Court acting as a forum for redress, can conclude, on the basis of the examination of all the circumstances of a given case, which conduct on the part of voters constitutes an exercise of rights not in accordance with their purpose. The examination of such an exercise of rights is not alien to the practice of the NEC. The NEC has issued a number of decisions in which it has established the unlawfulness of a certain kind of conduct based on a breach of the principle of the exercise of rights in accordance with their purpose. ... The practice of the Constitutional Court also shows that the court has based its decisions reviewing the decisions of the NEC on the general principles of the electoral procedure, including the exercise of rights in accordance with their purpose. ...” Decision of the Constitutional Court no. 3096/2014 (IV.11) AB 35. The case concerned an article that had appeared in a local newspaper of one of the districts of Budapest, published by a company owned by the local municipality. In the issue of 13 March 2014, preceding the elections, an article appeared with the following title: “The socialist representative voted against Zugló [the district in question] 90 times”. The newspaper published a separate article describing a different representative in a positive tone. The Constitutional Court held, in so far as relevant, as follows: “... According to the case-law of the Constitutional Court, the limits of press freedom are different depending on the forum of mass communication. The Constitutional Court held that the permissible restrictions on the broadcast media (television and radio) were broader, firstly because of the lack of available frequencies and secondly because of their special impact on society and public opinion. The decision of the Kúria finding that an editor’s freedom could be restricted on the basis of the general principles of the Electoral Procedure Act was connected to the obligation to provide objective information. In its decision no. 1/2007 (I.18) the Constitutional Court established that the requirement to provide balanced, unbiased and objective information could constitute a restriction on the editorial freedom of the broadcast media, but that these restrictions were relevant only for the specific characteristics of the broadcast media and were not applicable to the printed media. As regards the printed media, the starting-point of the Constitutional Court has always been the unlimited freedom of founding a newspaper; accordingly, the power of the media to influence cannot serve as a ground for restriction. In this sense the printed media cannot be penalised because of the nature and quality of the information they provide. Under certain circumstances, printed media financed by public money and by public institutions constitute exceptions to the above rule. According to the preamble to Act no. CLXXXXIX of 2011 on local government, municipalities are the community of local citizens, they represent self-government and are part of the unity of State administration. Therefore, because of their exercise of public power and use of public money, they play a different role in providing information to the members of society. Certain obligations can be imposed on this type of printed media. It follows from the decision of the Kúria that the editorial practices of municipal newspapers financed by public money may be restricted by the requirements of the Electoral Procedure Act during a campaign period. In the present case the Constitutional Court is called on to examine the compliance of this statement of principle with freedom of opinion and editorial freedom, in the light of the right to vote. Electoral procedure and the exercise of the right to vote are often comprised of individual rights (for instance, the right to be registered on the electoral roll, and passive voting rights). On other occasions they are related to the public interest in free and democratic elections. According to Article 2 § 1 of the Fundamental Law, Members of Parliament should be elected in accordance with legislation adopted by an absolute majority. The Electoral Procedure Act is one of the pieces of legislation regulating voting. It regulates electoral campaigning in a separate chapter, within which a separate title deals with the role of the media in campaigns, laying down rules for media service providers, the printed media and cinemas. According to the practice of the Kúria, the Electoral Procedure Act prevails in matters concerning electoral procedure, and all other legislation needs to be interpreted in compliance with that Act. In its leading decision no. KvK.II.37.307/2014/3 the Kúria established as a general principle that in electoral legal relations, only the provisions of the Electoral Procedure Act are applicable; other types of rules can be applied only if the Electoral Procedure Act so provides. During the campaign period, providing information to voters is even more important than at other times. The principle of the democratic rule of law requires that representative bodies be elected on the basis of democratic public opinion and well ‑ informed choices of the electorate. Free and democratic elections are not possible without the press acting upon its constitutional responsibility to provide accurate information. The Constitutional Court emphasises that this requires the State first and foremost to recognise editorial freedom and respect the prohibition of interference with media content. In certain circumstances, however, it can be constitutionally justified and necessary to lay down certain obligations concerning the manner in which information is provided. Besides media service providers, printed media financed by public money fall into this category. The requirements enshrined in the decision of the Kúria serve the same goal. The Constitutional Court notes that this interpretation is in line with the Committee of Ministers’ Recommendation adopted in 1999, which provides guidelines concerning media coverage of election campaigns, in accordance with Article 10 on freedom of expression of the European Convention on Human Rights and Fundamental Freedoms [Recommendation No. R (99) 15 of the Committee of Ministers to member States on measures concerning media coverage of election campaigns]. According to the recommendation the print media, in contrast to the broadcast media, are generally not bound by obligations concerning their editorial practice; however, print media outlets owned by public authorities constitute an exception to this rule. These media outlets should cover electoral campaigns in a fair, balanced and impartial manner, without discriminating against or supporting a specific political party or candidate. Opinion no. 190/2002 of the Venice Commission (Code of Good Practice in Electoral Matters: Guidelines and Explanatory Report – Adopted by the Venice Commission at its 52nd session (Venice, 18-19 October 2002), CDL-AD (2002) 23 rev)) provides as follows in point 2.3.: ‘... Equality of opportunity must be guaranteed for parties and candidates alike. This entails a neutral attitude by state authorities, in particular with regard to: i. the election campaign; ii. coverage by the media, in particular by the publicly owned media; iii. public funding of parties and campaigns. ...’ The constitutional duty of nominating organisations to contribute to the expression of public will and to articulate and convey social issues to citizens functions best if it is clear not only within the nominating organisation but also to the public. Each candidate is entitled to the same opportunities in election campaigning; hence, competition for votes should be open. This means that the State should be bound by the obligation to interpret laws in a way that ensures the equal treatment of all persons concerned in the electoral process. Although local municipalities have their general tasks during the campaign period, the specific rules on the exercise of voting rights prevail during this period. From a constitutional perspective, there are no grounds for criticising the fact that, during the election period, the court establishes special requirements for the editorial practice of media outlets owned by the State (including local municipalities) in connection with the exercise of voting rights, in the circumstances of the particular case and on the basis of section 2(1)(e) of the Electoral Procedure Act. ...” Kúria leading decision no. 2014.12.376 36. The case concerned the refusal to allow a television channel to air a campaign film in which two monkeys spoke in the voices of two election candidates. The Kúria’ s reasoning contained the following passage: “... Section 141 of the Electoral Procedure Act defines campaigning activity as the use of any campaign material during the campaign period and any other activity during the campaign period which aims at influencing or attempting to influence voters’ choices. According to section 140(c) of the Electoral Procedure Act, political advertisements are campaign materials, whose content is regulated in section 203(55) of the Act on media services and mass communication: ‘Political advertisement: any programme which appears or is published as an advertisement which promotes, or calls on others to support, a political party, political movement or the government, or which promotes their name, aims, activities, slogans, or symbols’. Thus, the Electoral Procedure Act, taken together with the provisions of the Mass Communication Act, does not prohibit negative campaigning. This means that it is permissible to enumerate, magnify and caricaturise the flaws in the opponent candidate’s capacities and programme while emphasising the campaigner’s own positive characteristics. This type of campaigning is nonetheless restricted by the basic principles of the Electoral Procedure Act According to section 2(1) of the Electoral Procedure Act, as relied on by the National Election Commission, the principle of the exercise of rights in accordance with their purpose should be taken into account in implementing the rules on the voting procedure. The requirement to exercise rights in accordance with their purpose is derived from the civil-law regulations enshrining the statutory prohibition of abuse of rights, and permeates the entire legal system. It means that entitled persons may avail themselves of legal institutions only in a manner which is in compliance with the purpose and content of those institutions. Only when exercised in that way do rights enjoy statutory protection and recognition corresponding to the true content – and not only the formal conditions – of the entitlement. The right to freedom of expression relied on by the complainant can be exercised in compliance with the right to human dignity enshrined in the Fundamental Law and in the Civil Code. It is from this perspective that this court should examine whether the complainant’s campaign film and its content violated the above-mentioned right. The Kúria shares the assessment of fundamental rights made by the National Election Commission. Portraying someone as an animal dehumanises the person concerned and is liable to violate human dignity. In Hungary, portraying someone as a monkey means connecting the negative characteristics of the animal with the candidate (negative campaigning) while presenting the campaigning candidate in his or her human form. In the Kúria ’s view this is an impermissible type of negative campaigning, against which the person concerned cannot argue or provide evidence. Therefore, it infringes the principle of the bona fide exercise of rights in accordance with their purpose.” Position statement of the State Election Commission no. 9/2006 37. In a position statement (no. 9/2006) of 30 March 2006 on the removal of ballot papers from the polling station, the State Election Commission (SEC), the legal predecessor to the National Election Commission, stated as follows: “... Section 70(1) of the Electoral Procedure Act [Act C of 1997] provides that ‘[t]he voter shall put the ballot paper into an envelope and place it in the ballot box in front of the polling station committee’. It follows from the grammatical and logical interpretation of this provision and from the principles governing the election procedure laid down in section 3(a) and (d) of the Electoral Procedure Act, namely the protection of the fairness of elections and the prevention of election fraud, as well as from the principles of good faith and the exercise of rights in accordance with their purpose, that the ballot paper is an authentic document the purpose of which is to reflect the electoral intentions of voters and to establish the election result. Consequently, it infringes the principle of exercise of rights in good faith and in accordance with their purpose if a voter treats the ballot paper as his or her own and removes it from the polling station. Removal of the ballot paper from the polling station may also be conducive to election fraud, the prevention of which furthers the interest of the public in maintaining the fairness of elections. The use of the ballot paper in a manner contrary to the purpose for which it was originally intended may also violate the constitutional requirement of the confidentiality of elections. According to the SEC’s position, the physical ballot paper does not constitute the property of the voter. In other words, the principle laid down in section 3(b) of the Electoral Procedure Act (voluntary participation in the vote) does not authorise a voter to remove the ballot paper from the polling station.” Guidelines of the National Election Commission no. 12/2014 38. Guidelines no. 12/2014 of the National Election Commission (NEC) on the removal of ballot papers from the polling station and the taking of photographs of ballot papers provide, in so far as relevant, as follows: “1. Section 182(1) of the Electoral Procedure Act provides that the voter must place the ballot paper in an envelope and drop it in the ballot box. As is clear from the grammatical and legal interpretation of this provision – taking into account also the protection of fair elections and the bona fide exercise of voting rights in accordance with their purpose – ballot papers are official documents whose purpose is to represent the choice of voters and to establish the results of voting. 2. Thus, if a voter treats a ballot paper as his or her own and takes it out of the polling station or takes a photograph of it before placing it in the envelope or dropping it in the ballot box, he or she infringes the principle of the bona fide exercise of voting rights in accordance with their purpose. Taking ballot papers out of the polling station, or taking photographs, videos, and so forth of them, can also result in electoral fraud, the prevention of which [furthers] the public interest in protecting the fairness of elections. 3. The use of ballot papers [in a manner] contrary to their purpose may also infringe the principle of secrecy of elections as enshrined in Hungary’s Fundamental Law. The secrecy of elections also encompasses the secrecy of ballot papers; thus, taking photographs of voting or of ballot papers is in breach of the principles of the Electoral Procedure Act. Voting secrecy serves not only the safe expression of voters’ will but also the realisation of the voting procedure in accordance with the rule of law and the principles of democracy. Thus, its importance goes beyond the conduct of individual voters. Obviously, voting secrecy does not create an obligation of confidentiality on the part of voters, but the obligation to exercise rights in accordance with their purpose means that voters should not abuse the fact that voting secrecy can be only partially achieved without their cooperation. 4. In the view of the National Election Commission neither the provisions of the Fundamental Law nor those of the Electoral Procedure Act mean that ballot papers constitute the property of voters; therefore, the latter may not treat ballot papers as their own [property] and may use them only for the purpose of voting. Voluntary participation in the voting procedure does not mean that a voter may take a ballot paper from the polling station. Reasoning In the Commission’s view ... official ballot papers do not constitute voters’ property ... Voters cannot freely dispose even of spoilt ballot papers. The National Election Commission therefore finds that the only conduct that complies with the principles of the bona fide exercise of voting rights in accordance with their purpose, and voting secrecy, as enshrined in Article 2 § 1 of the Fundamental Law ..., is if voters, while casting their vote, do not treat the ballot papers as their own but as a means to express their right to vote and to establish the outcome of the voting process. Thus, they cannot take the ballot paper out of the polling station and cannot take a photograph with a telecommunications, digital or any other device with the intention of showing it to another person. The purpose of these guidelines is to counteract electoral fraud (for example, through so-called ‘chain voting’) in the interests of protecting the fairness of elections.” COMPARATIVE-LAW MATERIALS 39. The documents available to the Court concerning the legislation of the Council of Europe member States, and in particular a survey of thirty ‑ four of them, indicate that all the States concerned recognise, at constitutional or statutory level, the right to secret voting. 40. The majority of member States do not specifically regulate the publication of information by voters on media channels about the way they cast their ballots. 41. Two member States (Albania and Iceland) have explicitly regulated the issue of revealing voting choices through the publication of photographs, by imposing a ban on such conduct. 42. In two of the member States surveyed (the Czech Republic and Finland), the freedom of voters to publish information on their own electoral decisions through media channels has been upheld at various levels. 43. Three member States (Portugal, Armenia and Estonia) impose general restrictions on the disclosure by voters, by any means, of information on how they cast their ballots. In addition, in Portugal, the National Electoral Commission has adopted a practice of barring voters from taking and publishing photographs of their ballot papers on Internet platforms. 44. The existing legislation in nine countries (Austria, Georgia, Germany, Lithuania, Moldova, North Macedonia, San Marino, Serbia and Turkey) bans photography, cameras and mobile telephones within polling stations. In Austria, the Constitutional Court ruled that the voluntary publication of information by voters, particularly via social media, concerning the way they had cast their ballot did not violate the principle of free suffrage, since this principle was designed only to protect voters from influence over individuals’ electoral decisions. 45. In three countries (Croatia, France and the United Kingdom) the electoral bodies have adopted instructions and recommendations discouraging voters from using mobile telephones in polling stations. COUNCIL OF EUROPE DOCUMENTS 46. Recommendation 1704 (2005) of the Parliamentary Assembly, entitled “Referendums: towards good practices in Europe”, adopted on 29 April 2005, provides in particular as follows: “... 2. The Parliamentary Assembly considers referendums as one of the instruments enabling citizens to participate in the political decision-making process; it also recognises the essential contribution of organised civil society in the framework of participatory democracy. ... 12. Confirming its previous positions, the Assembly highlights that direct popular participation in the decision-making process requires the electorate to be adequately informed about those matters to be decided upon, as well as about the democratic decision-making process in general. With these considerations in mind, the Council of Europe should reinforce its activities on media awareness and education for democratic citizenship, also in the context of the elaboration of good practices on referendums. ...” 47. On 13 and 14 October 2006, at its 68th plenary session, the European Commission for Democracy through Law (the Venice Commission) adopted the “Guidelines on the holding of referendums” which provide, in so far as relevant, as follows: “... 3.2. Freedom of voters to express their wishes and action to combat fraud a. Voting procedure ... ix. unused and invalid voting slips must never leave the polling station; ... xv. the state must punish any kind of electoral fraud. ... b. Freedom of voters to express their wishes also implies: i. that the executive must organise referendums provided for by the legislative system; this is particularly important when it is not subject to the executive’s initiative; ii. compliance with the procedural rules; in particular, referendums must be held within the time-limit prescribed by law; ... 4. Secret suffrage a. For the voter, secrecy of voting is not only a right but also a duty, non-compliance with which must be punishable by disqualification of any ballot paper whose content is disclosed. b. Voting must be individual. Family voting and any other form of control by one voter over the vote of another must be prohibited. c. The list of persons actually voting should not be published. d. The violation of secret suffrage should be sanctioned. ...” THE LAW THE GOVERNMENT’S PRELIMINARY OBJECTION 48. The Government objected that Magyar Kétfarkú Kutya Párt (“the MKKP”) had failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention in respect of its complaint under Article 10. The Chamber judgment 49. The Chamber observed that the MKKP’s constitutional complaint raised the issue whether the sanction imposed on it for operating the mobile application in question had infringed its right to freedom of expression, since that activity had fallen under Article IX § 1 of the Fundamental Law. In those circumstances the Chamber found that the MKKP had raised the essence of its complaint before the Constitutional Court and complied with the obligation to exhaust domestic remedies. In conclusion, the Chamber dismissed the Government’s objection. The parties’ submissionsThe Government The Government The Government 50. The Government objected before the Grand Chamber that the applicant had failed to exhaust domestic remedies in the form of the constitutional complaint provided for in section 26(2) of the Constitutional Court Act (“the CCA”), through which the MKKP could have argued before the Constitutional Court that the Kúria had applied legislation which was in contravention of the Fundamental Law. The Government further submitted that although the MKKP had lodged a complaint under section 27 of the CCA against the Kúria ’s decisions, and had thus formally exhausted that option, it had not established its direct interest in the case, which was a precondition of admissibility under domestic law. The MKKP 51. The MKKP did not comment on this issue. The Court’s assessment 52. The Court reiterates first of all that under Article 35 § 1 it may only deal with a matter after all domestic remedies have been exhausted. Applicants must have provided the domestic courts with the opportunity, in principle intended to be afforded to Contracting States, of preventing or putting right the violations alleged against them. That rule is based on the assumption that there is an effective remedy available in the domestic system in respect of the alleged breach. The only remedies which Article 35 § 1 requires to be exhausted are those that relate to the breach alleged and are capable of redressing the alleged violation. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness: it falls to the respondent State to establish that these conditions are satisfied (see, among many other authorities, McFarlane v. Ireland [GC], no. 31333/06, § 107, 10 September 2010; Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 69-77, 25 March 2014; and Parrillo v. Italy [GC], no. 46470/11, § 87, ECHR 2015). 53. In several cases the Court has considered that domestic remedies were exhausted for the purposes of Article 35 § 1 of the Convention despite the fact that the applicant’s constitutional complaint had been dismissed as inadmissible, as the substance of the complaint had been sufficiently raised before the Constitutional Court (see, inter alia, Gäfgen v. Germany [GC], no. 22978/05, § 144, ECHR 2010; see also Uhl v. Germany (dec.), no. 64387/01, 6 May 2004; Storck v. Germany (dec.), no. 61603/00, 26 October 2004; and Schwarzenberger v. Germany, no. 75737/01, § 31, 10 August 2006). In other cases, domestic remedies were considered not to have been exhausted, for instance when an appeal had not been admitted because of a procedural mistake by the applicant (see Jalloh v. Germany (dec.), no. 54810/00, 26 October 2004). 54. As regards the Government’s reliance on the legal avenue under section 27 of the CCA, the Court notes that it has not been disputed by the parties that this constitutional complaint represented an effective remedy in the circumstances of the present case. Rather, the Government contended that the MKKP had failed to submit its complaint in compliance with domestic law. In particular, the MKKP had not sufficiently substantiated in its constitutional complaint its direct interest in the case as required by section 27(a) of the CCA. 55. The Court observes that the MKKP complained before it that its right to freedom of expression had been violated owing to the domestic authorities’ prohibition of the mobile application it had put at voters’ disposal during the national referendum, and the resulting sanction. It raised this issue specifically before the Kúria, maintaining that calling on voters to use the application was an exercise of its right to freedom of expression and in addition encouraged voters to use the application for the exercise of their freedom of expression (see paragraphs 26-27 above). 56. The Court further notes that in the Constitutional Court proceedings, the MKKP gave a complete account of the proceedings before the National Election Commission (“NEC”) and the Kúria and alleged a violation of its right to freedom of expression as guaranteed by the Hungarian Fundamental Law as well as by Article 10 of the Convention. In particular, in addition to the explanation in its constitutional complaint that the mobile application had been developed with the aim of providing a possibility for voters to exercise their freedom of expression in the course of the referendum on a matter of public interest, it further argued that its own conduct in calling on voters to exercise their freedom of expression fell within the ambit of Article IX § 1 of the Fundamental Law, which dealt with freedom of expression. The MKKP thus specifically contended in the constitutional complaint that its own right to freedom of expression had been infringed, supplementing this assertion with arguments pointing to the disproportionality of the impugned measure (see paragraph 28 above). Under these circumstances, the Court finds that the applicant party raised in substance the complaint about the infringement of its right to freedom of expression before the Constitutional Court and thus provided the domestic courts with the opportunity to put right the alleged violation. 57. Nonetheless, the Constitutional Court declared the complaint inadmissible, concluding that the case concerned voters’ right to freedom of expression, for which the MKKP had merely provided a platform without itself expressing an opinion. The fact that, in the Constitutional Court’s interpretation, the rights invoked by the MKKP did not concern the applicant party’s freedom of expression does not prevent the Court from considering the available remedy to have been exhausted. 58. As regards the Government’s submissions concerning the constitutional complaint under section 26(2) of the CCA, the Court notes that this type of remedy is applicable solely in cases where the complainant’s rights have been violated by the application of an allegedly unconstitutional provision and in the absence of a judicial decision or a legal remedy to redress the alleged violation. A constitutional complaint under section 26(2) cannot serve as an effective remedy for situations where the violation resulted from an allegedly erroneous application or interpretation of a legal provision which, in terms of its content, is not unconstitutional. 59. The Court observes that at no point in the domestic proceedings or in the proceedings before the Court did the MKKP assert that its alleged grievance had flowed from an unconstitutional legal provision. Rather, its complaint concerned the infringement of its freedom of expression as a result of the individual decisions of the domestic authorities. This being so, the issue fell to be considered in the context of proceedings seeking a remedy against those decisions. Therefore, as noted above, the MKKP complained of the restriction of its campaigning activities by means of the appropriate remedies before the Kúria and the Constitutional Court. 60. As the MKKP’s complaint thus relates in essence to the allegedly erroneous interpretation and application of domestic law, and the Government have not specified in what manner the remedy based on section 26(2) of the CCA would have been effective in practice for the purposes of the present complaint, the Court considers that the MKKP was not required to avail itself of that remedy. 61. Noting that the rule on exhaustion of domestic remedies concerns only remedies that relate to the breaches alleged (see Ivinović v. Croatia, no. 13006/13, § 28, 18 September 2014), the Court finds that, by using the only available domestic remedy relating to its complaint, the applicant exhausted domestic remedies as required by Article 35 § 1 of the Convention. 62. The Government’s objection of non-exhaustion of domestic remedies must therefore be dismissed. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 63. The MKKP complained that the decisions prohibiting and penalising the operation of a mobile application allowing voters to publish, anonymously, photographs of their ballot papers had violated its right to freedom of expression as provided for by Article 10 of the Convention. That Article reads as follows: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” 64. The Government contested that argument. The Chamber judgment 65. The Chamber noted that the MKKP had been penalised for providing a means of transmission enabling others to impart and receive information. It considered that providing a forum for others to express their opinions in the form of posting ballot photographs constituted conduct in the exercise of the MKKP’s right to freedom of expression. Consequently the sanction imposed on it had interfered with that right. 66. The Chamber did not consider it necessary to examine whether the interference was prescribed by law, since the measure in question was in breach of Article 10 for other reasons. It found that the Government had failed to demonstrate what interest under Article 10 § 2 of the Convention the ban had served. As to the asserted interests of the secrecy and fairness of voting, the Chamber agreed with the Kúria that nothing in the circumstances of the present case provided any support for the view that the anonymous publication of spoiled ballots had any impact on either. Concerning the interest of the “exercise of rights in accordance with their purpose” enshrined in section 2(1)(e) of the Electoral Procedure Act and relied on by the domestic authorities and the Government, the Chamber was of the view that the principle, although a ground for restrictions under domestic law, could not be linked to any of the aims under Article 10 of the Convention. Therefore, the interference could not be considered to pursue a legitimate aim within the meaning of Article 10 § 2 of the Convention. The Chamber held, unanimously, that there had been a violation of Article 10 of the Convention. The parties’ submissions to the Grand ChamberThe MKKP The MKKP The MKKP 67. The MKKP argued that its right to freedom of expression had been interfered with, in breach of Article 10 of the Convention. In support of this claim it submitted, firstly, that the mobile application that it had made available was a medium for disseminating political opinions on a topic of major importance and was therefore protected by Article 10. Relying on the decisions of the NEC and the Kúria, it also contended that the mobile application itself, named “Cast an invalid ballot”, had conveyed a political opinion deserving the protection of Article 10 of the Convention, as it had encouraged voters to cast an invalid ballot and had thus been capable of influencing them. The MKKP also pointed to its role as a political party in contributing to the functioning of democracy, and to the fact that the mobile application had contributed to the electorate’s knowledge of its political views, since it had been widely reported on in the media. 68. Referring to the cases of Társaság a Szabadságjogokért v. Hungary (no. 37374/05, 14 April 2009) and Magyar Helsinki Bizottság v. Hungary ([GC], no. 18030/11, 8 November 2016), the applicant party stressed the importance of the collection of information on matters of public concern by protagonists playing the role of a public watchdog, and argued that the mobile application had been aimed at monitoring the fairness of the referendum through the collection and sharing of anonymous data. 69. As to the legal basis of the interference, the MKKP averred that there was no provision of Hungarian law or any decision by an election commission or a court that prohibited the taking of ballot photographs. It argued that the Guidelines issued by the NEC could not be considered as “law” for the purposes of Article 10 § 2, since they were non-binding in nature. Furthermore, the provision of the Electoral Procedure Act concerning the principle of the exercise of rights in accordance with their purpose could not serve as a legal basis for the restriction of freedom of expression either. The applicant party insisted that, according to the case ‑ law of the Hungarian courts, a violation of the principle was to be found where there was clearly abusive conduct entailing a negative consequence (for instance, the limitation or infringement of the rights of others) under the pretext of formal compliance with the law. It pointed to the Constitutional Court’s practice of finding that in an electoral context the principle could only be relied on to restrict freedom of expression if it served the protection of the rights of others, that is, the reputation of candidates and political parties. Moreover, according to the MKKP, voting secrecy was a waivable right and not an obligation under Hungarian law. 70. With regard to the aim of the interference, the MKKP did not dispute that, in principle, the protection of the fairness of elections and voting secrecy could be regarded as legitimate aims justifying the restriction of freedom of expression. However, in the light of the Kúria ’s findings that neither of these aims had been at stake in the circumstances of the present case, the MKKP questioned whether they could be considered as “legitimate aims” pursued by the restriction on the mobile application. Furthermore, the MKKP argued that the purpose of the ballot paper and the principle of the exercise of rights in accordance with their purpose could not be linked to any of the reasons listed in Article 10 § 2. 71. Accepting that States enjoyed a wide margin of appreciation when regulating elections, the MKKP argued that this did not extend to freedom of expression; the protection of rights under Article 10 could not be diminished by reference to the right to free elections. 72. In support of the argument that the interference had not been necessary in a democratic society, the MKKP pointed to the fact that the secrecy of the vote was a right but not an obligation under Hungarian law, and that in any event, since the published ballot photographs technically could not be linked to the individual voters, their posting had not infringed the secrecy of the ballot. 73. On the other hand, the MKKP emphasised the relevance of its conduct, submitting that the mobile application had been developed for a highly controversial, “unacceptable” and “unreasonable” referendum. It explained that the vote had been preceded by intense government campaigning to which it had replied on billboards using absurd humour. Most of the opposition parties had emphasised the manipulative and unintelligible nature of the referendum and called for a boycott, while others, such as itself, had encouraged voters to participate but to cast an invalid ballot. 74. The MKKP further stressed that its conduct had contributed to the democratic process, since in the age of the information society, social media had become an important tool of public discourse. Furthermore, sharing the act of casting a vote, besides being an event of contemporary life, was an expression of political speech and a conscious activity of citizens. The applicant party emphasised that posting ballot photographs via the mobile application reinforced democracy as it encouraged others to take part in the voting process. It was also of the view that by providing people with an anonymous forum for doing so, it had made it possible to avoid the possible risk of abuse inherent in other forums such as social media. 75. Finally, the MKKP contended that, as was apparent from the Kúria ’s decisions, the domestic authorities had not carried out a proper balancing exercise between the protection of the principle of the exercise of rights in accordance with their purpose, on the one hand, and freedom to receive and impart information, on the other. Had such a balancing exercise been carried out, it would have been obvious to the domestic authorities that neither the fairness nor the secrecy of the vote had been jeopardised. The Government 76. The Government did not contest that the MKKP’s arguments before the Court disclosed interference with its freedom of expression. 77. As to the legal basis of the interference, the Government maintained that the taking of ballot photographs was contrary to section 2(1)(e) of the Electoral Procedure Act, which required rights to be exercised in accordance with their purpose. This notion had been interpreted by the NEC in its Guidelines no. 12/2014, applicable in election proceedings and referendums, which had specified that, regard being had to the new technical developments, voters could not take ballot papers outside the polling station, even in virtual form, by recording them in any way. Therefore, voters could not record ballot papers. This interpretation of the law had been both accessible and foreseeable to the MKKP. 78. Turning to the examination of the legitimate aims pursued by the disputed restriction, the Government considered that the measure complained of had been necessary in a democratic society to protect the public interest in ensuring the orderly conduct of the voting procedure (including campaigning) and the “normal” use of ballot papers. They contended that these aims fell within the ambit of “the protection of the rights of others”, including the right to the secrecy of the vote, a fair electoral process and the proper functioning of the democratic institutions. The aims in question protected the free expression of voters’ political opinions by shielding voters from any coercion. 79. As to the principle of the “exercise of rights in accordance with their purpose” laid down in section 2(1)(e) of the Electoral Procedure Act, the Government argued that this requirement amounted to a prohibition of the abuse of rights and that it followed from the State’s obligation to protect democratic institutions in order to ensure the “prevention of disorder” and the “protection of the rights of others”. It also guaranteed the rule of law and legal certainty. 80. With regard to the necessity of the interference in a democratic society, the Government emphasised that different societies reacted to the phenomenon of ballot photographs in different ways, depending on their historical experiences and legal and cultural traditions. In the absence of a European consensus, the member States had a wide margin of appreciation in this field and the domestic authorities were better placed to respond to the needs of society. 81. The Government argued that there was a pressing social need to maintain the prohibition on taking ballot papers outside the polling station, in either their physical or virtual form. Firstly, the general prohibition on taking photographs was necessary in order to prevent vote buying. Although it was not suggested that this was an actual problem in the present case, this type of election fraud had previously occurred in the form of chain-voting. Moreover, in the Government’s view, the use of mobile applications had an impact on the fairness of the electoral process also because it could undermine the public’s trust in the functioning of the electoral bodies and the official results. Applications that processed data on cast ballots without complying with the strict data security standards applicable to official electoral IT systems might provide results different from those of the electoral bodies, thereby casting doubt on the legality of the latter’s work. 82. In the Government’s view, where public confidence in the democratic institutions was at stake, it was irrelevant whether there had been actual, proven cases of electoral fraud; the suspicion of such was enough to undermine the public’s trust in the democratic process. 83. On the other hand, the Government questioned the relevance of the MKKP’s conduct, pointing out that there had been no “societal need” for the electorate to share their votes in the form of photographs. This had been demonstrated by the fact that only 3,894 photos had been shared via the mobile application, while the number of invalid votes had been 224,668 out of a total of 3,643,055 ballots cast. 84. In any event, in the Government’s assessment, the measure in question had been proportionate to the aim pursued. They argued that the MKKP had been penalised not for taking a ballot photograph but for applying a campaign material encouraging thousands of voters to disregard the electoral rules. In addition, voters remained free to express their political opinions in any manner other than publishing a picture of their ballot papers. The MKKP itself was not restricted in campaigning for voters to cast invalid ballots by other means than calling on them to publish photographs of ballot papers. Furthermore, it had only been fined a small amount of money. The Court’s assessmentExistence of an interference Existence of an interference Existence of an interference 85. It is uncontested between the parties that the domestic authorities’ decisions interfered with the MKKP’s freedom of expression under Article 10 of the Convention. For the following reasons, the Court sees no grounds to hold otherwise. 86. The Court has held that the use of photographs in general serves important communication functions, as they impart information directly, and has on many occasions recognised that the right to freedom of expression includes the publication of photographs (see Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 103, ECHR 2012; see also Ashby Donald and Others v. France, no. 36769/08, § 34, 10 January 2013). For the Court, the posting of ballot photographs is a form of conduct that qualifies as the exercise of freedom of expression. 87. It is true that the MKKP was not the author of the photographs in issue; rather, it participated in their dissemination by providing a mobile application for their publication. In its case-law the Court has established that Article 10 applies not only to the content of information but also to the means of dissemination, since any restriction imposed on the latter necessarily interferes with the right to receive and impart information (see, inter alia, Ahmet Yıldırım v. Turkey, no. 3111/10, § 50, ECHR 2012). In respect of the printed media, the Court has found that publishers, who do not necessarily associate themselves with the opinions expressed in the works they publish, participate in the exercise of freedom of expression by providing authors with a medium (see Öztürk v. Turkey [GC], no. 22479/93, § 49, ECHR 1999 ‑ VI). In the context of new media, the Court has previously held that a Google service designed to facilitate the creation and sharing of websites within a group constituted a means of exercising freedom of expression (see Ahmet Yıldırım, cited above, § 49). Similarly, a video-hosting website represented an important means of exercising the freedom to receive and impart information and ideas. The blocking of these services was found to have deprived users of a significant means of exercising their right to freedom to receive and impart information and ideas (see Cengiz and Others v. Turkey, nos. 48226/10 and 14027/11, § 54, ECHR 2015 (extracts)). In a similar vein, the running by the applicants of a website which made it possible for users to share digital material such as movies, music and computer games was considered as putting in place the means for others to impart and receive information within the meaning of Article 10 of the Convention. The applicants’ conviction for putting in place a means of disseminating information was therefore held to constitute interference with the right to freedom of expression (see Neij and Sunde Kolmisoppi v. Sweden (dec.), no. 40397/12, 19 February 2013). 88. In line with the approach in this line of case-law, the Court accepts that the mobile application was a means put in place by the MKKP for voters to impart their political opinions, allowing them to exercise their right to freedom of expression. 89. In addition, the Court notes that in the course of the domestic proceedings the authorities held that providing voters with a mobile application, calling on them to upload and publish photographs of ballot papers and encouraging them to cast an invalid ballot could be regarded as a campaigning activity, as it was likely to influence voters’ choices (see paragraph 27 above). The Court sees no reason to call into question the domestic authorities’ interpretation of the MKKP’s conduct. It considers that the MKKP was seeking not only to provide a forum for voters to express their opinion, but also to convey a political message itself. Given the context – during a national referendum – and the name of the application – “Cast an invalid ballot” – the operation of this mobile application is to be regarded as an expression of the MKKP’s political opinion on the referendum in question. 90. The Court further observes that the MKKP claimed that it had been penalised not for carrying out campaigning activity as such, but for doing so through the mobile application in question (see paragraphs 26-27 above). As the Court has consistently held, the protection of Article 10 extends not only to the substance of the ideas and information expressed but also to the form in which they are conveyed (see Jersild v. Denmark, 23 September 1994, § 31, Series A no. 298, and Bédat v. Switzerland [GC], no. 56925/08, § 58, 29 March 2016). The MKKP’s conduct falls into this category. 91. In the Court’s view, in the circumstances of the present case, the two aspects – providing a forum for third-party content and imparting information and ideas itself – are inseparably intertwined. The Court accepts that providing voters with a mobile application, calling on them to upload and publish photographs of ballot papers and encouraging them to cast an invalid ballot, thus involved the exercise of the MKKP’s right to freedom of expression in relation to both aspects. 92. The authorities’ reaction to the MKKP’s exercise of its rights under Article 10 of the Convention amounted to interference with those rights. Whether the interference was prescribed by law (a) General principles 93. The Court reiterates that the expression “prescribed by law” in the second paragraph of Article 10 not only requires that the impugned measure should have a legal basis in domestic law, but also refers to the quality of the law in question, which should be accessible to the person concerned and foreseeable as to its effects (see, among many other authorities, Delfi AS v. Estonia [GC], no. 64569/09, § 120, ECHR 2015, with further references). The notion of “quality of the law” requires, as a corollary of the foreseeability test, that the law be compatible with the rule of law; it thus implies that there must be adequate safeguards in domestic law against arbitrary interferences by public authorities (see Malone v. the United Kingdom, 2 August 1984, § 67, Series A no. 82, and Olsson v. Sweden ( no. 1 ), 24 March 1988, § 61, Series A no. 130). 94. As regards the requirement of foreseeability, the Court has repeatedly held that a norm cannot be regarded as a “law” within the meaning of Article 10 § 2 unless it is formulated with sufficient precision to enable a person to regulate his or her conduct. That person must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Those consequences need not be foreseeable with absolute certainty. While certainty is desirable, it may bring in its train excessive rigidity, and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague, and whose interpretation and application are questions of practice (see Delfi AS, cited above, § 121, and Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 141, ECHR 2012). The criterion of foreseeability cannot be interpreted as requiring that all detailed conditions and procedures governing the interference be laid down in the substantive law itself, and the requirement of “lawfulness” can be met if points which cannot be satisfactorily resolved on the basis of substantive law are set out in enactments of lower rank than statutes (see Association Ekin v. France, no. 39288/98, § 46, ECHR 2001-VIII). A law which confers a discretion is thus not in itself inconsistent with the requirement of foreseeability, provided that the scope of the discretion and the manner of its exercise are indicated with sufficient clarity, having regard to the legitimate aim of the measure in question, to give the individual adequate protection against arbitrary interference (see Gillow v. the United Kingdom, 24 November 1986, § 51, Series A no. 109). 95. That said, it is not for the Court to express a view on the appropriateness of the methods chosen by the legislature of a respondent State to regulate a given field. Its task is confined to determining whether the methods adopted and the effects they entail are in conformity with the Convention (see Magyar Helsinki Bizottság, cited above, § 184). 96. The Court would also reiterate that in proceedings originating in an individual application under Article 34 of the Convention, its task is not to review domestic law in the abstract but to determine whether the way in which it was applied to the applicant gave rise to a breach of the Convention (see Perinçek v. Switzerland [GC], no. 27510/08, § 136, ECHR 2015 (extracts), with further references). 97. Moreover, a margin of doubt in relation to borderline facts does not by itself make a legal provision unforeseeable in its application. Nor does the mere fact that a provision is capable of more than one construction mean that it fails to meet the requirement of “foreseeability” for the purposes of the Convention. The role of adjudication vested in the courts is precisely to dissipate such interpretational doubts as remain, taking into account the changes in everyday practice (see Gorzelik and Others v. Poland [GC], no. 44158/98, § 65, ECHR 2004 ‑ I). At the same time, the Court is aware that there must come a day when a given legal norm is applied for the first time (see, mutatis mutandis, Kudrevičius and Others v. Lithuania [GC], no. 37553/05, § 115, ECHR 2015). 98. As regards the scope of the notion of foreseeability, it depends to a considerable degree on the content of the instrument in question, the field it is designed to cover and the number and status of those to whom it is addressed (see, among many other authorities, Delfi AS, cited above, § 122, and Gorzelik and Others, cited above, § 65). 99. The electoral context takes on special significance in this regard, given the importance of the integrity of the voting process in preserving the confidence of the electorate in the democratic institutions. Accordingly, the Court has found wide and unpredictable interpretations of legal provisions governing elections to be either unforeseeable in their effects or indeed arbitrary and therefore incompatible with Article 3 of Protocol No. 1 (see Kovach v. Ukraine, no. 39424/02, §§ 48-62, ECHR 2008; Lykourezos v. Greece, no. 33554/03, §§ 50-58, ECHR 2006 ‑ VIII; and Paschalidis, Koutmeridis and Zaharakis v. Greece, nos. 27863/05 and 2 others, § § 29 ‑ 35, 10 April 2008). 100. When those legal provisions form the basis for restricting the exercise of freedom of expression, this is an additional element to be taken into account when considering the foreseeability requirements which the law must fulfil. In this connection the Court reiterates that free speech is essential in ensuring “the free expression of the opinion of the people in the choice of the legislature”. For this reason, it is particularly important in the period preceding an election that opinions and information of all kinds be permitted to circulate freely (see Orlovskaya Iskra v. Russia, no. 42911/08, § 110, 21 February 2017). This is especially true when the freedom of expression at stake is that of a political party. As the Court has repeatedly stated, political parties play an essential role in ensuring pluralism and the proper functioning of democracy. Restrictions on their freedom of expression therefore have to be made the subject of a rigorous supervision (see, among other authorities, mutatis mutandis, Refah Partisi (the Welfare Party) and Others v. Turkey [GC], nos. 41340/98 and 3 others, §§ 87-88 and 100, ECHR 2003 ‑ II). The same applies, mutatis mutandis, in the context of a referendum aimed at identifying the will of the electorate on matters of public concern. 101. In the Court’s opinion, this kind of supervision naturally extends to the assessment of whether the legal basis relied on by the authorities in restricting the freedom of expression of a political party was foreseeable in its effects to an extent ruling out any arbitrariness in its application. A rigorous supervision here not only serves to protect democratic political parties from arbitrary interferences by the authorities, but also protects democracy itself, since any restriction on freedom of expression in this context without sufficiently foreseeable regulations can harm open political debate, the legitimacy of the voting process and its results and, ultimately, the confidence of citizens in the integrity of democratic institutions and their commitment to the rule of law. (b) Application of these principles in the present case 102. In the present case, the parties’ opinions (see paragraphs 69 and 79 above respectively) differed as to whether the legal basis for the interference with the MKKP’s freedom of expression had been sufficiently foreseeable and, thus, whether the interference had been “prescribed by law”. 103. The MKKP argued that neither domestic law nor judicial practice prohibited the taking of ballot photographs and that the principle of the exercise of rights in accordance with their purpose, as applied by the domestic authorities, could serve as a legal basis for restrictions in an electoral context only if it was relied on in a situation where the restricted conduct entailed a negative consequence, for instance the infringement of the rights of others, such as the reputation of candidates and political parties (see paragraph 69 above). 104. The Government referred to the principle of the exercise of rights in accordance with their purpose as laid down in section 2(1)(e) of the Electoral Procedure Act, and the domestic courts’ interpretation of that provision. They added that, as of 2014 (with the publication of the NEC Guidelines), the MKKP had been in a position to foresee that the taking of ballot photographs would be contrary to that principle (see paragraph 77 above). 105. The Court observes that, in its decisions of 30 September and 7 October 2016, the NEC relied on both section 2(1)(a) of the Electoral Procedure Act (“EPA”), which enshrines the principle of the fairness of the voting process, and section 2(1)(e) of the EPA, which enshrines the bona fide exercise of rights in accordance with their purpose. It further relied on Article 2 § 1 of the Fundamental Law, which relates to the secrecy of voting, and on its own Guidelines, which explicitly stated that the taking of photographs of ballot papers was to be considered as infringing the above-mentioned principles (see paragraphs 21 and 25 above). 106. The Kúria, for its part, relied in its decisions of 10 and 18 October 2016 solely on section 2(1)(e) in so far as it relates to the principle of the exercise of rights in accordance with their purpose as the legal basis for the restriction. It found that the MKKP’s conduct did not infringe the principle of the bona fide exercise of rights. That court further dismissed the NEC’s reasoning and conclusions according to which the MKKP’s conduct had jeopardised the principle of the protection of the fairness of elections and the right to voting secrecy. It emphasised that the NEC Guidelines did not constitute a legislative act and did not have binding legal force and were, thus, irrelevant for its assessment (see paragraph 26 above). 107. In the second decision dated 18 October 2016, the Kúria also endorsed the NEC’s classification of the MKKP’s conduct as carrying out campaigning activity during the campaign period within the meaning of section 141 of the EPA, since calling on voters to upload and publish photographs of ballot papers and encouraging them to cast an invalid ballot was likely to influence voters’ choice. This conduct was found to be in breach of the rules on election campaigns, for which the MKKP was fined (on the basis of section 2(1)(e) read in conjunction with section 218(2)(d) of the EPA). 108. The Court sees no reason to call into question the existence in Hungarian law of legal provisions designed to deter individuals and entities from engaging in unlawful electoral activity, including by imposing a fine on those who breach the law. It notes that section 2(1) of the EPA stipulates that the basic principles enumerated therein must prevail in the application of the rules of electoral procedure. In addition, section 218 provides for a fine to be imposed in the event of a breach of the campaign regulations. The Court also observes that in domestic case-law the principle of the exercise of rights in accordance with their purpose, enshrined in section 2(1)(e) of the EPA, has been relied on by the courts, including the Kúria and the Constitutional Court, to restrict election-related forms of expression. There is no question of the above legal instruments being insufficiently accessible. 109. The salient issue in the present case remains, however, whether the MKKP, in the absence of a binding provision of domestic legislation (see paragraph 26 above) explicitly regulating the taking of ballot photographs and the uploading of those photographs in an anonymous manner to a mobile application for dissemination while voting was ongoing, knew or ought to have known – if need be, after taking appropriate legal advice – that its conduct would breach the existing electoral procedure law. 110. The vagueness of the principle of the “exercise of rights in accordance with their purpose ”, enshrined in section 2(1)(e) of the EPA, was pointed out by the Constitutional Court in its 2008 decision. It noted that this principle had been developed by both the legal literature and the case-law relating to the prohibition of abuse of rights in civil law. It further stated that the EPA did not define what constituted a breach of the principle and did not establish any criteria for determining which situation constituted a breach of the requirement to exercise rights in accordance with their purpose, nor did it even give any examples. In the Constitutional Court’s understanding, it was likewise not possible to establish generally applicable criteria for the exercise of rights not in accordance with their purpose; rather, it fell to the NEC and eventually the domestic courts to conclude, on the basis of the examination of all the circumstances of a given case, whether a certain conduct was in breach of the principle (see decision no. 18/2008 (III.12.) AB, paragraph 34 above). 111. The Court considers that a situation entailing the judicial interpretation of principles enacted in law will not in itself necessarily fall foul of the requirement that the law should be framed in sufficiently precise terms. However, the fact remains that the domestic regulatory framework applied in the present case provided for the possibility of a restriction on voting-related expressive conduct on a case-by-case basis and therefore conferred a very wide discretion on the electoral bodies and the domestic courts that were to interpret and apply it. Consequently, the lack of clarity of section 2(1)(e) of the EPA and the potential risk inherent in its interpretation for the enjoyment of voting-related rights, including the free discussion of public affairs, called for particular caution by the domestic authorities. 112. As to the interpretation of section 2(1)(e) of the EPA, the Constitutional Court restricted the reach of the provision to voting-related conduct which entailed “negative consequences”, including the infringement of the rights of others (see paragraphs 34-35 above). A similar approach transpires from the case-law of the Kúria (see paragraph 36 above). 113. The Court cannot but note that the NEC and the Kúria, in their examination of all the circumstances of the case at hand, disagreed as to the applicability of the basic principles of electoral procedure. The NEC relied on section 2(1)(e) read in conjunction with section 2(1)(a) of the EPA, arguing that the MKKP’s conduct had jeopardised the fairness of the elections and the secrecy of the voting process. For its part, the Kúria explicitly dismissed this line of argument, finding that the secrecy of the ballot had not been infringed, as the mobile application had not allowed access to the personal data of the users and had thus been incapable of linking a cast ballot to a voter. It further found that the MKKP’s conduct had had no material impact on the fairness of the national referendum and had not been capable of shaking public confidence in the work of the electoral bodies. It remained, however, unestablished how the impugned restriction, based as it was on the principle of the exercise of rights in accordance with their purpose, related to, and addressed, a concrete “negative consequence”, whether potential or actual. 114. Finally, in so far as the Government relied on the NEC Guidelines as clarification to the effect that the taking of ballot photographs was in breach of the principle in question, the Court notes that those Guidelines expressed the NEC’s view on the interpretation of the basic principles of electoral procedure. They were issued for the electoral bodies and were not legally binding but served exclusively as guidance (see section 51 of the EPA, paragraph 32 above). The Court notes, moreover, that it was only after the referendum that the relevance and the legal effects of the NEC Guidelines in the present circumstances were clarified by the Kúria (see paragraph 26 above). This certainly did not contribute to the foreseeability of the impugned restriction in the present case. 115. The present case was apparently the first in which the domestic authorities applied the principle of the exercise of rights in accordance with their purpose to the use of a mobile application for posting ballot photographs in an anonymous manner. As noted above, this does not, as such, make the interpretation of the law unforeseeable, as there must come a day when a given legal norm is applied for the first time (see paragraph 97 above). 116. However, having regard to the particular importance of the foreseeability of the law when it comes to restricting the freedom of expression of a political party in the context of an election or a referendum (see paragraphs 99-100 above), the Court takes the view that the considerable uncertainty about the potential effects of the impugned legal provisions applied by the domestic authorities exceeded what is acceptable under Article 10 § 2 of the Convention. (c) Conclusion 117. In the light of the foregoing, the Court is not satisfied that the Hungarian law applicable in the present case, on the basis of which the MKKP’s freedom to impart information and ideas was restricted, was formulated with sufficient precision, for the purposes of paragraph 2 of Article 10 of the Convention, so as to rule out any arbitrariness and enable the MKKP to regulate its conduct accordingly. 118. There has therefore been a violation of Article 10 of the Convention. In the light of this finding, it is not necessary to examine separately the MKKP’s remaining arguments under Article 10 of the Convention. APPLICATION OF ARTICLE 41 OF THE CONVENTION 119. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” Damage 120. The MKKP claimed 100,000 Hungarian forints ((HUF) ‑ approximately 330 euros (EUR)) in respect of pecuniary damage. This sum corresponded to the amount that it had been ordered by the Kúria to pay as a fine. 121. The Government did not contest this claim. 122. The Court reiterates that Article 41 empowers it to afford the injured party such satisfaction as appears to it to be appropriate (see O’Keeffe v. Ireland [GC], no. 35810/09, § 199, ECHR 2014 (extracts)). 123. The Court finds that the MKKP suffered pecuniary loss as a result of the fine that it was ordered to pay (see paragraph 27 above). Having regard to the link between the fine imposed in the domestic proceedings and the violation of Article 10 found by the Court, the MKKP is entitled to recover the full amount claimed. Costs and expenses 124. The MKKP claimed EUR 3,000 in respect of the costs and expenses incurred in the proceedings before the Chamber and EUR 3,750 in respect of those incurred before the Grand Chamber. These amounts correspond to twenty hours of legal work in respect of the proceedings before the Chamber, charged by its lawyer at an hourly rate of EUR 150, and twenty-five hours of legal work in respect of the proceedings before the Grand Chamber, charged at the same hourly rate. Furthermore, the MKKP claimed EUR 865 for travel and accommodation expenses related to the public hearing before the Grand Chamber. 125. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the full sum claimed, that is, EUR 7,615. Default interest 126. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Grand Chamber found in particular that the provision of domestic election law relied on by the authorities (a breach of the principle of the exercise of rights in accordance with their purpose) had not allowed the applicant party to foresee that it could be penalised for providing such an app, which had been an exercise of its freedom of expression. It concluded that the considerable uncertainty about the potential effects of the provision had exceeded what was acceptable under the Convention and that the lack of sufficient precision in the law to rule out arbitrariness and allow the applicant party to regulate its conduct had led to a violation of Article 10 (freedom of expression) of the Convention. |
1,017 | Protection of property (Article 1 of Protocol No. 1) | II. RELEVANT DOMESTIC LAW A. The 1991 Constitution 22. Article 6 § 2 of the 1991 Constitution provides as follows: “All citizens shall be equal before the law. There shall be no restrictions of rights or privileges on grounds of race, nationality, ethnic identity, sex, origin, religion, education, opinions, political affiliations, or personal, social or property status. 23. Article 51 of the Constitution provides as follows: “1. Citizens shall have the right to social security and social assistance. 2. Individuals who are temporarily unemployed shall be provided with social security under the conditions and procedures provided for by law. 3. Elderly people who are without relatives and who are unable to support themselves with their own assets, and individuals with physical or mental disabilities shall be under the special protection of the State and society.” 24. Article 57 § 1 of the Constitution stipulates that the citizens’ fundamental rights are irrevocable. B. Caps on pensions 1. Under the Pensions Act 1957 25. Section 47(5) of the Pensions Act 1957, in force until February 1991, provided that a retired person could not receive a pension exceeding his or her highest monthly wage during the last ten years of his or her employment. 26. In January 1990 section 47b(2) of the Pensions Act 1957 was amended to provide that the amount of the one or more monthly pensions received could not exceed BGL 500. The cap also applied to pensions that had already been granted (paragraph 3 of the transitional and concluding provisions of the Act for the amendment of the Pensions Act). 27. Section 47c of the Pensions Act 1957, inserted in June 1992, capped the amount that could be paid to an individual as a result of his or her entitlement to one or more pensions at three times the amount of the social pension. 28. The amount of the social pension was set by the Council of Ministers pursuant to a proposal by the NSSI (sections 45a(4) and 46b(4) of the Pensions Act 1957). It was superseded by the social pension for old age under Article 89 of the Social Security Code 1999 (see paragraph 32 below). Its amount, and the corresponding capped pensions, were as follows: Period Social pension Pensions cap 1 January – 31 March 1996 BGL 1,210 BGL 3,630 1 April – 30 June 1996 BGL 1,800 BGL 5,400 1 July – 31 September 1996 BGL 2,160 BGL 6,480 1 October 1996 – 30 April 1997 BGL 2,808 BGL 8,424 1 – 8 May 1997 BGL 14,040 BGL 42,120 9 May – 30 June 1997 BGL 16,300 BGL 48,900 1 July – 31 September 1997 BGL 27,000 BGL 81,000 1 October – 31 December 1997 BGL 28,900 BGL 86,700 1 January – 30 June 1998 BGL 30,350 BGL 91,050 1 July – 31 December 1998 BGL 33,000 BGL 99,000 1 January – 30 June 1999 BGL 34,650 BGL 103,950 1 July – 31 December 1999 BGL 37,000 (BGN 37) BGL 111,000 (BGN 111) 29. In December 1997 the Chief Prosecutor challenged section 47c before the Constitutional Court, arguing that it ran counter to Articles 51 § 1 and 57 § 1 of the Constitution (see paragraphs 23 and 24 above) and to Article 9 of the International Covenant on Economic, Social and Cultural Rights. In a judgment of 15 July 1998 (реш. № 21 от 15 юли 1998 г. по к. д. № 18 от 1997 г., обн., ДВ, бр. 83 от 21 юли 1998 г.) the Constitutional Court rejected the challenge by seven votes to five. It held as follows: “The provision [in issue], the new section 47c of the Pensions Act, was [inserted in 1992]. It introduced the impugned pensions cap based on the social pension. In turn, the social pension is set by the Council of Ministers on the basis of a proposal by the [NSSI] (section 45a(1)). It should be noted, for the record, that even before section 47c was added the Pensions Act, which has been amended and supplemented many times, contained provisions that in one way or another set limits on the maximum amount [of pension]. Thus, section 47b(2), [added in 1990 and subsequently repealed], provided that the amount of one pension or the sum total of several pensions could not exceed [BGL] 500 per month. Another example is section 47(5) of the Pensions Act [as in force between 1967 and 1991]. Under the rule laid down in section 47c of the Pensions Act, a class of individuals receive the same amount of pension irrespective of the differences between their employment remunerations, their lengths of service or their social security contributions. While the amount of the pensions of most pensioners depends on those parameters, the amount of the pensions of the persons concerned [by the cap] does not. The question thus arises whether the resulting levelling makes the impugned rule unconstitutional. The answer cannot be affirmative. The allegations that Articles 51 § 1 and 57 § 1 of the Constitution have been breached are groundless. Why is that? Article 51 § 1 of the Constitution proclaims the right to social security and social assistance. The right to a pension, being part of the right to social security, is comprised and enshrined in that provision. It is one of the citizens’ fundamental rights and is irrevocable. However, the constitutional provision does not lay down the conditions under which that right arises and the way in which it is to be exercised. It follows that the framers of the Constitution have left those matters, which include the amount of the pension, to be regulated by statute. The legislature is entitled to determine the matter at its discretion, provided the concrete solution proposed does not run counter to the principles and requirements of the [Constitution]. The legislature did so by adopting section 47c of the Pensions Act. Article 57 § 1 of the Constitution has not been breached either. That provision is entirely irrelevant, because the impugned section 47c of the Pensions Act does not concern a revocation of rights. ... It is true that section 47c of the Pensions Act places citizens in two groups, based on the manner of calculating their pensions. For the first of those groups, the pension is based on certain [individual circumstances], whereas for the second the amount is the same for all. That unequal situation is not a function of any of the statuses ‘set out in Article 6 § 2 of the Constitution in an exhaustive manner’ ... Therefore, the constitutional principle of equality of citizens before the law has not been breached. It is in addition alleged that section 47c of the Pensions Act results in an injustice for those affected by it. That argument is likewise ill ‑ founded. On the contrary, the provision results in justice. One could talk about injustice if it did not exist. The cap set out in section 47c of the Pensions Act could be linked with the so ‑ called minimum amount of pension. Not only is that minimum, guaranteed by law, not unconstitutional, but it is recommended by some conventions of the International Labour Organisation: for instance, Article 7 of Convention No. 35 on Old ‑ Age Insurance (Industry, etc.), [1933]; Article 7 of Convention No. 38 on Invalidity Insurance (Agriculture), [1933]; Article 9 of Convention No. 39 on Survivors’ Insurance (Industry, etc.), [1933]. Those conventions allow the amount of pension to be a fixed sum, or a percentage of the remuneration taken into account for insurance purposes, or to vary with the amount of the contributions paid. The existence of limits on the maximum or the minimum amount of pension, as well as their mutual dependence, are a result of the pension system operating in our country. It can be described, in financial terms, as a ‘pay ‑ as ‑ you ‑ go’ system. Such a system requires a cap on the maximum amount of pension – it serves to guarantee the minimum amount of pension and to contribute to its growth. That function shows that the impugned provision is consistent with the requirements of social justice, as laid down in the Preamble to the [Constitution]. Those reasons lead [this court] to conclude that the current wording of section 47c of the Pensions Act does not run counter to any constitutional provision. The request must therefore be dismissed. In those circumstances ..., there is no need to rule on the previous wording of the same provision. At the same time, [this court] finds that the current constitutional arrangements do not rule out the impugned legislative solution being repealed in the future, but actually make it desirable in the context of the comprehensive reform of social security in this country. ... The rule contained in [Article 9 of the International Covenant on Economic, Social and Cultural Rights] corresponds to that contained in Article 51 § 1 of the [Constitution]. [Article 5 § 1 of the Covenant] is likewise reflected in Article 57 § 1 of the [Constitution]. In those circumstances, and bearing in mind that section 47c of the Pensions Act is not unconstitutional and that the above ‑ mentioned provisions of the [Covenant] have been reflected in the Constitution, [this court comes to the conclusion] that section 47c of the Pensions Act is not contrary to the Covenant provisions either.” 30. The five dissenting judges were of the view that the cap was contrary to the constitutional principle of justice because it disregarded the individual contribution of each person to the public good. 2. Under the Social Security Code 1999 31. Paragraph 6(1) of the transitional and concluding provisions of the Social Security Code 1999, which came into force on 1 January 2000 and superseded the Pensions Act 1957, read as follows: “Up to 31 December 2003 inclusively, the amount of the one or more pensions received ... shall not exceed four times the social pension for old age.” 32. The social pension for old age, which superseded the social pension under section 45a of the Pensions Act 1957 (see paragraph 28 above) is currently governed by Article 89 of the Code (repealed with effect from 1 January 2012). It is set by the Council of Ministers on the basis of a proposal by the NSSI and the Ministry of Labour and Social Policy (Article 89 § 2 of the Code). Its amount, and the corresponding amount of the pensions cap, were as follows: Period Social pension Pensions cap 1 January 2000 – 31 May 2001 BGN 40 BGN 160 (EUR 81.81) 1 June 2001 – 31 May 2002 BGN 44 BGN 176 (EUR 89.99) 1 June 2002 – 31 May 2003 BGN 46.64 BGN 186.56 (EUR 95.39) 1 June 2003 – end of 2003 BGN 50 BGN 200 (EUR 102.26) 33. As an exception to that general rule, paragraph 6(6) of the transitional and concluding provisions of the Code, in force between 1 January 2002 and 31 December 2003, capped the pensions received by retired military personnel or personnel from certain other national security institutions at five times the social pension for old age. In a judgment of 23 February 2004 (реш. № 1579 от 23 февруари 2004 г. по адм. д. № 5004/2003 г., ВАС, І о.) the Supreme Administrative Court held that the exemption was strictly personal and did not apply to the heirs of the persons mentioned in paragraph 6(6). 34. On 23 December 2003, a few days before the date on which the cap was due to expire (see paragraph 31 above), Parliament amended paragraph 6(1) with effect from 1 January 2004 to read as follows: “The maximum amount of the one or more pensions received, granted before 31 December 2009 ..., shall be equal to thirty ‑ five per cent of the maximum income for social security purposes for each calendar year [see paragraph 54 below], [as] fixed by the annual State social security budget Act.” It appears that the percentage was set at 35% because that is equivalent to the expected average pension replacement rate in Bulgaria (the ratio between a retiree’s preretirement income and his or her pension – see paragraph 48 below). 35. With effect from 1 January 2005, the basis for calculating the cap was changed to the maximum monthly income for social security purposes for the previous calendar year (see paragraph 54 below). 36. With effect from 1 January 2007, the date for recalculating the cap was moved from 1 January to 1 July. In 2009, the cap was exceptionally set at BGN 700 with effect from 1 April of that year (paragraph 22h(1) of the transitional and concluding provisions of the Code). 37. Thus, during the period 2004 ‑ 11 the cap was as follows: Year Amount of the cap 2004 BGN 420 (EUR 214.74) 2005 BGN 420 (EUR 214.74) 2006 BGN 455 (EUR 232.64) 2007 BGN 490 (EUR 250.53) 2008 BGN 490 (EUR 250.53) 2009 BGN 700 (EUR 357.90) 2010 BGN 700 (EUR 357.90) 2011 BGN 700 (EUR 357.90) 38. With effect from 1 January 2010, the cap was extended to all pensions granted before 31 December 2011. The explanatory notes to the draft bill that the Government laid before Parliament related the content of the proposed amendment without further explanations. 39. With effect from 1 January 2011, the cap was extended to all pensions granted before 31 December 2013. The explanatory notes to the draft bill that the Government laid before Parliament said that the proposal was to abolish the cap in respect of pensions granted after 1 January 2014 and gradually to increase it in respect of pensions granted before that date. 40. The cap does not apply to individuals who have held the posts of President or Vice ‑ President of the Republic of Bulgaria, Speaker of the National Assembly, Prime Minister, or judge in the Constitutional Court (paragraph 6(3) of the transitional and concluding provisions of the Code). Nor does it apply to military invalids who have reached the general retirement age (paragraph 6(5) of the transitional and concluding provisions of the Code). In a judgment of 2 October 2001 (реш. № 7218 от 2 октомври 2001 г. по адм. д. № 1127/2001 г., ВАС, I о.) the Supreme Administrative Court held that this exemption is strictly personal and does not apply to the heirs of the persons mentioned in paragraph 6(3). 41. In 2001 an individual whose pension had been capped in application of paragraph 6(1) sought judicial review of the NSSI’s decision in relation to his pension. In a final decision of 18 March 2002 (реш. № 2491 от 18 март 2002 г. по адм. д. № 6065/2001 г., ВАС, І о.) the Supreme Administrative Court dismissed his application, holding that the NSSI had properly applied the substantive law and that the courts were not competent to rule on the constitutionality of statutory provisions such as paragraph 6. 42. In December 2004 an association of pensioners affected by the cap asked the Chief Prosecutor to refer paragraph 6(1) to the Constitutional Court. In a letter of 10 February 2005 the Chief Prosecutor’s Office informed the association that the Chief Prosecutor had turned down the request because he considered that the pensions cap did not fall foul of the Constitution. 43. In February 2008 a pensioner affected by the cap asked the Ombudsman of the Republic of Bulgaria to refer paragraph 6 to the Constitutional Court. In July 2008 the Ombudsman refused, saying that the cap appeared reasonable, and that in any event the matter had been settled with the Constitutional Court’s judgment of 15 July 1998 (see paragraph 29 above) and could not be revisited. 44. In 2009 another individual whose pension had been reduced from BGN 995.29 to BGN 700 in application of paragraph 6 sought judicial review of the NSSI’s decision in relation to his pension. In a judgment of 9 December 2009 (реш. № 96 от 9 декември 2009 г. по адм. д. № 5932/2009 г., САС, І о., 14 състав) the Sofia Administrative Court dismissed the application. The litigant appealed on points of law, asserting, inter alia, that the cap was contrary to the Constitution and to Article 1 of Protocol No. 1 to the Convention. He requested the Supreme Administrative Court to stay the proceedings and refer the constitutionality of paragraphs 6(1) and 22h(1) of the Code (see paragraphs 34 and 36 above) to the Constitutional Court. 45. On 7 August 2010 (опр. от 7 август 2010 г. по хода на адм. д. № 1407/2010 г., ВАС, VІ о.) the Supreme Administrative Court acceded to the referral request, stayed the proceedings and referred to the Constitutional Court the question whether the impugned provisions were compatible with the Constitution, Article 14 of the Convention, and Article 1 of Protocol No. 1. 46. In a decision of 10 February 2011 (опр. № 1 от 10 февруари 2011 г. по к. д. № 18/2010 г.) the Constitutional Court, over the dissent of one judge, refused to take the matter up for consideration. It held that, in so far as it concerned the compatibility of the pensions cap with the Constitution, the subject matter of the case was essentially the same as that of the case that it had decided in 1998 (see paragraph 29 above). It was immaterial that the two cases concerned different legal provisions. The court went on to hold, in relation to the alleged incompatibility of the cap with Article 1 of Protocol No. 1, that under the Constitution the Supreme Administrative Court was not competent to refer to it the alleged incompatibility of statutory provisions with international treaties. 47. In view of that decision, on 28 February 2011 (опр. от 28 февруари 2011 г. по хода на адм. д. № 1407/2010 г., ВАС, VІ о.) the Supreme Administrative Court decided to resume the proceedings. It heard the case on 21 April 2011. The litigant argued, inter alia, that paragraph 6(1) was in breach of Bulgaria’s international obligations and that it was still open to the court to rule on that issue. The prosecutor who took part in the proceedings ex officio argued, inter alia, that the pensions cap did not run counter to the Constitution or to Article 1 of Protocol No. 1. 48. In a final judgment of 7 July 2011 (реш. № 10139 от 7 юли 2011 г. по адм. д. № 1407/2010 г., ВАС, VІ о.) the Supreme Administrative Court upheld the lower court’s decision and thus the NSSI’s decision to cap the litigant’s pension. It held that the NSSI had correctly applied the statutory rules, which required it to apply a ceiling to the pension. That ceiling was set at 35% of the maximum income for social security purposes (see paragraph 54 below) because that was the average pension replacement rate in Bulgaria. The previous version of the cap had been upheld by the Constitutional Court (see paragraph 29 above) and could therefore not be regarded as unconstitutional. Nor did it run counter to any international treaties to which Bulgaria was party, or to European Union law. C. General rules on the amounts and funding of retirement pensions 1. Under the Pensions Act 1957 and related legislation 49. Between 1957 and the end of 1999, the pension system in Bulgaria was a monopillar system; the Pensions Act 1957 made provision for just one tier of retirement pension (sections 2 ‑ 11). Until 1995, the pension fund’s budget was part of the general State budget (Article 170 of the Labour Code 1951). After that, the pension scheme continued to be based on an unfunded, pay ‑ as ‑ you ‑ go model, but the pension fund was separated from the State budget and its management was entrusted to the newly created NSSI (sections 1 ‑ 13 of the Social Security Fund Act 1995). Before March 1996, social security contributions were charged only to employers, not employees, and employers were barred from deducting those contributions from the remuneration paid to employees (Article 148 of the Labour Code 1951, as worded from its adoption in 1951 until the beginning of March 1996). In March 1996 contributions began to be charged, in specified proportions, to both employers and employees (Articles 147, 147a and 148 of the Labour Code 1951, as amended with effect from 1 March 1996). 50. An individual became entitled to a retirement pension after a specified number of years of contributions (as a general rule, twenty-five years for men and twenty years for women – section 2(1)(c) of the Pensions Act 1957; there were more favourable conditions for certain categories of work – section 2(1)(a) and (b)). The pension age was sixty years for men and fifty ‑ five years for women (ibid.). However, the age requirement did not apply to military personnel, police, and some other categories of civil servants, who could, in addition, retire after a shorter period of contributions (twenty years – sections 6(1) and 7(1) of the Act). Air Force pilots could retire after ten years of service (section 6(2) of the Act). As a rule, the amount of an individual’s retirement pension was calculated as a percentage of the average gross monthly earnings for three years picked by the pensioner out of his or her last fifteen years of service (section 11(1) of the Pensions Act 1957, as in force between 1967 and 1996). In 1996, that basis was changed to three years of the pensioner’s choice until 1 January 1997, plus the entire period of service after that. 51. Pensions were not subject to taxation (section 2(1)(c) of the Income Tax Act 1950). 2. Under the Social Security Code 1999 52. The Social Security Code 1999 came into force on 1 January 2000 and brought about significant changes in the retirement pension model. It makes provision for a multipillar pension system, with three tiers of general retirement pension. The first ‑ tier, or basic, pension scheme is mandatory, public, and defined ‑ benefit. It is based on an unfunded, pay ‑ as ‑ you ‑ go model (Articles 21 and 22 of the Code), and consists of public pension funds managed by the NSSI. The general fund’s main sources of financing are social security contributions and subsidies from the State budget (Article 21 of the Code). Contributions are charged to both employers and employees, in a specified proportion, with the exception of judges, prosecutors, investigators, civil servants, police, national security agents, and military personnel, whose contributions are fully covered by the State budget (Article 6 §§ 3 and 5 of the Code). The part of the contributions payable by employers cannot be deducted from remunerations under any form (Article 6 § 12 of the Code). The amount of the annual State subsidy to the fund is fixed in the annual State social security budget Act (Article 21 § 4 (b) of the Code). Apart from retirement pensions, the fund is used to pay out survivor’s and disability pensions, as well as certain health ‑ related benefits (Article 22 of the Code). The second ‑ tier scheme is also mandatory. It applies to all individuals born on or after 1 January 1960, and is a funded defined ‑ contribution scheme, with contributions fixed by law and going into funds consisting of individual accounts and managed by private companies subject to special regulation (Articles 120a ‑ 123i and 124 ‑ 203 of the Code). The second ‑ tier scheme is open only to individuals born on or after the above ‑ mentioned date because at the time when it started operating (1 January 2002) they were aged forty ‑ two years or less and could thus be expected to make contributions for a longer period of time and build up the funds on which the scheme relies (Средкова, К., Осигурително право, 3 издание, Сиби, 2008, стр. 216; Мръчков, В., Осигурително право, 5 издание, Сиби, 2010, стр. 380 и 389). The third ‑ tier scheme is voluntary and open to all persons above the age of sixteen. It is also a funded defined ‑ contribution scheme, with contributions going into funds consisting of individual accounts and managed by private companies subject to special regulation. However, unlike the second ‑ tier scheme, the amount of the contributions is not fixed by law but freely decided upon by the persons concerned (Articles 120a ‑ 123i, 209 ‑ 59 and 317 ‑ 43 of the Code). [3] 53. An individual becomes entitled to a retirement pension after a specified number of years of contributions (currently thirty ‑ seven for men and thirty ‑ four for women, set gradually to rise to forty and thirty ‑ seven years, respectively – Article 68 §§ 1 and 2 of the Code). The pension age is currently sixty ‑ three years for men and sixty years for women, set gradually to rise to sixty ‑ five and sixty ‑ three years, respectively (Article 68 § 1 of the Code). However, the age requirement does not apply to military personnel, police, and some other categories of civil servants, who can, in addition, retire after a shorter period of contributions (Article 69 of the Code). Air Force pilots can retire after fifteen years of service (Article 69 § 3, subsequently § 4, of the Code). The amount of the basic, or first ‑ tier, retirement pension is calculated in the manner laid down in Articles 70 and 70a of the Code. It is a function of the length of service (“ осигурителен стаж ”) and the average monthly income for social security purposes (“ средномесечен осигурителен доход ”), multiplied by an individual coefficient. The coefficient is based on the ratio between the retiree’s monthly earnings and the average monthly salary (for the period before 1 January 1997) and the average monthly income for social security purposes (for the period after 1 January 1997). For the period before 1 January 1997, the calculation is based on the retiree’s monthly earnings during three consecutive years of his or her choice out of the last fifteen years of service. For the period after 1 January 1997, the calculation is based on the retiree’s monthly earnings during the entire period of service between that date and the date of retirement. 54. The monthly income for social security purposes (“ осигурителен доход ”) is used as the basis for calculating not only pensions and welfare benefits, but also social security contributions. It has a lower and an upper limit. The upper limit serves to cap the amount of the monthly social security contributions. In 2000 ‑ 01, that limit was ten times the minimum monthly salary [4] (Article 9 § 2 of the Code, as worded until 31 December 2001). Since 2002, it has been fixed in monetary terms in the annual State social security budget Act (Article 6 § 2 (1) of the Code, as worded after 1 January 2002). In 2002 it was BGN 850 (section 8(4) of the State social security budget Act for 2002). In 2003 it became BGN 1,000 (section 8(5) of the State social security budget Act for 2003). In 2004 it became BGN 1,200 (section 8(5) of the State social security budget Act for 2004). In 2005 it became BGN 1,300 (section 8(5) of the social security budget Act for 2005). In 2006 and 2007 it became BGN 1,400 (section 8(5) of the social security budget Acts for 2006 and 2007). In 2008 ‑ 11 it became BGN 2,000 (section 8(5) (later (4)) of the State social security budget Acts for 2008 ‑ 11). 55. Pensions received under the first ‑ and second ‑ tier schemes are not subject to taxation (section 12(1)(2) of the Physical Persons Income Taxation Act 1997, superseded on 1 January 2007 by section 13(1)(6) of the Physical Persons Income Tax Act 2006). D. The Protection Against Discrimination Act 2003 1. General prohibition of discrimination 56. Section 4 of the Protection Against Discrimination Act 2003, which came into force on 1 January 2004, prohibits any direct or indirect discrimination on the basis of gender, race, nationality, ethnicity, human genome, citizenship, origin, religion or belief, education, convictions, political affiliation, personal or social status, disability, age, sexual orientation, marital status, property status, or on any other grounds established by law or by an international treaty to which Bulgaria is party. 2. Commission for Protection Against Discrimination 57. The authority responsible for ensuring compliance with the Act and with other statutes containing equal ‑ treatment provisions is the Commission for Protection Against Discrimination (section 40). 58. Section 47 empowers the Commission to, inter alia, make recommendations for the enactment, repeal or amendment of statutes and regulations (subsection 8). 59. In a decision of 17 September 2009 (реш. № 163 от 17 септември 2009 г. по пр. № 56/2008 г.), given in proceedings brought by a number of individuals affected by the pensions cap under paragraph 6(1) of the transitional and concluding provisions of the Social Security Code 1999 (see paragraphs 31 ‑ 39 above), the Commission found that the cap amounted to indirect discrimination on the basis of property status and was in breach of the principle of equal treatment of the pensioners affected by it. In the view of the Commission, those who had had higher salaries and had accordingly paid higher pension contributions, and had done so for a longer period of time, were just as entitled to the full amount of their pensions as those who did not fall into that group. The Commission went on to note that paragraph 6(1), as amended in 2004, envisaged that pensioners whose pensions were granted from 1 January 2010 onwards would not face a cap on their pension. That difference in treatment lacked an objective justification and was also in breach of the principle of equal treatment. In view of those considerations, the Commission recommended to Parliament to repeal paragraph 6(1). 60. On the other hand, the Commission found that paragraph 6(5) of the transitional and concluding provisions of the Code (see paragraph 40 above) did not amount to discriminatory treatment under the Act, because it was necessary and objectively justified in view of the special status of the persons to whom it provided an advantage and of the restrictions that those persons faced in carrying out their public duties. 61. In a decision of 18 May 2010 (реш. № 117 от 18 май 2010 г. по пр. № 122/2009 г.) the Commission again found that the existence of a cap on pensions granted before a certain date (at that time, the end of 2011 – see paragraph 38 above) and the lack of such a cap on pensions granted after that date lacked an objective justification and amounted to indirect discrimination. The Commission recommended to the Council of Ministers to table a bill in Parliament for the amendment of paragraph 6(1). 3. Liability for acts of discrimination 62. Under section 71(1) of the Act, a person who considers that his or her right to equal treatment stemming from the Act or from other statutes has been violated can bring a claim, seeking declaratory or injunctive relief or an award of damages. 63. Under section 73 of the Act, a person who considers that an administrative decision has breached his or her right to equal treatment stemming from the Act or from other statutes can seek judicial review of the decision. 64. Under section 74(1) of the Act, a person who has obtained a favourable ruling by the Commission for Protection Against Discrimination and seeks compensation for damage suffered as a result of the violation of his or her right to equal treatment stemming from the Act or from other statutes can bring a tort claim against the persons or authorities that have caused the damage. If the damage stems from unlawful decisions, actions or omissions of State authorities or officials, the claim must be brought under the State Responsibility for Damage Act 1988 (section 74(2)). III. RELEVANT STATISTICAL INFORMATION 65. According to information published by the NSSI and the National Statistical Institute, the overall number of pensioners in Bulgaria, the number of pensioners affected by the pensions cap, and the annual amount of money “saved” by the NSSI’s budget as a result of the cap were as follows: Year Overall numberof pensioners Number of pensionerswith capped pensions Annual “savings” 1999 n/a 201,786 BGN 70,411,978 2000 n/a 140,413 BGN 105,130,340 2001 2,372,268 156,344 BGN 128,338151 2002 2,349,045 162,508 BGN 142,604,831 2003 2,343,896 164,536 BGN 154,964,256 2004 2,320,444 15,929 BGN 19,091,520 2005 2,301,669 23,519 BGN 29,030,701 2006 2,271,192 21,088 BGN 27,240,041 2007 2,233,697 37,182 BGN 56,264,707 2008 2,200,595 73,175 BGN 85,676,442 2009 2,189,131 42,615 BGN 94,173,582 2010 2,194,274 46,540 n/a IV. RELEVANT COMPARATIVE MATERIAL 66. The World Bank and the Organisation for Economic Cooperation and Development (“OECD”) have published comparative studies of the pension systems of various countries, including a number of Contracting States. Among them are Pensions Panorama: Retirement ‑ Income Systems in 53 Countries, The World Bank (2007), and Pensions at a Glance 2011: Retirement ‑ income Systems in OECD and G20 Countries, OECD (2011), OECD Publishing. The first study found, inter alia, that most high ‑ income OECD countries do not require high earners to make pension contributions on their entire earnings. Usually, a limit is set on the earnings used to calculate both contribution liability and pension benefits. The study also found that the average ceiling on public (first ‑ tier) pensions in sixteen high ‑ income OECD countries is 190% of average economy ‑ wide earnings. The overall (first ‑ and second ‑ tier) pension ceiling for seventeen high ‑ income OECD countries averages 275% of average earnings (pp. 13 ‑ 18). The second study also noted that most OECD countries have set a limit on the earnings used to calculate both contribution liabilities and pension benefits, and that the average ceiling on public pensions for twenty ‑ one countries is 185% of average economy ‑ wide earnings, excluding four countries that have no ceiling on public pensions (p. 110). 67. Based on a detailed cross ‑ country analysis of pension entitlements, the first study came to the conclusion that “different countries’ pension systems strike very different balances between the goals of adequacy – guaranteeing that all older people meet a minimum standard of living – and insurance – ensuring a certain standard of living in retirement relative to that when working”. For instance, OECD counties could be divided in four groups. The first comprised those (including Denmark and Ireland) in which there was little or no link between pensions and preretirement earnings. The second consisted of those (including Belgium, Iceland, and the United Kingdom) in which that link was weak. The third group (including France, Norway, Portugal, and Switzerland) lay toward the middle. The countries in the fourth group (including Austria, Finland, Germany, Greece, Italy, Luxembourg, the Netherlands, Spain, and Sweden) had a very strong link between pensions and preretirement earnings. The same divisions could be observed in Eastern Europe, where Bulgaria, Croatia, the Czech Republic, Lithuania and Turkey had a weaker link between pensions and preretirement earnings, and Estonia, Hungary, Latvia, Poland and the Slovak Republic had a stronger one (pp. 31 ‑ 45). 68. The second study calculated, inter alia, pension entitlements in OECD countries and several other major economies (pp. 115 ‑ 43). As part of that exercise, it measured the progressivity of the mandatory parts of the countries’ pension systems, or, in other words, the link between pensions and preretirement earnings. The results showed that some countries, such as Ireland and the United Kingdom, have highly progressive systems (in which the link between preretirement incomes and pensions is very weak), whereas others, such as Finland, Greece, Hungary, Italy, the Netherlands, Poland, Portugal and the Slovak Republic, have almost entirely proportional systems (in which the link between preretirement incomes and pensions is very strong) and therefore limited progressivity. The study said that “[a] high score [on the progressivity index] is not necessarily ‘better’ than a low score or vice versa. Countries with a high score simply have different objectives than countries with a low score.” (pp. 136 ‑ 37). THE LAW I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 69. The applicants complained that the cap on their retirement pensions was in breach of their rights under Article 1 of Protocol No. 1, which provides as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” A. Admissibility 70. The Government submitted that if they considered that their pensions had been set by the NSSI at variance with their statutory entitlement, the applicants could have sought judicial review of the NSSI’s decisions concerning their individual pensions. In addition they could have petitioned the competent authorities to request the Constitutional Court to review the constitutionality of paragraph 6(1) of the transitional and concluding provisions of the Social Security Code 1999. 71. The applicants submitted that in proceedings for judicial review of individual decisions of the NSSI the courts could not scrutinise statutes as such. According to the Supreme Administrative Court’s established case ‑ law, only the Constitutional Court was competent to rule on their constitutionality. The Government had not pointed to any examples where the Bulgarian courts had set aside a decision of the NSSI capping a pension by reference to paragraph 6(1) of the transitional and concluding provisions of the Social Security Code 1999. Furthermore, under Bulgarian law private persons could not bring proceedings before the Constitutional Court. When two non ‑ governmental organisations had asked the Ombudsman to refer paragraph 6(1) to the Constitutional Court, the Ombudsman had refused, saying that the matter had already been resolved by that court in 1998. 72. Concerning the first limb of the Government’s objection, the Court observes that the cap on pensions currently flows directly from the express wording of paragraph 6(1) of the transitional and concluding provisions of the Social Security Code 1999; until 31 December 1999 it was based on the express wording of section 47c of the Pensions Act 1957 (see paragraphs 27, 31 and 34 above). It was not disputed that in its decisions fixing the pension of each of the applicants the NSSI, which had no discretion in the matter, applied those provisions correctly. In that regard, the present cases are no different from the two cases from 2001 and 2010 in which the Supreme Administrative Court dismissed applications for judicial review of pension ‑ capping decisions of the NSSI, holding that those decisions were lawful (see paragraphs 41 and 48 above). It follows that applications for judicial review of the NSSI’s decisions were not an effective remedy that the applicants had to use (see, mutatis mutandis, Immobiliare Saffi v. Italy [GC], no. 22774/93, § 42 in limine, ECHR 1999 ‑ V; Urbárska Obec Trenčianske Biskupice v. Slovakia, no. 74258/01, § 86, 27 November 2007; and Ognyan Asenov v. Bulgaria, no. 38157/04, § 32, 17 February 2011). 73. The second limb of the objection does not stand up to examination either. In Bulgaria, there is no possibility for private persons themselves to bring proceedings before the Constitutional Court. The Court has, in line with its earlier case ‑ law on that point (see Brozicek v. Italy, 19 December 1989, § 34, Series A no. 167; Padovani v. Italy, 26 February 1993, § 20, Series A no. 257 ‑ B; Spadea and Scalabrino v. Italy, 28 September 1995, § 24, Series A no. 315 ‑ B; and Immobiliare Saffi, cited above, § 42 in fine ), already held that the possibility to request the bodies or the officials entitled to bring such proceedings to do so is not an effective remedy for the purposes of Articles 13 or 35 § 1 of the Convention, because the persons concerned cannot directly compel the institution of proceedings before the Constitutional Court, whereas under this Court’s settled case ‑ law a remedy can be considered effective only if the applicant is able to initiate the procedure directly (see Petkov and Others v. Bulgaria, nos. 77568/01, 178/02 and 505/02, § 82, ECHR 2009 ‑ ..., with further references). The Court reaffirmed that ruling in Nozharova v. Bulgaria ((dec.), nos. 44096/05 et al., 25 August 2009). It sees no reason to deviate from it in the present case, in which several such requests were turned down (see paragraphs 42 and 43 above). The fact that in August 2010 the Supreme Administrative Court acceded to a request to refer the pensions cap to the Constitutional Court (see paragraphs 44 and 45 above) does not alter that position, because the referral was a result of the exercise of that court’s discretionary power in that respect. In any event, the Constitutional Court refused to accept the matter for examination, noting that it had already ruled on the constitutionality of the cap in 1998 and that the Supreme Administrative Court was not competent to refer to it the alleged incompatibility of statutory provisions with international treaties (see paragraph 46 above). 74. The Government’s objection of non ‑ exhaustion of domestic remedies must therefore be rejected. 75. The Court further finds that the complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. Any issues having to do with its compatibility ratione materiae with the provisions of the Convention are more appropriately addressed at the merits stage (see, mutatis mutandis, Maggio and Others v. Italy, nos. 46286/09, 52851/08, 53727/08, 54486/08 and 56001/08, § 36, 31 May 2011). The complaint must therefore be declared admissible. B. Merits 1. The parties’ submissions 76. The Government submitted that the cap on the maximum amount of pension had been prompted by financial considerations. Such a cap had existed under different forms ever since the adoption of the Pensions Act 1957. Pensions in Bulgaria were based on the principle of social solidarity, which required that all those who reached a certain age be provided with a pension, but also that the personal input of each individual be taken into account in fixing its amount. A pension ceiling was not a uniquely Bulgarian occurrence, but existed in a number of countries, such as Germany, without being regarded as infringing the principles of social justice or equal treatment. Moreover, it could not be overlooked that the Social Security Code 1999 had made provision for a second ‑ tier pension, based on individual contributions, in respect of persons born on or after 1 January 1960. It was also noteworthy that recently the maximum amount of pension had been increased to BGN 700. 77. The Government agreed that social security rights fell within the ambit of Article 1 of Protocol No. 1, but pointed out that that provision did not guarantee a particular amount of pension, and did not require States to choose a particular social security model. Even if it was theoretically possible to pay the applicants the full nominal amount of their pensions, there existed a number of factors that would make that difficult to achieve in practice. The population was getting older and the ratio between pensioners and persons in active employment was deteriorating. If the authorities opted to pay the full amount of pension, even if it exceeded the cap, it could result in a shortfall of funds to pay the pensions of others who had contributed less to the funding of the pension system. That could lead to a breach of the principle of equal treatment, which guaranteed a minimum revenue for each pensioner. All the more so in the midst of a severe economic and demographic crisis. The applicants could not maintain that they had had a legitimate expectation that they would receive the full amount of their pensions after 31 December 2003, because it was impossible to predict how the legislation would evolve in the future. Legislation was a product of social developments, which were rapidly changing. It was for the applicants to show that the cap on their pensions had caused them to suffer an individual and excessive burden. 78. In the Government’s view, the capping of pensions to 35% of the maximum monthly income for social security purposes was in the public interest. The pension system in Bulgaria was based on a pay ‑ as ‑ you ‑ go model, and the legislature’s intent was to guarantee a minimum amount of pension and the potential for it to increase. The existence of a pensions ceiling went hand in hand with the existence of a maximum income for social security purposes. It was intended to guarantee social justice, and was necessary for the sound financial management of the pension system. The Constitutional Court had made those points in its 1998 decision. 79. The applicants submitted that they had had a legitimate expectation that they would receive the full amount of their pensions, based on the contributions they had been required to make throughout their employment. After the entry into force of paragraph 6(1) of the transitional and concluding provisions of the Social Security Code 1999, they had expected that the cap on the maximum amount of pension would be lifted on 31 December 2003 and that from that date on they would receive the full amount of their pensions. The ensuing postponement of the lifting of the cap had accordingly amounted to an interference with their possessions. 80. The applicants did not dispute that that interference was lawful, but argued that it lacked a reasonable foundation. It was true that the Constitutional Court had held that the introduction of a pensions cap was a matter for the legislature’s discretion. However, the 2004 draft bill for the amendment of the Social Security Code 1999, which had permanently capped the pensions of all pensioners whose rights had accrued before 31 December 2009, had not been accompanied by any explanatory notes or by any debate in Parliament. The same went for the 2009 amendments to the Code. The assertions that the pensions ceiling was tied to the minimum amount of pension, helped to maintain it, and furthered social justice were not true. Even if it could be accepted that such a cap had been warranted to help the poorest pensioners scrape through the profound social and economic changes of the 1990s, it could not be maintained forever. 81. The real reasons for maintaining the cap could be gleaned from a number of interviews and public statements by officials, such as the director of the NSSI and several successive ministers of Labour and Social Policy. They were the perception that the public would not tolerate very high pensions and that the pension model existing under the Pensions Act 1957 had suffered from a number of defects. Neither of those reasons was a reasonable basis for the cap. The first was based on entirely populist considerations, which were moreover out of line with modern social attitudes. It was telling that a number of domestic institutions and organisations, plus five constitutional judges, were opposed to the cap. In that connection, it was also worth noting that the authorities were not doing enough to collect the social security contributions payable by those in active employment. The second reason was also unavailing. The applicants, like everyone else, had been bound by the provisions of the Pensions Act 1957 governing the basis for calculating the amount of social security contributions and retirement pensions. 82. Even if it could be accepted that the pensions cap pursued a legitimate aim, it was disproportionate, because, while failing to produce considerable savings for the pension system, it affected a very small minority of pensioners (about 2%) by significantly reducing the amount of their pensions. In that connection, sight should not be lost of the nature of the applicants’ employment, which had entailed higher levels of responsibility, privation, stress and risk, and hence higher remuneration. In addition, when permanently capping the applicants’ pensions with effect from 1 January 2004, the State had not offered them any form of compensation. 83. In their additional observations, the Government submitted that in as much as Article 1 of Protocol No. 1 did not guarantee a particular amount of pension the applicants’ complaint was incompatible ratione materiae. It was in the legislature’s discretion to choose a particular social security model. Faced with demographic and financial difficulties, Bulgaria had opted to limit the maximum amount of the first ‑ tier pension. However, it had made provision for a voluntary third ‑ tier pension, and there was no indication that the applicants had tried to avail themselves of that opportunity. It was also important to point out that the cap on their pensions had been increased several times, and that those of them who had served in the armed forces had not themselves paid pension contributions and had retired under very favourable conditions. The requisite fair balance had not therefore been upset to their detriment. 2. The Court’s assessment (a) Applicability of Article 1 of Protocol No. 1 84. The principles which apply generally in cases under Article 1 of Protocol No. 1 are equally relevant when it comes to pensions (see Andrejeva v. Latvia [GC], no. 55707/00, § 77, 18 February 2009, and, more recently, Stummer v. Austria [GC], no. 37452/02, § 82, 7 July 2011). Thus, that provision does not guarantee the right to acquire property (see, among other authorities, Van der Mussele v. Belgium, 23 November 1983, § 48, Series A no. 70; Slivenko v. Latvia (dec.) [GC], no. 48321/99, § 121, ECHR 2002 ‑ II; and Kopecký v. Slovakia [GC], no. 44912/98, § 35 (b), ECHR 2004 ‑ IX). Nor does it guarantee, as such, any right to a pension of a particular amount (see, among other authorities, Müller v. Austria, no. 5849/72, Commission’s report of 1 October 1975, Decisions and Reports (DR) 3, p. 25; T. v. Sweden, no. 10671/83, Commission decision of 4 March 1985, DR 42, p. 229; Janković v. Croatia (dec.), no. 43440/98, ECHR 2000 ‑ X; Kuna v. Germany (dec.), no. 52449/99, ECHR 2001 ‑ V (extracts); Lenz v. Germany (dec.), no. 40862/98, ECHR 2001 ‑ X; Kjartan Ásmundsson v. Iceland, no. 60669/00, § 39, ECHR 2004 ‑ IX; Apostolakis v. Greece, no. 39574/07, § 36, 22 October 2009; Wieczorek v. Poland, no. 18176/05, § 57, 8 December 2009; Poulain v. France (dec.), no. 52273/08, 8 February 2011; and Maggio and Others, cited above, § 55). However, where a Contracting State has in force legislation providing for the payment as of right of a pension – whether or not conditional on the prior payment of contributions – that legislation has to be regarded as generating a proprietary interest falling within the ambit of Article 1 of Protocol No. 1 for persons satisfying its requirements (see Carson and Others v. the United Kingdom [GC], no. 42184/05, § 64, ECHR 2010 ‑ ...). The reduction or the discontinuance of a pension may therefore constitute interference with possessions that needs to be justified (see Kjartan Ásmundsson, cited above, § 40; Rasmussen v. Poland, no. 38886/05, § 71, 28 April 2009; and Wieczorek, cited above, § 57). 85. In the instant case, the applicants’ pensions were first calculated in line with the general rules of the Pensions Act 1957 and subsequently of the Social Security Code 1999 (in the cases of those applicants who retired after 1 January 2000, solely the latter). Because the amounts produced by those calculations were, in the case of each applicant, above the pensions cap set out in section 47c of the Act and later in paragraph 6(1) of the transitional and concluding provisions of the Code, their pensions were trimmed to the level allowed by the cap (see paragraphs 7, 8, 10 ‑ 15, 17 ‑ 19, 21, 27 and 31 above). The cap may thus be regarded either as a provision limiting the amount of pension after it has been calculated under the general rules, and thus amounting to an interference with a “possession” of the applicants, or as part of the overall set of statutory rules governing the manner in which the amount of pension should be calculated, and thus amounting to a rule preventing the applicants from having any “possession” in relation to the surplus. 86. It should in addition be noted that when it first came into force on 1 January 2000 paragraph 6(1) set a temporal limitation on the pensions cap – 31 December 2003 (see paragraph 31 above). That limitation was removed with the December 2003 amendment, with the result that the cap became permanently applicable to all pensions granted before a certain date: initially 31 December 2009 and, following further amendments, 31 December 2011 and then 31 December 2013 (see paragraphs 34, 38 and 39 above). From this vantage point, it could be argued that, regardless of the position before or after, between 1 January 2000 and 23 December 2003 the applicants could be regarded as having harboured a legitimate expectation that the cap on their pensions would come to an end on 31 December 2003, and that the legislative amendment which took that expectation away amounted in its own right to an interference with their “possessions” (see, mutatis mutandis, Maurice v. France [GC], no. 11810/03, §§ 67 ‑ 71 and 79, ECHR 2005 ‑ IX; Draon v. France [GC], no. 1513/03, §§ 70 ‑ 72, 6 October 2005; and Hasani v. Croatia (dec.), no. 20844/09, 30 September 2010). 87. However, the Court does not consider it necessary to take a firm stance on those points, because it considers that there has been no breach of Article 1 of Protocol No. 1 for the reasons that follow (see Maggio and Others, cited above, § 59). It will therefore proceed on the assumption that Article 1 of Protocol No. 1 is applicable and that the pensions cap, in all its forms, can be regarded as an interference with the applicants’ rights under that provision. (b) Compliance with Article 1 of Protocol No. 1 88. The Court does not consider that the cap amounted to a “deprivation of possessions” within the meaning of the second sentence of the first paragraph of Article 1 of Protocol No. 1. It is rather to be regarded as an interference with the applicants’ right to the peaceful enjoyment of their possessions, within the meaning of the first sentence of the first paragraph (see Kjartan Ásmundsson, § 40, and Wieczorek, § 61, both cited above). 89. It was not in dispute between the parties that the interference was lawful in terms of both domestic and Convention law. The Court, noting that it was based on the unambiguous wording of section 47c of the Pensions Act 1957 and subsequently paragraph 6(1) of the transitional and concluding provisions of the Social Security Code 1999, provisions whose constitutionality was upheld by the Constitutional Court (see paragraphs 29 and 46 above), sees no reason to hold otherwise. 90. It remains to be established whether the interference served a legitimate public interest and was reasonably proportionate to the aim sought to be realised. 91. According to the Court’s case ‑ law, the national authorities, because of their direct knowledge of their society and its needs, are in principle better placed than the international judge to decide what is “in the public interest”. Under the Convention system, it is thus for those authorities to make the initial assessment as to the existence of a problem of public concern warranting measures interfering with the peaceful enjoyment of possessions. Moreover, the notion of “public interest” is necessarily extensive. In particular, the decision to enact laws concerning pensions or welfare benefits involves consideration of various economic and social issues. The margin of appreciation available to the legislature in implementing such policies should therefore be a wide one, and its judgment as to what is “in the public interest” should be respected unless that judgment is manifestly without reasonable foundation. However, any interference must also be reasonably proportionate to the aim sought to be realised. In other words, a “fair balance” must be struck between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights. That balance will be lacking where the person concerned has to bear an individual and excessive burden (see Wieczorek, cited above, §§ 59 ‑ 60, with further references). In that regard, it would also be important to verify whether an applicant’s right to derive benefits from the social security scheme in question has been infringed in a manner resulting in the impairment of the essence of his pension rights (see Domalewski v. Poland (dec.), no. 34610/97, ECHR 1999 ‑ V; Kjartan Ásmundsson, cited above, § 39 in fine; and Wieczorek, cited above, § 57 in fine ). On the other hand, it must not be overlooked that Article 1 of Protocol No. 1 does not restrict a State’s freedom to choose the type or amount of benefits that it provides under a social security scheme (see Stec and Others, cited above § 54; Stec and Others v. the United Kingdom [GC], no. 65731/01, § 53, ECHR 2006 ‑ VI; and Wieczorek, cited above, § 66 in limine ). 92. In the instant case, the applicants called into question the purpose of the cap, saying that it was not, as contended by the Government, based on considerations having to do with the financial viability of the pension system. It was rather a result of the perceptions that the public would not tolerate very high pensions and that the Pensions Act 1957 had made possible retirement on overly generous terms. The Court, for its part, notes that the cap obviously results in savings for the pension system (see the statistics quoted in paragraph 65 above). However, it does not find it necessary to determine whether those savings are indeed necessary to ensure the system’s financial viability. It observes that in upholding the cap the Constitutional Court took the view that it was based on the “requirements of social justice” (see paragraph 29 above). Even assuming that the applicants’ assertions as to the real purpose of the cap are correct, the Court does not consider that it was illegitimate for the Bulgarian legislature to have regard to social considerations, or that its judgment in that respect was manifestly without reasonable foundation. The pension systems of different countries vary in the relative emphasis that they place on redistributive vis ‑ à ‑ vis insurance elements. Comparative studies by the World Bank and the OECD show that while some Contracting States attach more importance to providing the same or very similar pension replacement rates to all workers, with a strong link between pensions and preretirement earnings, in others the accent is on pension adequacy, with little or no connection between pensions and preretirement earnings (see paragraphs 67 and 68 above). That is primarily a matter that falls to be decided by the national authorities, which have direct democratic legitimation and are better placed than an international court to evaluate local needs and conditions. According to the Court’s case ‑ law, in matters of general policy, on which opinions within a democratic society may reasonably differ widely, the determination of the domestic policymaker should be given special weight (see Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 97, ECHR 2003 ‑ VIII). The Court is therefore satisfied that the cap pursued a legitimate aim in the public interest. 93. This, however, does not entirely settle the issue. It must also be established whether there was a reasonable relationship of proportionality between the means employed and the aim sought to be realised. 94. On this point, the Court starts by noting that the redistributive function of the pension system can be achieved in various ways, such as putting in place progressive benefit ‑ calculation formulae, imposing ceilings on pension entitlements, or taxing high pensions. In Bulgaria, the legislature has chosen to exempt first ‑ and second ‑ tier pensions from taxation (see paragraphs 51 and 55 above), but has imposed a cap on the maximum amount of pension under the first tier. The Court is unable to find that this is in itself a disproportionate measure. It has in a number of cases accepted the possibility of reductions in social security entitlements (see Kjartan Ásmundsson, cited above, § 45; Hoogendijk v. the Netherlands (dec.), no. 58641/00, 6 January 2005; Goudswaard ‑ Van der Lans v. the Netherlands (dec.), no. 75255/01, ECHR 2005 ‑ XI; and Wieczorek, cited above, § 67). It has even countenanced pension caps similar to the one at issue (see Blanco Callejas v. Spain (dec.), no. 64100/00, 18 June 2002, and Buchheit and Meinberg v. Germany (dec.), nos. 51466/99 and 70130/01, 2 February 2006). So has the former Commission (see Beging v. Germany, no. 15376/89, decision of the Commission of 27 May 1991, unreported, and Kuhlmann v. Germany, no. 21519/93, Commission decision of 30 June 1993, unreported). The above ‑ mentioned comparative studies by the World Bank and the OECD show that ceilings on public pensions are far from being a uniquely Bulgarian phenomenon (see paragraph 66 above). In the present case, there are several factors that inform the Court’s assessment. 95. First, the applicants’ principal argument against the cap was that, unlike modern ‑ day workers, in respect of whom there exists a ceiling on pensionable earnings (see paragraph 54 above), they were bound to pay contributions on the full amount of their relatively high salaries; they were therefore entitled to pensions commensurate with those contributions. However, that argument does not stand up to examination. In the first place, it cannot be overlooked that until 1996, contributions were payable solely by employers, who were barred from deducting them from employees’ remunerations; that continues to be the case for military personnel, civil servants, and some other categories of State employees (see paragraphs 49 and 52 above). More importantly, the argument misconceives the relationship between social security contributions and first ‑ tier pensions in Bulgaria. Unlike the second ‑ and the third ‑ tier schemes, where contributions are directly linked to the expected benefit returns (see paragraph 52 above), first ‑ tier contributions did not and still do not have an exclusive link to retirement pensions. That is due to the unfunded, pay ‑ as ‑ you ‑ go character of the first pillar of the Bulgarian pension system, both under the Pension Act 1957 and under the Social Security Code 1999 (see paragraphs 49 and 53 above). That makes it impossible to regard the payment of higher social security contributions as a sufficient ground for entitlement to matching pension benefits (see, mutatis mutandis, Carson and Others, § 84, and Müller, at p. 31, §§ 29 ‑ 30, both cited above). Indeed, in the cases of some of the applicants – and of others in a similar situation – the bulk of those contributions was paid under a different economic regime, when the pension fund was an inseparable part of the general State budget (see paragraph 49 above), and at a time when the real value of the Bulgarian lev and the general framework of the Bulgarian economy were very different from what they are today. 96. Secondly, the Court cannot lose sight of the fact that the pensions cap was put in place and, more importantly, maintained at a time when the Bulgarian pension system was undergoing a comprehensive reform, as part of the country’s transition from a wholly State ‑ owned and centrally planned economy to private property and a market economy (see, mutatis mutandis, Credit Bank and Others v. Bulgaria (dec.), no. 40064/98, 30 April 2002, and Velikovi and Others v. Bulgaria, nos. 43278/98, 45437/99, 48014/99, 48380/99, 51362/99, 53367/99, 60036/00, 73465/01 and 194/02, § 166, 15 March 2007). In view of the changes in the manner of calculating the amounts of social security contributions and retirement pensions – in particular, the introduction of a ceiling on pensionable earnings (see paragraph 54 above) – the first tier of that pension system can be regarded as moving towards a global levelling of the amount of benefits provided. It is apparent that the new pension model in Bulgaria envisages the provision of higher retirement incomes through the second ‑ and third ‑ tier pension schemes, which, unlike the first ‑ tier scheme, are funded, defined ‑ contribution schemes (see paragraphs 52 and 53 above). In that context, the cap, as well as its extensions until the end of 2009, and then the end of 2011 and of 2013 (see paragraphs 34, 38 and 39 above), can be seen as a transitional measure accompanying the overall transformation of the pension system. The Court has in the past recognised that Contracting States have a wide margin of appreciation when passing laws in the context of a change of political and economic regime (see Jahn and Others v. Germany [GC], nos. 46720/99, 72203/01 and 72552/01, § 113, ECHR 2005 ‑ VI, with further references). It is true that the applicants, all of whom were born before 1 January 1960, are not eligible to be affiliated to the second ‑ tier scheme (see paragraph 52 above) and cannot therefore top up their pension earnings in that way. However, the Court cannot attach decisive importance to that, because that scheme is a funded, defined ‑ contribution one, with individual accounts; the amount of benefits it can provide is directly dependent on the amount and duration of the contributions of those affiliated to it. It is understandable that such a scheme should be open only to those who will be able to accumulate sufficient funds to finance their pensions. 97. Thirdly, particular emphasis needs to be placed on the fact that the applicants were obliged to endure a reasonable and commensurate reduction rather than a total loss of their pension entitlements. Indeed, they did not suffer an actual decrease in the monthly payments they received, but simply did not see the announced lifting of the pensions cap materialise – it appears that since retirement they have never received the uncapped amount of their pensions. Moreover, the cap, while sometimes – but not always – resulting in considerable reductions of the nominal amount of their monthly pensions, did not totally divest the applicants of their only means of subsistence. The applicants are, in the nature of things, the top earners among the more than two million persons in Bulgaria who are currently in receipt of a retirement pension. They can therefore hardly be regarded as being made to bear an excessive and disproportionate burden, or as having suffered an impairment of the essence of their pension rights (see, mutatis mutandis, M.V. and U ‑ M.S. v. Finland (dec.), no. 43189/98, 28 January 2003; Saarinen v. Finland (dec.), no. 69136/01, 28 January 2003; Banfield v. the United Kingdom (dec.), no. 6223/04, ECHR 2005 ‑ XI; Laloyaux v. Belgium (dec.), no. 73511/01, 9 March 2006; and Wieczorek, § 71; Hasani; and Maggio and Others, § 62, all cited above; and contrast Kjartan Ásmundsson, §§ 43 ‑ 45, and Apostolakis, §§ 39 ‑ 42, both cited above). 98. Fourthly, it cannot be overlooked that public pension schemes are based on the principle of solidarity between contributors and beneficiaries (see Ackermann and Fuhrmann v. Germany (dec.), no. 71477/01, 8 September 2005). Just like other social security schemes, they are an expression of a society’s solidarity with its vulnerable members (see Goudswaard ‑ Van der Lans, and Wieczorek, § 64, both cited above), and cannot be likened to private insurance schemes (see Müller, cited above, at p. 32, § 31). Indeed, as already noted (see paragraph 92 above), the pension systems of different countries vary in the relative emphasis that they place on redistributive vis ‑ à ‑ vis insurance elements. 99. Lastly, it cannot be overlooked that the amount of the cap and the manner in which it is calculated have evolved over the years. Initially, the maximum pension was tied to the social pension, not being able to exceed it by more than three times (see paragraph 27 above). In 2000, that ceiling was raised to four times the social pension for old age (see paragraph 31 above). In 2003, the cap was tied to the ceiling on pensionable earnings and the average estimated pension replacement rate (see paragraph 34 above). It has thus been gradually increased throughout the years, with the result that, as a general trend, considerably fewer pensioners are affected by it (see paragraphs 28, 32, 37 and 65 above). 100. In view of those considerations, the Court concludes that the impugned cap on the maximum amount of pension falls within Bulgaria’s margin of appreciation in regulating its social security policy. 101. There has therefore been no violation of Article 1 of Protocol No. 1. II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION READ IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL No. 1 102. The applicants also complained under Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1 that they were victims of a two ‑ fold discrimination: firstly, in relation to those pensioners whose pensions fell below the cap and who thus remained unaffected by it, and secondly, in relation to the high-ranking officials whose pensions were exempted from the cap by virtue of paragraph 6(3) of the transitional and concluding provisions of the Social Security Code 1999 (see paragraph 40 above). 103. Article 14 of the Convention provides as follows: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” A. Admissibility 104. The Government pointed out that only Mr Atanasov, and none of the other applicants, had brought proceedings before the Commission for Protection Against Discrimination, at the close of which the Commission had recommended to Parliament to repeal the offending statutory provisions. The Government secondly argued that the applicants could have brought a claim under section 71(1) of the Protection Against Discrimination Act and obtained an award of damages. 105. The applicants observed that the Commission’s recommendation was not binding for Parliament. Even if Parliament chose to act on it and repeal the impugned provisions, that would not provide the applicants with any redress in respect of past losses. As for the possibility to bring a claim under the Protection Against Discrimination Act, it had to be borne in mind that under section 74(2), where the alleged damage was a result of actions or omissions of State bodies, those concerned had to bring proceedings under the State Responsibility for Damage Act, which did not envisage the liability of Parliament. It was therefore not possible to pursue such a claim with success. 106. Concerning the proceedings before the Commission for Protection Against Discrimination, the Court notes that that Commission cannot compel Parliament to repeal or amend legislation. It can – and in fact did – only make recommendations in that regard (see paragraphs 58, 59 and 61 above and, mutatis mutandis, Hobbs v. the United Kingdom, no. 63684/00, 18 June 2002; Burden v. the United Kingdom [GC], no. 13378/05, § 40, ECHR 2008 ‑ ...; and A, B and C v. Ireland [GC], no. 25579/05, § 150, 16 December 2010). The Government have not cited any examples of steps having been taken to amend statutory provisions as a result of recommendations by the Commission (contrast Burden, cited above, § 41). Therefore, in as much as the alleged breach stemmed directly from the wording of the provision concerned – paragraph 6(1) and (3) of the transitional and concluding provisions of the Social Security Code 1999 – the proceedings before the Commission cannot be regarded as an effective remedy. 107. As for the second limb of the Government’s objection, the Court again notes that the alleged discrimination stemmed from the express wording of statutory provisions. In those circumstances, and having regard to the fact that under Bulgarian law one of the prerequisites for successfully pursuing a tort claim is to establish the wrongfulness of the conduct causing the damage (see Zlínsat, spol. s r.o. v. Bulgaria, no. 57785/00, §§ 50 and 56, 15 June 2006), the Court is not persuaded that such a claim would have had any prospect of success. Moreover, the Government have not specified the defendant to such a claim, or cited any decisions of the Bulgarian courts showing its practicability in that context. 108. The Government’s objection of non ‑ exhaustion of domestic remedies must therefore be rejected. 109. The Court further finds that the complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. Any issues having to do with its compatibility ratione materiae with the provisions of the Convention are more appropriately addressed at the merits stage. The complaint must therefore be declared admissible. B. Merits 1. The parties’ submissions 110. The Government submitted that the exemption of persons who have held high office from the pensions cap did not amount to discrimination, for the reasons set out in the decision of the Commission for Protection Against Discrimination of 17 September 2009 (see paragraph 60 above). In any event, that exemption did not directly affect the applicants because they would not benefit from its cancellation. The different treatment accorded to persons who have held high office was justified by the nature of their duties, which were closely related to the country’s government. Only persons who had held one of a small number of very high posts were exempted from the cap; all of them had been barred by law from taking up additional employment. Nor could it be said that the cap was discriminatory vis-à-vis other pensioners whose pensions fell below it. 111. The applicants submitted that they were being treated differently both from pensioners who had had lower salaries and whose pensions thus fell below the cap, and from the high officials to whose pensions the cap did not apply. That difference in treatment concerned rights protected under Article 1 of Protocol No. 1, and could therefore be examined under Article 14. There were no grounds to treat the applicants differently from pensioners whose pensions fell below the cap, for the same reasons as those set out in relation to the complaint under Article 1 of Protocol No. 1. That differential treatment did not pursue a legitimate aim. However, even if it were to be accepted that the money saved as a result of the cap could be used to make payments to other pensioners, the effects of the measure were disproportionate. The interference with the applicants’ pension rights, which had become permanent, was quite serious, because they received only a fraction of their full pensions; at the same time, capping the pensions of only 2% of all pensioners could not have a significant effect on the pensions of others. In 2009 those arguments had led the Commission for Protection Against Discrimination to find that the cap amounted to indirect discrimination. Lastly, the applicants submitted that it was not justified to treat them differently from persons who had held high office. Like them the applicants had been subjected to restrictions regarding the taking up of new employment. 2. The Court’s assessment (a) Applicability of Article 14 of the Convention 112. Article 14 complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. However, its application does not necessarily presuppose the violation of one of the substantive rights guaranteed by the Convention. The prohibition of discrimination in Article 14 thus extends beyond the enjoyment of the rights and freedoms which the Convention and its Protocols require each State to guarantee. It applies also to those additional rights, falling within the general scope of any Article of the Convention, for which the State has voluntarily decided to provide. It is necessary but also sufficient for the facts of the case to fall “within the ambit” of one or more of the Convention Articles (see Carson and Others, § 63, and Stummer, § 81, both cited above). 113. In line with its approach under Article 1 of Protocol No. 1 taken alone (see paragraph 87 above), the Court does not consider it necessary to determine whether the facts of the case fall within the ambit of that provision. Even assuming that they do, and that Article 14 is thus applicable, the Court finds that there has been no violation of that provision for the reasons that follow. (b) Alleged discrimination vis ‑ à ‑ vis pensioners whose pensions fall below the cap and are thus not affected by it 114. As to the applicants’ first head of complaint – that they are being treated differently from pensioners who had lower salaries and whose pensions thus now fall below the cap – the Court considers that it was inevitable that the contested legislation, being designed to cap pensions in excess of a certain sum, should affect pensioners who fell within that particular category rather than all others. The aim pursued by the legislation has been held by the Court to be a legitimate one in the public interest (see paragraph 92 above). According to the applicants, however, that is not sufficient to justify the distinction since the pensions cap has a disproportionate and serious impact on them. This amounts in substance to the same grievance, albeit seen from another angle, as that which has been examined under Article 1 of Protocol No. 1. Although that complaint could equally be argued in terms of indirect discrimination, the Court sees no cause for arriving at a different conclusion in relation to Article 14 of the Convention: having regard to its margin of appreciation, the Bulgarian legislature did not transgress the principle of proportionality. (c) Alleged discrimination vis ‑ à ‑ vis individuals who have held high office 115. Only differences in treatment based on an identifiable characteristic, or “status”, are capable of amounting to discrimination within the meaning of Article 14. However, the list set out in Article 14 is illustrative and not exhaustive, as is shown by the words “any ground such as” (in French “ notamment ”) (see, among other authorities, Carson and Others, cited above, §§ 61 and 70). The words “other status” (and a fortiori the French “ toute autre situation ”) have been given a wide meaning so as to include, in certain circumstances, military rank (see Engel and Others v. the Netherlands, 8 June 1976, § 72, Series A no. 22), or being a former KGB officer (see Sidabras and Džiautas v. Lithuania, nos. 55480/00 and 59330/00, §§ 53 ‑ 62, ECHR 2004 ‑ VIII). The holding, or otherwise, of high office can likewise be regarded as “other status” for the purposes of Article 14. 116. However, for an issue to arise under Article 14 there must be a difference in the treatment of persons in analogous, or relevantly similar, situations (see Burden, § 60, and Carson and Others, §§ 61 and 83, both cited above). In other words, the requirement to demonstrate an analogous position does not require that the comparator groups be identical. An applicant must demonstrate that, having regard to the particular nature of his or her complaint, he or she was in a relevantly similar situation to others treated differently (see Clift v. the United Kingdom, no. 7205/07, § 66, 13 July 2010). 117. It must therefore be determined whether the applicants have been able to demonstrate that, for pension purposes, they are in a relevantly similar situation to retirees who have held high office. The applicants’ main argument in support of their assertion that they are in such a situation was in essence that it was impossible to draw a valid distinction, for pension purposes, between the character of the respective employments of the two groups. However, the Court is not prepared to draw conclusions based on the nature of the undoubtedly demanding and important tasks performed by the applicants and the tasks of the holders of the high-ranking posts in issue: the President or Vice ‑ President of the Republic of Bulgaria, the Speaker of the National Assembly, the Prime Minister, and the judges in the Constitutional Court (see paragraph 40 above). It is not for an international court to make pronouncements on such matters; those are policy judgments which are in principle reserved for the national authorities, which have direct democratic legitimation and are better placed than an international court to evaluate local needs and conditions (see, mutatis mutandis, Hatton and Others, cited above, § 97). It should be noted in that connection that both the Court and the former Commission have on a number of occasions countenanced the differences that some Contracting States draw, for pension purposes, between civil servants and private employees (see X v. Austria, no. 7624/76, Commission decision of 6 July 1977, DR 19, p. 100, at p. 106; K. v. Germany, no. 11203/84, Commission decision of 5 May 1986, unreported; Hesse ‑ Anger and Anger v. Germany (dec.), no. 45835/99, 17 May 2001; Matheis v. Germany (dec.), no. 73711/01, 1 February 2005; and Ackermann and Fuhrmann, cited above). The Court and the former Commission have also acknowledged, albeit in different contexts, the differences between other professions, such as lawyers in private practice and judicial and parajudicial professions (see Van der Mussele, cited above, § 46), lawyers and chartered public accountants (see Liebscher and Others v. Austria, no. 25170/94, Commission decision of 12 April 1996, unreported), and engineers and other liberal professions (see Allesch and Others v. Austria, no. 18168/91, Commission decision of 1 December 1993, unreported). (d) Conclusion 118. In view of the foregoing considerations, the Court concludes that there has been no violation of Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1. | The Court held that there had been no violation of Article 1 of Protocol No. 1 to the Convention, finding that the question of a cap on the maximum amount of pensions was a question for Bulgaria to regulate in its social security policy. The Court first noted that the cap pursued a legitimate aim in the public interest and had obviously resulted in savings for the Bulgarian pension system. Furthermore, the regard for social considerations of the Bulgarian legislature and judiciary had been reasonably justified. According to World Bank and OECD studies, the pension systems of different countries varied and ceilings on public pensions were not a uniquely Bulgarian phenomenon. The Court also stressed that the system to follow in each country was a matter for the national authorities, which were better placed than an international court to evaluate local needs and conditions. Then, examining whether the authorities had drawn a fair balance between the general public interest and the needs of the applicants, the Court observed in particular that, in their case, the bulk of those contributions had been paid under a different economic regime when the pension fund had been an inseparable part of the general State budget. Furthermore, the pension cap had been maintained at a time when the Bulgarian pension system underwent a comprehensive reform as part of the country’s transition from a wholly State-owned and centrally planned economy to private property and a market economy. Maintaining the cap could be seen as a transitional measure accompanying the overall transformation of the pension system. In this respect, the Court recalled that it had in the past recognised that States had a wide discretion when passing laws in the context of a change of political or economic regime. In addition, the applicants had had to endure a reasonable reduction and not a total loss of their pension entitlements. The applicants, being top earners among more than two million Bulgarian pensioners, could not be regarded as being made to bear an excessive and disproportionate burden as a result of the pension cap. Moreover, public pension schemes were based on the principle of solidarity between contributors and beneficiaries. Finally, the amount of the cap had gradually changed, with the effect that the maximum amount of pension had increased over the years. The result was that, as a general trend, fewer pensioners were affected by the cap. In this case the Court also held that there had been no violation of Article 14 (prohibition of discrimination) of the Convention read in conjunction with Article 1 of Protocol No. 1. In this respect, the Court noted in particular that it was not its role to compare the applicants with pensioners such as the President or Vice-President of the Republic, to whom the pension cap did not apply. Rather, that was a policy judgment which was reserved in principle for the national authorities. |
375 | Contact with fellow inmates | RELEVANT LEGAL FRAMEWORK AND PRACTICE DOMESTIC LAW AND PRACTICECode of Enforcement of Criminal Sentences of 2003 (with further amendments) Code of Enforcement of Criminal Sentences of 2003 (with further amendments) Code of Enforcement of Criminal Sentences of 2003 (with further amendments) 22. Article 107 provides for the general rights and obligations of prisoners. It prohibits, in particular, “communication with fellow prisoners or other persons in breach of the isolation rules or asking them to carry out unlawful actions” (§ 4). 23. Article 132 contains a list of disciplinary sanctions applicable to prisoners, with a warning being one of those sanctions. Its definition ‑ “a written warning about applying a specific disciplinary sanction to [a prisoner] in case of a repeated violation” – was added to the Code in September 2016 [1]. 24. Article 135, as worded before the above-mentioned amendments, listed the prison officials empowered to apply sanctions and incentives in respect of prisoners. The amended version, in force since April 2017, provides that, in the case of breaches of prison rules by a prisoner, a permanent disciplinary commission, consisting of the prison governor, his deputies, and heads of the prison services whose staff are in direct contact with prisoners, must institute disciplinary proceedings in respect of that prisoner and deliver its decision after a hearing. The prisoner concerned must be notified of that hearing at least twenty-four hours in advance. He or she has the right to be represented by a lawyer of his or her choice or, if unable to hire a lawyer, to apply for legal aid with the prison administration’s assistance. The prisoner and/or his or her lawyer has the right: to receive access to all related information and documents at least twenty-four hours before the hearing; to attend that hearing; to study the case file and to make copies thereof; to give explanations, and lodge objections and applications both orally and in writing; to submit evidence; and to request, at least twenty ‑ four hours before the hearing, the attendance of persons whose presence is deemed necessary to establish the factual circumstances or the correct disciplinary measures. The disciplinary commission’s decisions are taken by majority and must be duly reasoned. 25. Article 151 concerns imprisonment conditions for those serving a life sentence. They are usually accommodated in cells for two inmates (§ 1). The general provisions on prisoners’ rights and obligations under Article 107 are also applicable to this category of prisoners (§ 2). Life prisoners are entitled to a one-hour outdoor walk (§ 5). Subject to “diligent behaviour and attitude to work”, they may be entitled to group educational, cultural and sporting activities after serving five years in prison (§ 6 ). Before October 2016, they had to serve at least fifteen years to be eligible for the above-mentioned group activities [2]. 26. Article 151-1, which was added to the Code in January 2010, concerns changes to the conditions of detention of life prisoners. It provides that male life prisoners may be transferred from cell-type premises shared by two inmates to multi-occupancy cell-type premises of a maximum-security prison, with permission to participate in group educational, cultural and sporting activities, after having de facto served at least five years of their sentence in the premises of the first-mentioned type. Before the amendments of 8 April 2014 that period had been at least fifteen years [3]. In addition, life prisoners may be transferred from multi-occupancy cell-type premises to ordinary residential premises in a maximum-security prison after having de facto served at least five years of their sentence in the premises of the first ‑ mentioned type. Code of Administrative Justice of 2005 27. Article 17 § 2, in the wording of the Code prior to the amendments of 3 October 2017, provided that administrative courts had jurisdiction over claims by individuals or legal entities against public authorities regarding the authorities’ decisions, actions or omissions. The amended version, which is presently in force (Article 19 § 1 [4] ), reproduces the above provision with the following supplemental wording: “unless a different judicial forum is legally prescribed for such disputes”. Code of Criminal Procedure of 1960 (repealed with effect from 20 November 2012) 28. Under Article 409 § 1, it was for the court that delivered a judgment to “resolve any issues concerning doubts or contradictions in respect of the enforcement of that judgment”. Code of Criminal Procedure of 2012 (in force since 20 November 2012) 29. Article 537 lists issues to be resolved by the courts during the enforcement of sentences, whereas Article 539 provides for procedures to be followed and specifies which courts have jurisdiction to deal with which issues. In September 2016 those provisions were amended [5] as follows: - paragraph (13-1) was added to Article 537 stating that the courts referred to in Article 539 had jurisdiction to examine complaints regarding the prison administration’s decisions, actions or omissions; and - Article 539 was amended accordingly: the amended version states that local courts in the vicinity of prisons are to deal with the above-mentioned issues. Internal Regulations of Penal Institutions ( Правила внутрішнього розпорядку установ виконання покарань ) 30. The Internal Regulations of Penal Institutions of 2003 (repealed with effect from 23 January 2015) prohibited prisoners’ “communication with fellow prisoners or other persons in breach of the isolation rules or asking them to carry out unlawful actions” (section 29). Life prisoners were also prohibited from “entering into contact with inmates detained in other cells” (section 23). 31. The subsequent versions of the Regulations of 2014 (in force from 23 January 2015 to 14 September 2018) and of 2018 (currently in force) retained only the first-mentioned restriction applicable to all prisoners. Domestic case-law 32. The Government provided a copy of a decision of the Sumy Circuit Administrative Court of 8 August 2018, in which a life prisoner’s claim against the prison administration had been granted. More specifically, on 29 November 2017 the disciplinary commission of Romny Prison no. 56, in which the claimant in that case had served his sentence [6], had decided that he should be disciplined for trying to enter into contact with other prisoners in the prison courtyard in breach of the isolation rules and thus acting contrary to Article 107 § 4 of the Code of Enforcement of Criminal Sentences. The sanction applied was “a preventive conversation”. The court noted that the disciplinary commission had not explained what the attempt of “entering into contact” had consisted of and why it had been in breach of the isolation rules. Furthermore, “a preventive conversation” was not among the applicable sanctions. The disciplinary commission’s decision was therefore quashed as unlawful. 33. The applicant provided copies of numerous judicial decisions from 2010 to 2016, by which administrative courts had declined jurisdiction over matters relating to the imposition of disciplinary sanctions on prisoners. international material 34. The relevant reports and recommendations of the Committee of Ministers of the Council of Europe and the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) are quoted in N.T. v. Russia (no. 14727/11, §§ 25-28 and 30-31, 2 June 2020). 35. The CPT carried out a visit to Ukraine from 4 to 13 August 2020, during which it studied, in particular, the situation of life prisoners in one prison. The relevant extract from its report (CPT/Inf (2020) 40) reads as follows (footnotes omitted): “49. The CPT was very concerned to note that, despite the Committee’s long-standing recommendations, for the great majority of life-sentenced prisoners at Colony No. 100 (i.e. those accommodated in the old unit) the regime had not improved. They continued to be locked up in their cells for 23 hours per day (many of them doing in-cell work), their only out-of-cell activity being one hour of outdoor exercise which was taken on a cell-by-cell basis in small (some 13 m 2 ) cubicles. As in the past, these prisoners were not allowed to associate with life-sentenced prisoners from other cells. The CPT once again calls upon the Ukrainian authorities to develop the regime for life-sentenced prisoners at Colony No. 100, in particular by providing a range of out-of-cell communal activities. The Committee also recommends that steps be taken at this establishment to enlarge exercise yards for life-sentenced prisoners (so as to allow real physical exertion) and to ensure that such prisoners are as a rule allowed to have contact with inmates from other cells (including during outdoor exercise). 50. According to Section 151-1 of the Criminal Executive Code, after having served at least five years of imprisonment and following an assessment of their individual behaviour and attitude to work, life-sentenced prisoners may be transferred from smaller cell-type premises to multiple-occupancy cells/dormitories in a maximum ‑ security prison, allowing them to participate in group activities (educational, cultural and sports), and further progress to ordinary prisoner accommodation in a maximum-security prison after another five years of imprisonment. In other words, having served ten years of their sentence, life-sentenced prisoners can, in principle, be accommodated together with other prisoners. Nevertheless, the general rule remains the segregation of life-sentenced prisoners. The CPT must therefore reiterate that the placement of persons sentenced to life imprisonment should be the result of a comprehensive and ongoing risk and needs assessment, and not merely a result of their sentence. In this context, it is difficult to justify all life-sentenced prisoners being required to serve at least the first ten years of their sentence segregated from the rest of inmate population. The Committee recommends that the Ukrainian authorities review again the legislation with a view to completely abolishing the segregation of persons sentenced to life imprisonment. ” 36. The Ukrainian Government’s response to the above CPT report, which was published on 18 March 2021, included the following observations: “143. According to the law, life-sentenced prisoners shall be kept in strict isolation. Communication with prisoners from other cells is not provided by the law. According to Article 151 of the CEC, life-sentenced prisoners are placed in solitary confinement primarily with two persons in each. Its living space is at least 4 m 2 per one person. 144. According to the daily schedule, life-sentenced prisoners are permitted to have daily 1-hour walk, and ones with active tuberculosis are given 2-hour walk accordingly. The exercise yards are equipped with a crossbar and parallel bars for exercise. 145. In order to ensure the right of the prisoners convicted to life imprisonment to daily 1 hour outside walking on fresh air, the Temnivska Colony No. 100 has 9 walking yards. Area of each walking yard is not less than 12 m 2. Walking yards are located on the territory of the maximum-security sector and built taking into account 3m 2 per each person and no less than 25% of the general places for prisoners in that sector. 146. To ensure the right of life-sentenced prisoners to labour, they, where necessary, are engaged in work that does not require additional special equipment, directly in cells. 147. According to provisions of Articles 100, 151-1 of the CEC, depending on behaviour and attitude to labour, if he/she has such, and education, the life-sentenced prisoners after serving not less than 5 years of imprisonment in the solitary confinement cell (where 2 prisoners are held) may be transferred to the large-capacity confinement cell of the maximum security sector within the prison. After serving another 5 years there such category of prisoners may be transferred to ordinary living rooms of the maximum-security level prison. 148. Article 151 (2,6) of the CEC envisages that life-sentenced prisoners shall have the same rights and obligations of ordinary prisoners prescribed in Article 107 of the CEC. If the prisoner demonstrates excellent behaviour and attitude to labour, after serving 5 years of imprisonment he/she might be allowed to participate in group events of educational, cultural, physical and recreational character.” THE LAW THE GOVERNMENT’S OBJECTION REGARDING ALLEGED ABUSE of the right of application 37. The Government submitted that the applicant had knowingly misled the Court as regards the factual circumstances of his case. They made the following observations to support that argument. Firstly, in his application form the applicant had stated that he had greeted a fellow prisoner on 13 June 2009, whereas in his written explanation to the prison administration of that date he had noted that he did not know that prisoner. Secondly, the applicant had failed to provide the Court with the envelope proving that the ruling of the Kharkiv Administrative Court of Appeal of 13 October 2010 had indeed been sent to him with a delay. 38. The applicant submitted that he had had no intention of misleading the Court and that there were no gaps or contradictions in the summary of the facts provided by him. He also argued that he had enclosed the envelope referred to by the Government with his appeal on points of law and therefore had not been able to send it to the Court. 39. The relevant principles as regards the abuse of the right of application are set out, for example, in Gross v. Switzerland ([GC], no. 67810/10, § 28, ECHR 2014). In particular, the submission of incomplete and therefore misleading information may amount to abuse of the right of application, especially if the information concerns the very core of the case and no sufficient explanation is given for the failure to disclose that information. However, the applicant’s intention to mislead the Court must always be established with sufficient certainty (ibid.). 40. In the present case the applicant complained about the prohibition of any communication among prisoners from different cells and referred, by way of example, to the incident of 13 June 2009. The Court considers it to be of no relevance for the substance of the applicant’s complaint whether he knew the fellow prisoner in question or whether they saw each other for the first time in the prison courtyard on that date. The absence of the envelope mentioned by the Government is equally irrelevant. 41. Given that the issues invoked by the Government cannot be regarded as “concerning the very core of the case” and in the absence of any indication of the applicant’s intention to mislead the Court, the Government’s objection must be dismissed in its entirety (compare Beg S.p.a. v. Italy, no. 5312/11, §§ 74-81, 20 May 2021). ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 42. The applicant complained that the permanent prohibition of life prisoners having any contact with inmates from other cells, whenever they happened to see each other during outdoor walks or on other rare occasions outside their cells, was in breach of Article 3 of the Convention, which reads as follows: Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Admissibility 43. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. MeritsSubmissions by the parties Submissions by the parties Submissions by the parties (a) The applicant 44. The applicant submitted that, being a life prisoner, he had been prohibited from talking or having any interaction with other prisoners outside his cell for over fifteen years. He contended that the authorities had never even tried to justify that measure by security-related or other considerations, and that it was automatically applicable to all life-sentenced prisoners. The situation did not change with the repeal, in January 2015, of section 23 of the Internal Regulations of Penal Institutions, which prohibited life prisoners from “entering into contact with inmates detained in other cells”. 45. The applicant further submitted that the ban in question had led to the deterioration of his mental health, making him feel utter helplessness and loneliness to an extent which he perceived as nothing other than a social death. He drew the Court’s attention to the fact that he had been confined to his cell for most of the time without any meaningful activity, sharing the cell with only one inmate until August 2019 and with two inmates thereafter. In his opinion, the conditions of his detention had de facto amounted to solitary confinement. (b) The Government 46. The Government submitted that solitary confinement was not necessarily contrary to Article 3 of the Convention. They observed, with reference to Ramirez Sanchez v. France ([GC], no. 59450/00, § 123, ECHR 2006 ‑ IX), that the prohibition of contact with other prisoners for security, disciplinary or protective reasons did not in itself amount to inhuman treatment or punishment. 47. The Government further contended that the applicant in the present case was subject to supervision which was warranted by his status as a life prisoner. They observed that the prohibition of contact with other prisoners had been provided for by sections 23 and 29 of the Internal Prison Regulations. Having breached those provisions, the applicant had been disciplined in accordance with Article 132 of the Code of Enforcement of Criminal Sentences. 48. The Government next observed that the Code of Enforcement of Criminal Sentences and the Internal Regulations of Penal Institutions had been considerably amended with a view to their humanisation and that, as a result, life prisoners’ rights had been virtually equalised with those of convicts serving a fixed-term prison sentence. The Government further referred to Article 151-1 of the Code of Enforcement of Criminal Sentences which provided for the possibility of the conditions of imprisonment of life prisoners changing with the passage of time (see paragraph 26 above). (c) The third party 49. The European Prison Litigation Network (EPLN) submitted that the negative impact of social isolation on prisoners’ health was confirmed by research in the field of psychiatry. 50. They further contended that the absolute ban on communication among prisoners from different cells was a feature of an even more drastic segregation of life prisoners than the one criticised by the Court in N.T. v. Russia (no. 14727/11, 2 June 2020). 51. Lastly, the EPLN argued that, according to studies in the field of philosophy, depriving an individual of the right to speak, under penalty of punishment, was equal to the denial of his or her right to exist in the world. The Court’s assessment (a) General principles established in the Court’s case-law 52. The Court’s approach to the assessment of whether alleged ill ‑ treatment, which must attain a minimum level of severity, falls within Article 3 of the Convention is summarised, in particular, in Khlaifia and Others v. Italy ([GC], no. 16483/12, §§ 159-60, 15 December 2016). 53. When assessing conditions of detention, account has to be taken of the cumulative effects of these conditions, as well as of specific allegations made by the applicant. The length of the period during which a person is detained in the particular conditions also has to be considered (see Georgia v. Russia (II) [GC], no. 38263/08, § 240, 21 January 2021, and the case-law references therein). 54. The Court has often stressed that respect for human dignity is part of the very essence of the Convention (see, for example, Vinter and Others v. the United Kingdom [GC], nos. 66069/09 and 2 others, § 113, ECHR 2013 (extracts); Bouyid v. Belgium [GC], no. 23380/09, § 89, ECHR 2015; and Khlaifia and Others, cited above, § 158). 55. The State must ensure that a person is detained in conditions which are compatible with respect for human dignity, that the manner and method of the execution of the measure do not subject him or her to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his or her health and well-being are adequately secured (see Muršić v. Croatia [GC], no. 7334/13, § 99, 20 October 2016, with further case-law references). 56. The Court has also consistently emphasised in that context the importance of the principle of rehabilitation, that is, the reintegration into society of a convicted person, which is fully applicable to life prisoners, who must have a prospect of release and who should therefore be allowed to rehabilitate themselves (see N.T., cited above, § 41, with further case-law references). As to the extent of any obligations incumbent on States in this regard, the Court has held that even though States are not responsible for achieving the rehabilitation of life prisoners, they nevertheless have a duty to make it possible for such prisoners to rehabilitate themselves. The obligation to offer that possibility is to be seen as an obligation of means, not one of result. However, it entails a positive obligation to secure prison regimes to life prisoners which are compatible with the aim of rehabilitation and enable such prisoners to make progress towards their rehabilitation. Such an obligation exists in situations where it is the prison regime or the conditions of detention which obstruct rehabilitation (see Murray v. the Netherlands [GC], no. 10511/10, § 104, 26 April 2016, with further references). 57. Lastly, according to the Court’s case-law, prisoners’ isolation should be justified by particular security reasons obtaining throughout the duration of this measure. It can hardly be accepted that this is automatically necessary solely on account of a person’s sentence to life imprisonment. The automatic segregation of life prisoners from the rest of the prison community and from each other, in particular where no comprehensive activities outside the cell or stimulus inside the cell are available, may in itself raise an issue under Article 3 of the Convention. Moreover, it runs counter to two instruments to which the Court attaches considerable importance despite their non-binding character: Rule 25.2 of the 2006 European Prison Rules [7], which says that the prison regime should allow “all prisoners to spend as many hours a day outside their cells as are necessary for an adequate level of human and social interaction”, and point 7 of Recommendation 2003(23) on the management by prison administrations of life sentence and other long-term prisoners, which says that “[c]onsideration should be given to not segregating life sentence and other long-term prisoners on the sole ground of their sentence” (see Harakchiev and Tolumov v. Bulgaria, nos. 15018/11 and 61199/12, § 204, ECHR 2014 (extracts), with further reference). 57bis. The Court refers as a preliminary to its extensive case-law in relation to life prisoners in Ukraine which demonstrates that they are subject to a very restrictive prison regime, are segregated from other prisoners and spend up to twenty-three hours per day in their cells, which are usually double or triple occupancy, with little in terms of organised activities and association (see Petukhov v. Ukraine (no. 2), no. 41216/13, § 182, 12 March 2019). They are also often detained in conditions of serious lack of personal space combined with poor sanitary conditions and lack of privacy (see, for example, Sili v. Ukraine, no. 42903/14, §§ 27, 48-51, 8 July 2021, Guk v. Ukraine, no. 16995/05 [Committee], §§ 83-86, 8 December 2016, and Dolgikh v. Ukraine, no. 34697/04 [Committee], §§ 48-50, 11 July 2019) and, until the legislative amendments of May 2014, were subject to blanket severe restrictions on family visits (see Trosin v. Ukraine, no. 39758/05, §§ 40-47, 23 February 2012, and, Bigun v. Ukraine, no. 30315/10, §§ 18 and 42-50, 21 March 2019). Moreover, the domestic law does not provide them with any possibility of release other than presidential clemency, which the Court found to be in breach of Article 3 of the Convention ( Petukhov (no. 2), cited above, §§ 169-87). (b) Application of the above principles to the present case 58. Turning to the present case, the Court notes at the outset the Government’s reference to the legislative amendments aimed at the humanisation of life prisoners’ conditions of detention (see paragraph 48 above). Indeed, section 23 of the Internal Regulations of Penal Institutions prohibiting prisoners from “entering into contact with inmates detailed in other cells” was repealed with effect from January 2015 (see paragraphs 30 ‑ 31 above). Furthermore, three major legislative amendments, which were adopted in September 2016, improved the procedures in respect of incentives and sanctions in prisons, clarified the jurisdiction of administrative courts to examine complaints regarding the decisions, actions or omissions of prison administrations, and reduced from fifteen to five years the minimum period of imprisonment for life prisoners to become eligible for group educational, cultural and sporting activities (see paragraphs 23, 25-26 and 29 above). The Government did not submit, however, that the aforementioned amendments had had any impact on the rules which applied to a life prisoner like the applicant from 2004 until 2015 and, it seems, which applied to him in practice also beyond. The Court observes that the applicant’s position according to which the ban on contacting prisoners from other cells continued to be the firm practice of the prison authorities after 2015 finds support in the text of the Government’s response to the report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) following the CPT’s visit to Ukraine in August 2020, in which they stated that “life-sentenced prisoners [were to] be kept in strict isolation” and that “[c]ommunication with prisoners from other cells [was] not provided by the law” (see paragraph 36 above). 59. The Court therefore considers it established that the ban in question has been applicable to the applicant for at least ten years (until the repeal, with effect from January 2015, of section 23 of the Internal Regulations of Penal Institutions) and considers it very likely that it continued to apply after that. 60. Even though the applicant shared his cell with one inmate until August 2019 and with two inmates thereafter, his situation can only be described as systemic segregation (see, for comparison, N.T., cited above, § 44, in which the applicant, a life-sentenced prisoner, was detained in a double cell; and Matiošaitis and Others v. Lithuania, nos. 22662/13 and 7 others, § 179, 23 May 2017, in which the applicants served their life sentences in “small isolation groups”). 61. According to the information provided by the prison authorities, during all those years the applicant has remained confined to his cell twenty ‑ two to twenty-four hours per day, without any activities (see paragraph 21 above). The daily one-hour outdoor walks presented the only possibility for him to have some social interaction with other inmates. However, he was denied human contact with prisoners from other cells altogether during those walks. The Court observes that prohibiting prisoners from talking to each other during the scarce time spent outside their cells runs contrary to the requirement of the European Prisons Rules that “all prisoners [should] spend as many hours a day outside their cells as are necessary for an adequate level of human and social interaction”, to which the Court attaches considerable importance despite its non-binding character (see paragraph 57 above). 62. The Court next observes that, as admitted by the Government (see paragraph 47 above), the prohibition in question has been applied to the applicant automatically, on the sole ground of his having been sentenced to life imprisonment in 2004. The Government neither stated that that measure was subject to review nor relied on any procedural safeguards against arbitrariness. They have also failed to explain how a prisoner could progress towards rehabilitation in such circumstances (compare Petukhov (no. 2), cited above, § 182). 63. As confirmed by documents in the case file, the applicant complained on at least thirteen occasions between 2009 and 2017 about the deterioration of his physical and mental health on account of the continued prohibition of any contact with other prisoners, and sought medical and psychological assistance in that regard (see paragraph 19 above). Having regard to the prison governor’s written statement that “there was no information concerning the examination of those applications” (ibid.) and noting the absence of any comments from the Government, the Court considers it sufficiently established that the applicant’s complaints and requests were not duly examined. Even after the deterioration of his health was confirmed by a medical report, he only received a “recommendation” “to lead a healthy lifestyle and to avoid psychological and emotional strain” (ibid.). Given that there was nothing the applicant could do to change the situation, to be heard or to at least obtain some psychological assistance, such a “recommendation” could hardly be considered as meaningful. 64. Accordingly, the Court considers that the ban on the applicant’s communication with prisoners from other cells during out-of-cell activities, which was further exacerbated by numerous other factors (notably: the applicant’s permanent confinement to his cell, with only a brief outdoor walk and without any purposeful activities; the automatic application of that ban on the sole ground of the applicant’s being sentenced to life imprisonment, without any possibility of review or safeguards against arbitrariness; the long duration of the measure in question; as well as the proven deterioration of the applicant’s health on that account and the absence of any adequate response to his related complaints and requests for assistance), amounted, without any doubt, to inhuman and degrading treatment prohibited by Article 3 of the Convention. 65. There has therefore been a violation of that provision. ALLEGED VIOLATION OF ARTICLE 13 READ IN CONJUNCTION WITH ARTICLE 3 OF THE CONVENTION 66. The applicant further complained under Article 13 of the Convention that there were no effective remedies in Ukraine at the relevant time in respect of his complaint under Article 3. The former provision reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” Admissibility 67. The Court notes that this complaint is closely linked to the one examined above and must therefore likewise be declared admissible. MeritsSubmissions by the parties Submissions by the parties Submissions by the parties 68. The applicant maintained his complaint. He referred to the lack of clarity among the domestic courts themselves as to which of them had jurisdiction to deal with his claim in respect of the disciplinary sanction imposed on him in June 2009. The applicant also provided some examples of domestic case-law to demonstrate that such a situation had been widespread (see paragraph 33 above). 69. The Government submitted that the applicant had not raised an arguable claim under Article 3 of the Convention for Article 13 to come into play. They also contended that the 2016 amendments to the applicable domestic legislation had made it clear that dealing with complaints relating to the imposition of disciplinary sanctions on prisoners was within the jurisdiction of the administrative courts. The Government referred to the decision of the Sumy Circuit Administrative Court of 8 August 2018 (see paragraph 32 above) as an example showing the effectiveness of proceedings before the administrative courts. 70. In reply to the Government’s last-mentioned argument, the applicant observed that the decision in question had been delivered more than nine years after he had started raising complaints in respect of the prohibition of out-of-cell contacts for life prisoners. Furthermore, even though that example showed that the administrative courts had jurisdiction to examine complaints in respect of the imposition of disciplinary sanctions on prisoners, the communication-related restriction remained outside review by the courts even after the 2016 amendments. The Court’s assessment 71. The general case-law principles of relevance can be found in, for example, Sukachov v. Ukraine (no. 14057/17, §§ 112-17, 30 January 2020, with numerous further references). 72. According to the Court’s case-law, remedies may not be effective where there is doubt as to which courts – civil, criminal, administrative or others – have jurisdiction to examine a complaint, and there is no effective mechanism for the purpose of resolving such uncertainty (see, mutatis mutandis, Mosendz v. Ukraine, no. 52013/08, §§ 122-25, 17 January 2013). 73. Turning to the present case, the Court notes that the applicant, in relation to whom an individual sanction for breaching the ban on contacts with prisoners from other cells was imposed, tried, without success, to challenge that sanction before the domestic courts. However, two sets of courts declined jurisdiction over the matter (see paragraphs 9-18 above). Furthermore, the applicant provided to the Court extensive domestic case-law showing the administrative courts’ regular refusals to examine similar matters during the period from 2010 to 2016 (see paragraph 33 above). 74. In such circumstances, the Court considers that the applicant had no effective domestic remedy available for him at the material time. 75. This consideration is sufficient for the Court to find a violation of Article 13 of the Convention, read in conjunction with Article 3. 76. That said, the Court takes note of the legislative amendments, including that as of 2016 the administrative courts were expressly entitled to examine complaints regarding decisions of the prison administration. The efficiency of this remedy is yet to be assessed in future cases. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 77. The applicant complained that the prohibition of life prisoners having contacts with inmates from other cells had also been in breach of Article 8 of the Convention. He further complained under Article 6 § 1 of the Convention that he had not had access to a court to challenge the disciplinary sanction imposed on him on 13 June 2009. 78. Having regard to the facts of the case, the submissions of the parties, and its findings under Articles 3 and 13 of the Convention (see paragraphs 65 and 75 above), the Court considers that it has examined the main legal questions raised in the present application, and that there is no need to give a separate ruling on the admissibility and merits of the above-mentioned complaints (compare Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014, and Roth v. Germany, nos. 6780/18 and 30776/18, §§ 83-84 and 99-101, 22 October 2020). APPLICATION OF ARTICLE 41 OF THE CONVENTION 79. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” Damage 80. The applicant claimed 40,000 euros (EUR) in respect of non ‑ pecuniary damage. 81. The Government considered the claim to be excessive and invited the Court to reject it. 82. As regards the breach of Article 3 of the Convention found in the present case, the Court considers that the applicant must have sustained non ‑ pecuniary damage as a result of the violation of his rights under that provision. Taking into account all the circumstances of the case and ruling on an equitable basis, the Court awards the applicant EUR 5,000 under this head. As regards the violation of Article 13 of the Convention, it considers that the finding of a violation constitutes sufficient just satisfaction (see Sukachov, cited above, § 165, with further references). Costs and expenses 83. The applicant also claimed EUR 2,400 for his legal representation in the domestic proceedings and before the Court by Mr Levytskyy, and EUR 5,400 for his legal representation before the Court by Mr Tarakhkalo, to be paid directly into those lawyers’ bank accounts. In support of his claim, he submitted two legal assistance contracts: the first with Mr Levytskyy dated 25 July 2013, and the second with Mr Tarakhkalo dated 10 January 2021, both indicating an hourly fee of EUR 150. According to those contracts, payment was due after completion of the proceedings in Strasbourg and within the limits of the sum awarded by the Court in respect of costs and expenses. The applicant also submitted reports of the work completed: the first report by Mr Levytskyy dated 18 May 2021, and the second report by Mr Tarakhkalo dated 20 May 2021. As indicated therein, Mr Levytskyy worked on the case for sixteen hours (EUR 2,400), whereas Mr Tarakhkalo worked on it for thirty-six hours (EUR 5,400). 84. The Government contested the above claims as excessive and unsubstantiated. 85. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, as well as taking into account the legal aid already granted (see paragraph 3 above), the Court considers it reasonable to award the applicant the following amounts, plus any tax that may be chargeable to him, in respect of costs and expenses: EUR 2,000 to be paid directly into the bank account indicated by Mr Tarakhkalo, and EUR 1,000 to be paid directly into the bank account indicated by Mr Levytskyy (see, for example, Belousov v. Ukraine, no. 4494/07, §§ 116-17, 7 November 2013). Default interest 86. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention, finding, overall, that the ban on the applicant’s communication with prisoners from other cells, alongside the other circumstances of the case, had amounted to inhuman and degrading treatment. The Court noted, in particular, that preventing inmates from talking to each other amounted to a breach of the European Prison Rules. It also found the following, inter alia, to be exacerbating factors: the applicant’s almost permanent confinement to his cell; the ban’s being automatic solely on the basis of his sentence, without any possibility of review; the deterioration of the applicant’s health. The Court also held that there had been a violation of Article 13 (right to an effective remedy) of the Convention in conjunction with Article 3, observing that the domestic courts had declined jurisdiction in respect of the applicant’s complaints concerning the ban, and that the applicant thus had had no remedy available to him in that respect. |
55 | Applications lodged by the abducting parent | II. RELEVANT DOMESTIC AND INTERNATIONAL LAW 20. The relevant provisions of the domestic law concerning implementation of the Hague Convention are presented in Ferrari v. Romania (no. 1714/10, §§ 25-28, 28 April 2015). 21. The relevant domestic law concerning prohibition of corporal punishment and the child-protection authority ’ s duties in the matter are described in D.M.D. v. Romania (no. 23022/13, §§ 21-22, 3 October 2017). In the same judgment, the relevant international standards concerning domestic abuse against children are also summarised (ibid, §§ 25-35). 22. The relevant provisions of the international instruments applicable in the present case are presented in X v. Latvia ( [GC] no. 27853/09, §§ 34 -42, ECHR 2013), notably: the relevant articles of the Hague Convention; excerpts of the Explanatory Report on the Hague Convention prepared by Elisa Pérez-Vera and of the Guide to Good Practice under the Hague Convention; the relevant provisions of the United Nations Convention on the Rights of the Child and General Comment No. 7 (2005) on implementing child rights in early childhood; those of the Charter of Fundamental Rights of the European Union; and those of the Brussels II bis Regulation. THE LAW I. ALLEGED VIOLATION OF ARTICLES 3 AND 8 OF THE CONVENTION 23. The applicants complained that their right to respect for their family life, protected by Article 8 of the Convention, had been infringed, in so far as the courts ordering the return of the second and third applicants to Italy had failed to take into account the grave risk that they would be subject to physical or psychological harm at the hands of their father. For the same reasons, the applicants considered that, in failing to protect the children against the risk of abuse, the authorities had breached their positive obligations enshrined in Article 3 of the Convention. 24. Article 3 of the Convention reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 25. Article 8 of the Convention reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 26. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ observations (a) The applicants 27. The applicants argued that the Government had a positive obligation to secure a safe environment for the children, free from domestic violence and corporal punishment. They further contended that the best interests of the children to grow up in a safe environment should override that of the father to be with his children. 28. The applicants considered that the domestic courts had not examined in depth the family situation, and consequently had not interpreted correctly the best interests of the children. In particular, the domestic courts had condoned abuse of “average intensity” and transferred all responsibility for the children ’ s well - being to the Italian authorities. 29. The applicants argued that the domestic authorities had failed to take into account that the children would suffer additional psychological trauma if returned to their tormentor. They explained that having spent three years in Romania, they had become integrated in their new environment. Moreover, the first applicant faced criminal investigations in Italy which constituted additional stress for the applicants. (b) The Government 30. The Government reiterated that the proceedings for the return of the children, which were at the heart of the applicants ’ complaint, were restricted to solely verifying the admissibility of the request, the illicit nature of the retention and the existence of any of the exceptions provided for by the Hague Convention. They were not meant to replace the proceedings concerning attribution of parental authority and custody of the children. 31. The Government admitted that there had been an interference with the applicants ’ right to respect for their family life but considered that that interference was provided for by law, pursued a legitimate aim and was proportionate to that aim. They argued that the first applicant had had the opportunity to participate fully in the proceedings, which had been adversarial. Moreover, she had had the opportunity both to present evidence and to express her position on the evidence produced by the other party. 32. The Government further averred that the domestic courts had examined the allegations of a “grave risk” as defined by the Hague Convention. Those courts had neither tolerated nor accepted domestic violence and had moreover reiterated in their decisions that emotional abuse of children was prohibited. Their decision to return the children to their father had been based on the assumption that the Italian system was equally capable of protecting the children ’ s rights. 33. Lastly, the Government pointed out that the enforcement of the return order had been stayed by the domestic courts, in order to allow the children to undergo psychological counselling in Romania. 2. The Court ’ s assessment (a) General principles 34. The relevant principles regarding the interference with the right to respect for family life, as well as the State ’ s positive obligations under Article 8 of the Convention in cases concerning the return of a child under the Hague Convention, are summarised in X v. Latvia ([GC], no. 27853/09, §§ 92-108, ECHR 2013). 35. In particular, the Court reiterates that a child ’ s return cannot be ordered automatically or mechanically when the Hague Convention is applicable, as is indicated by the recognition in that instrument of a number of exceptions to the obligation to return the child (see Anghel v. Italy, no. 5968/09, § 79, 25 June 2013). The factors capable of constituting an exception to the child ’ s immediate return in application of Articles 12, 13 and 20 of the Hague Convention, particularly where they are raised by one of the parties to the proceedings, must genuinely be taken into account by the requested court. That court must then make a decision that is sufficiently reasoned on this point, in order to enable the Court to verify that those questions have been effectively examined. These factors must be evaluated in the light of Article 8 of the Convention (see X v. Latvia, § 106). Moreover, the best interests of the child must be of primary consideration ( ibid., §§ 95-96). Lastly on this point the Court reiterates that the Hague Convention has to be interpreted and applied in the context of the Brussels II bis Regulation, when both States are parties to this instruments (see, mutatis mutandis, K.J. v. Poland, no. 30813/14, § 58, 1 March 2016) 36. In addition, the Court reiterates its finding in D.M.D. v. Romania (no. 23022/13, § 51, 3 October 2017) that respect for children ’ s dignity cannot be ensured if the domestic courts were to accept any form of justification of acts of ill- treatment, including corporal punishment. The Court considered that Member States should strive to expressly and comprehensively protect children ’ s dignity which in turn requires in practice an adequate legal framework affording protection of children against domestic violence, including, inter alia, reasonable steps to prevent ill-treatment of which the authorities had, or ought to have had, knowledge (ibid.). (b) Application of those principles to the present case 37. The Court notes that the Government expressly admitted in their submissions that there had been an interference with the applicants ’ right to respect for their family life (see paragraph 31 above). The Court further observes that the interference was provided for by law, namely Article 12 of the Hague Convention, and that it pursued the legitimate aim of protecting the children ’ s best interests (see, mutatis mutandis, Blaga v. Romania, no. 54443/10, § 74, 1 July 2014). 38. The Court must therefore determine whether the interference in question was also “necessary in a democratic society” within the meaning of the second paragraph of Article 8 of the Convention, interpreted in the light of the applicable international instruments, and whether, when striking a balance between the competing interests at stake, the authorities acted swiftly and appropriate consideration was given to the children ’ s best interests, within the margin of appreciation afforded to the State in such matters (see paragraph 22 above, as well as X v. Latvia, cited above, § 54, and Blaga, cited above, § 75). 39. In this connection, the Court notes that the applicants complained about the manner in which the domestic authorities had interpreted the notion of “grave risk” enshrined in Article 13 (b) of the Hague Convention as grounds for an exception to the principle of returning children to the place of their habitual residence. 40. The Court reiterates that in the context of an application for return, which is distinct from custody proceedings, it is primarily for the national authorities of the requested State, which have, inter alia, the benefit of direct contact with the interested parties, to establish the best interests of the child and evaluate the case in the light of the exceptions provided for by the Hague Convention (see Ferrari v. Romania, no. 1714/10, § 46, 28 April 2015, and Anghel, cited above, § 80). Nevertheless, the Court must satisfy itself that the decision-making process leading to the adoption of the impugned measures by the domestic courts was fair and allowed those concerned to present their case fully, and that the best interests of the child were defended (for details, see X v. Latvia, cited above, § 102, with further references). This means, in the circumstances of the present case, that the Court must assess whether the allegations of “grave risk” raised by the first applicant before the domestic courts were genuinely taken into account by those courts ( ibid., §§ 106, 107 and 115, with further references). 41. In this context, the Court notes that the first applicant substantiated the allegations of violence against the children by submitting recordings of past episodes of abuse (see paragraph 10 above in fine ). The father also admitted in court that he had used physical force to discipline his children (see paragraph 13 above). The domestic courts established that the second and third applicants had been subject to use of physical force at the hands of their father (see paragraph 13 above). The Court will now look at how the domestic courts assessed that information and how they weighed it in the children ’ s best interests. 42. The domestic courts, while condemning in general terms abuse against children and reaffirming their right to respect for their dignity, were nevertheless satisfied that what the second and third applicants had suffered at the hands of their father had only been occasional acts of violence and would not reoccur “often enough to pose a grave risk” (see paragraphs 13 and 14 above). Moreover, the Court of Appeal seems to have considered that the children ’ s right not to be subject to domestic abuse was “to a larger or lesser extent debatable” (see paragraph 14 above). The Court fails to see how those statements fit in with the relevant provisions of domestic law prohibiting in absolute terms domestic corporal punishment (see, mutatis mutandis, D.M.D. v. Romania, cited above, § 49). In fact, such assessments of the children ’ s rights run counter to the very prohibition of domestic abuse against children and cast doubt on the decision-making process. 43. The Court must reiterate that the best interests of the children, which unquestionably include respect for their rights and dignity, are the cornerstone of the protection afforded to children from corporal punishment (ibid.). Corporal punishment against children cannot be tolerated and States should strive to expressly and comprehensively prohibit it in law and practice (see D.M.D. v. Romania, cited above, §§ 50-51). In this context, the risk of domestic violence against children cannot pass as a mere inconvenience necessarily linked to the experience of return, but concerns a situation which goes beyond what a child might reasonably bear (see, mutatis mutandis, X v. Latvia, cited above, § 116). 44. Furthermore, there is nothing in the domestic courts ’ decisions that leads the Court to believe that they considered that the children were no longer at risk of being violently disciplined by their father if returned to his care. In fact, it can be inferred from the reasoning of the Bucharest Court of Appeal that that court accepted that if such a risk reoccurred, the Italian authorities would be able to react and to protect the children from any abuse of their rights, but only “if the risk was brought to their attention and supported by evidence” (see paragraph 14 above). 45. On this point, the Court notes that as member States of the European Union (“the EU”), both States are parties to the Brussels II bis Regulation, which is thus applicable in the case (see K.J. v. Poland, cited above, § 58). That Regulation, which builds on the Hague Convention, is based on the principle of mutual trust between EU member States (see Royer v. Hungary, no. 9114/16, § 50, 6 March 2018). However, in the Court ’ s view, the existence of mutual trust between child - protection authorities does not mean that the State to which children have been wrongfully removed is obliged to send them back to an environment where they will incur a grave risk of domestic violence solely because the authorities in the State in which the child had its habitual residence are capable of dealing with cases of domestic child abuse. Nothing in the Hague Convention or in the Brussels II bis Regulation allows the Court to reach a different conclusion. 46. In this connection, and bearing in mind that a child ’ s return cannot be ordered automatically or mechanically when the Hague Convention is applicable (see Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 138, ECHR 2010, and M.K. v. Greece, no. 51312/16, § 75, 1 February 2018), the Court considers that the domestic courts should have given more consideration to the potential risk of ill-treatment for the children if they were returned to Italy. They should have at least ensured that specific arrangements were made in order to safeguard the children. 47. In the light of the above, and notwithstanding the principle of subsidiarity, the Court concludes that the domestic courts failed to examine the allegations of “grave risk” in a manner consistent with the children ’ s best interests within the scope of the procedural framework of the Hague Convention. 48. There has accordingly been a violation of Article 8 of the Convention. 49. Bearing in mind the conclusion it has reached in the paragraph above, the Court considers that no separate issue arises under Article 3 of the Convention, as the facts which form the object of the applicants ’ allegations of risk of submission to inhuman and degrading treatment have already been examined under Article 8 (see, mutatis mutandis, A, B and C v. Ireland [GC], no. 25579/05, § 274, ECHR 2010). II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 50. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 51. The applicants claimed the following amounts in respect of non ‑ pecuniary damage: - 5,000 euros (EUR) for the first applicant, - EUR 10,000 for the second applicant, and - EUR 10,000 for the third applicant. 52. Making reference to previous cases concerning similar matters (see Ferrari, § 62, and Blaga, § 115; judgments cited above, as well as Monory v. Romania and Hungary, no. 71099/01, § 96, 5 April 2005; Karrer v. Romania, no. 16965/10, § 62, 21 February 2012; and Raw and Others v. France, no. 10131/11, § 101, 7 March 2013 ), the Government argued that the amounts requested by the applicants in the present case were excessive. They considered that the finding of a violation constituted sufficient compensation for the non - pecuniary damage allegedly sustained by the applicants. 53. The Court considers that the applicants must have sustained non- pecuniary damage which cannot be compensated for solely by the finding of a violation. Having regard to the nature of the violation found and making its assessment on an equitable basis, the Court awards jointly to the applicants EUR 12,500 in respect of non-pecuniary damage, plus any tax that may be chargeable. B. Costs and expenses 54. The first applicant also claimed EUR 8,400 for the costs and expenses incurred before the domestic courts and for those incurred before the Court, representing lawyers ’ fees and costs for translation and transmission of documents. She sent documents attesting notably to the payment of: 100 Romanian Lei (RON – approximately EUR 20) for the lawyer who had represented the applicants in the domestic proceedings; RON 14,325.40 (approximately EUR 3,000) for the lawyer in the proceedings before the Court; and RON 2,975 (approximately EUR 625) representing translation costs for the period from 17 September 2015 to 24 September 2018. 55. The Government contested the relevance of the costs allegedly incurred by the applicants. They also pointed out that most of the alleged expenses were not accompanied by supporting documents. 56. Regard being had to the documents in its possession and to its case - law, the Court considers it reasonable to award the first applicant the sum of EUR 3,645 covering costs under all heads. C. Default interest 57. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention, finding that the Romanian courts had failed to give enough consideration to the grave risk of the applicant children being subjected to domestic violence when ordering their return to their father in Italy, which was one of the exceptions to the principle under international law that children should be returned to their habitual place of residence. The Court noted in particular that, even if there was mutual trust between Romania and Italy’s child-protection authorities under EU law, that did not mean that Romania had been obliged to send the children back to an environment where they were at risk, leaving it up to Italy to deal with any abuse if it reoccurred. |
1,094 | Pensions | RELEVANT LEGAL FRAMEWORK AND PRACTICE DOMESTIC LAWConstitutional provisions Constitutional provisions Constitutional provisions 60. On 4 May 1990, the Supreme Council of the “Latvian SSR” adopted the Declaration on the Restoration of Independence of the Republic of Latvia ( Deklarācija “ Par Latvijas Republikas neatkarības atjaunošanu ”). It was noted in its Preamble that the establishment of the State of Latvia had been proclaimed on 18 November 1918, that in 1920 Latvia had been internationally recognised, and that in 1921 it had become a member of the League of Nations. It was further noted in the Preamble that: “Hence, according to international law, the incorporation of Latvia into the Soviet Union is invalid. Accordingly, the Republic of Latvia continues to exist de jure as a subject of international law, and it is recognised as such by more than 50 nations of the world.” 61. The operative provisions of the Declaration of 4 May 1990 read as follows: “The Supreme Council of the Latvian SSR decides : (1) in recognition of the supremacy of international law over the provisions of national law, to consider illegal the Pact of 23 August 1939 between the USSR and Germany and the subsequent liquidation of the sovereignty of the Republic of Latvia through the USSR’s military aggression on 17 June 1940; (2) to declare null and void the Declaration by the Parliament [ Saeima ] of Latvia, adopted on 21 July 1940, on Latvia’s integration into the Union of Soviet Socialist Republics; (3) to restore the legal effect of the Constitution [ Satversme ] of the Republic of Latvia, adopted on 15 February 1922 by the Constituent Assembly [ Satversmes sapulce ], throughout the entire territory of Latvia. The official name of the Latvian State shall be the REPUBLIC of LATVIA, abbreviated to LATVIA; (4) to suspend the Constitution of the Republic of Latvia pending the adoption of a new version of the Constitution, with the exception of those Articles which define the constitutional and legal foundation of the Latvian State and which, in accordance with Article 77 of the same Constitution, may only be amended by referendum, namely: Article 1 – Latvia is an independent and democratic republic. Article 2 – The sovereign power of the State of Latvia is vested in the Latvian people. Article 3 – The territory of the State of Latvia, as established by international agreements, consists of Vidzeme, Latgale, Kurzeme and Zemgale. Article 6 – Parliament [ Saeima ] shall be elected in general, equal, direct and secret elections, based on proportional representation. Article 6 of the Constitution shall be applied after the restoration of the State and administrative structures of the independent Republic of Latvia, which will guarantee free elections; (5) to introduce a transition period for the re-establishment of the Republic of Latvia’s de facto sovereignty, which will end with the convening of the Parliament of the Republic of Latvia. During the transition period, supreme power shall be exercised by the Supreme Council of the Republic of Latvia; (6) during the transition period, to accept the application of those constitutional and other legal provisions of the Latvian SSR which are in force in the territory of the Latvian SSR when the present Declaration is adopted, in so far as those provisions do not contradict Articles 1, 2, 3 and 6 of the Constitution of the Republic of Latvia. Disputes on matters relating to the application of legislative texts will be referred to the Constitutional Court of the Republic of Latvia. During the transition period, only the Supreme Council of the Republic of Latvia shall adopt new legislation or amend existing legislation; (7) to set up a commission to draft a new version of the Constitution of the Republic of Latvia that will correspond to the current political, economic and social situation in Latvia; (8) to guarantee social, economic and cultural rights, as well as universally recognised political freedoms compatible with international instruments of human rights, to citizens of the Republic of Latvia and citizens of other States permanently residing in Latvia. This shall apply to citizens of the USSR who wish to live in Latvia without acquiring Latvian nationality; (9) to base relations between the Republic of Latvia and the USSR on the Peace Treaty of 11 August 1920 between Latvia and Russia, which is still in force and which recognises the independence of the Latvian State for all time. A governmental commission shall be set up to conduct the negotiations with the USSR.” 62. The operative provisions of the Constitutional Law of 21 August 1991 on the status of the Republic of Latvia as a State ( Konstitucionālais likums “Par Latvijas Republikas valstisko statusu” ) read as follows: “The Supreme Council of the Republic of Latvia decides : (1) to declare that Latvia is an independent and democratic republic in which the sovereign power of the State of Latvia belongs to the Latvian people, the status of which as a State is defined by the Constitution of 15 February 1922; (2) to repeal Paragraph 5 of the Declaration of 4 May 1990 on the Restoration of the Independence of the Republic of Latvia, establishing a transition period for the de facto restoration of the Republic of Latvia’s State sovereignty; (3) until such time as the occupation and annexation is ended and Parliament is convened, supreme State power in the Republic of Latvia shall be fully exercised by the Supreme Council of the Republic of Latvia. Only those laws and decrees enacted by the supreme governing and administrative authorities of the Republic of Latvia shall be in force in its territory; (4) this Constitutional Law shall enter into force on the date of its enactment.” 63. The relevant provisions of the Latvian Constitution ( Satversme ) are worded as follows: Preamble (third paragraph) (Inserted by the Act of 19 June 2014) “The people of Latvia did not recognise the occupation regimes, resisted them and regained their freedom by restoring national independence on 4 May 1990 on the basis of continuity of the State. They honour their freedom fighters, commemorate victims of foreign powers, [and] condemn the Communist and Nazi totalitarian regimes and their crimes.” Article 91 (Inserted by the Act of 15 October 1998) “All persons in Latvia shall be equal before the law and the courts. Human rights shall be exercised without discrimination of any kind.” Article 109 (Inserted by the Act of 15 October 1998) “Everyone has the right to social assistance in the event of old age, incapacity to work, unemployment and in other cases provided for by law.” Provisions on the calculation of State pensionsSoviet law (before 1991) Soviet law (before 1991) Soviet law (before 1991) 64. Before 1991, persons resident in Latvian territory were covered by the same social security scheme as the rest of the population of the USSR. In particular, the pension system at the time was based not on the contribution principle but on the solidarity principle. All pensions were paid from Treasury funds, a portion of the State’s revenue being set aside for pensions. More specifically, employees themselves were not subject to social tax, which was paid by their employers. The social-insurance contributions paid by the various employers were transferred via trade unions to the USSR Treasury, managed by the USSR State Bank. Those funds were then redistributed among the SSRs for a variety of purposes, including the payment of retirement pensions, and the amount of a pension did not depend directly on the amount of tax previously paid to the tax authorities. There was also a personal income tax, part of which was paid to the USSR central tax authorities and the rest to the local tax authorities of the relevant SSR. However, personal income-tax revenues were practically never used for pension payments (for more precise details on the legal provisions applicable during the Soviet period, see Andrejeva, cited above, §§ 26 ‑ 32). The 1990 and 1995 State Pensions Acts 65. The main instrument governing pensions is the State Pensions Act of 2 November 1995 ( Likums « Par valsts pensijām » ), which came into force on 1 January 1996, repealing the previous Act passed in 1990. Section 3(1) of the Act provides that persons who have been covered by the compulsory insurance scheme are entitled to a State social-insurance pension. As a rule, the amount of the pension in each particular case depends on the period during which the entitled person, the employer or both paid, or are presumed to have paid, insurance contributions in respect of State pensions (section 9(1) and (2)). Evidence of this period is provided by data at the disposal of the State Social-Insurance Agency (section 10). 66. Matters relating to the reckoning of years of employment under the Soviet regime (prior to 1991) are governed by the transitional provisions of the Act. Paragraph 1 of these transitional provisions, as in force from 1 July 2008 until 18 July 2012, provided: “In the case of Latvian citizens, periods of employment and equivalent periods accrued in the territory of Latvia and of the former USSR up to 31 December 1990, as well as the aggregate period spent outside Latvia in the case specified in sub ‑ paragraph (10) of this paragraph, shall be counted towards the insurance period. In the case of foreign nationals, stateless persons and non-citizens of Latvia, the insurance period shall be composed of periods of employment and equivalent periods that have been accrued in the territory of Latvia, as well as the equivalent periods that have been accrued in the former USSR in the cases specified in sub-paragraphs (4) and (5) of this paragraph, and the aggregate period spent outside Latvia in the case specified in sub ‑ paragraph (10) of this paragraph. The following periods, which are treated as equivalent to employment, and which have been accrued up to 31 December 1990 – but in case of sub-paragraph (11) of this paragraph up to 31 December 1995 – shall be counting towards the insurance period: (1) mandatory active military service and alternative (work) service; (2) career service for soldiers and service for officers in the Army of the Republic of Latvia, for citizens of Latvia – also in the USSR Armed Forces, if as a result of their activities in the interests of Latvia they had been demoted or if they had been called up for active military service after serving their compulsory military service or after graduating a civil university ...; (3) rank and file service and position of unit commanding personnel in the institutions dealing with internal affairs, with the exception of the KGB [the State Security Committee]; (4) periods of study at higher-education institutions, and at other training institutions at post-secondary level, subject to a limit of five years in the case of qualifications requiring up to five years of study at the relevant time, and a limit of six years in the case of qualifications requiring more than five years of study at the relevant time; (5) periods of full-time doctoral studies, up to a maximum of three years, postgraduate education or ongoing vocational training; (6) individual work; (7) time spend caring for a disabled person with a category I disability status, a disabled child up to the age of 16, as well as a person who has reached 80 years of age; (8) time spent by a mother raising a child up to the age of eight years; (9) gainful employment in religious organisations; (10) time spent in places of detention by victims of political persecution ... in exile, and time spent escaping from such places, those periods to be multiplied by three, or by five in the case of time spent in the [Soviet] Far North and regions treated as equivalent ... (11) time when an insured person was given a disability status of category I, II or III and did not work (including due to an accident at work or occupational illness), but no longer than up to reaching the retirement age; ... (12) employment in the status of a member of a collective farm ( kolkhoz ) from the age of 16.” 67. In other words, with respect to Latvian citizens, all of the defined employment and equivalent periods accrued prior to 1991 in the territory of the former USSR are taken into account in the calculation of their pension. In contrast, with respect to the “permanently resident non-citizens” the employment periods accrued outside the territory of Latvia are not counted towards their insurance period, and from the equivalent periods only those mentioned in subparagraphs 4, 5, and 10 are taken into account. If a “permanently resident non-citizen” obtains Latvian citizenship by way of naturalisation, he or she also starts receiving pension in respect of the employment periods accrued outside Latvia, but only ex nunc; the recalculation of the amount of the pension has no retroactive effect. 68. Under paragraph 7 of the above-mentioned transitional provisions: “The following shall be deemed to constitute evidence of periods of employment accrued before 31 December 1995: (1) an employment record [ darba grāmatiņa ]; (2) a record of employment contracts [ darba līgumu grāmatiņa ]; (3) a document certifying payment of social-insurance contributions; (4) any other evidence of periods of employment (such as certificates, contracts of employment or documents certifying performance of work).” 69. In order to clarify the application of the provisions cited above, on 23 April 2002 the Cabinet adopted Regulation no. 165 on the procedure for certifying, calculating and monitoring insurance periods ( Apdrošināšanas periodu pierādīšanas, aprēķināšanas un uzskaites kārtība ). Rule 21 of this regulation states that any work carried out for entities situated in Latvian territory is to be treated as “employment in Latvia”. INTERNATIONAL LAW AND PRACTICENationalityThe case-law of the International Court of Justice NationalityThe case-law of the International Court of Justice The case-law of the International Court of Justice NationalityThe case-law of the International Court of Justice The case-law of the International Court of Justice The case-law of the International Court of Justice 70. In the Nottebohm Case ( Liechtenstein v. Guatemala, judgment of 6 April 1955, ICJ Reports 1955), the International Court of Justice (ICJ) concluded as follows. “It is for Liechtenstein, as it is for every sovereign State, to settle by its own legislation the rules relating to the acquisition of its nationality, and to confer that nationality by naturalization granted by its own organs in accordance with that legislation. It is not necessary to determine whether international law imposes any limitations on its freedom of decision in this domain. Furthermore, nationality has its most immediate, its most far-reaching and, for most people, its only effects within the legal system of the State conferring it. Nationality serves above all to determine that the person upon whom it is conferred enjoys the rights and is bound by the obligations which the law of the State in question grants to or imposes on its nationals. This is implied in the wider concept that nationality is within the domestic jurisdiction of the State. ... According to the practice of States, to arbitral and judicial decisions and to the opinions of writers, nationality is a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties. It may be said to constitute the juridical expression of the fact that the individual upon whom it is conferred, either directly by the law or as the result of an act of the authorities, is in fact more closely connected with the population of the State conferring nationality than with that of any other State. Conferred by a State, it only entitles that State to exercise protection vis-à-vis another State, if it constitutes a translation into juridical terms of the individual’s connection with the State which has made him its national. ... Naturalisation is not a matter to be taken lightly. To seek and to obtain it is not something that happens frequently in the life of a human being. It involves his breaking of a bond of allegiance and his establishment of a new bond of allegiance. It may have far-reaching consequences and involve profound changes in the destiny of the individual who obtains it. It concerns him personally, and to consider it only from the point of view of its repercussions with regard to his property would be to misunderstand its profound significance. In order to appraise its international effect, it is impossible to disregard the circumstances in which it was conferred, the serious character which attached to it, the real and effective, and not merely the verbal preference of the individual seeking it for the country which grants it to him.” The European Convention on Nationality 71. The principal Council of Europe document concerning nationality is the European Convention on Nationality (ETS No. 166), which was adopted on 6 November 1997 and came into force on 1 March 2000. It has been ratified by twenty member States of the Council of Europe. Latvia signed this Convention on 30 May 2001 but has not ratified it. 72. The relevant Articles of this Convention read as follows. Article 2 – Definitions “For the purpose of this Convention: a. ’nationality’ means the legal bond between a person and a State and does not indicate the person’s ethnic origin; ...” Article 3 – Competence of the State “1. Each State shall determine under its own law who are its nationals. 2. This law shall be accepted by other States in so far as it is consistent with applicable international conventions, customary international law and the principles of law generally recognised with regard to nationality.” Article 4 – Principles “The rules on nationality of each State Party shall be based on the following principles: a. everyone has the right to a nationality; b. statelessness shall be avoided; c. no one shall be arbitrarily deprived of his or her nationality; d. neither marriage nor the dissolution of a marriage between a national of a State Party and an alien, nor the change of nationality by one of the spouses during marriage, shall automatically affect the nationality of the other spouse.” 73. The Explanatory Report to this Convention states, inter alia, in relation to Article 2: Article 2 – Definitions “22. The concept of nationality was explored by the International Court of Justice in the Nottebohm case. This court defined nationality as ‘a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties’ ( Nottebohm case, ICJ Reports 1955, p. 23). 23. Nationality’ is defined in Article 2 of the Convention as ‘the legal bond between a person and a State and does not indicate the person’s ethnic origin’. It thus refers to a specific legal relationship between an individual and a State which is recognised by that State. As already indicated in a footnote to paragraph 1 of this explanatory report, with regard to the effects of the Convention, the terms ‘nationality’ and ‘citizenship’ are synonymous.” The case-law of the Inter-American Court of Human Rights 74. In Proposed Amendments to the Naturalisation Provision of the Constitution of Costa Rica (Advisory Opinion OC-4/84, 19 January 1984), the Inter-American Court of Human Rights ruled as follows: “31. The questions posed by the Government involve two sets of general legal problems which the Court will examine separately. There is, first, an issue related to the right to nationality established by Article 20 of the Convention. A second set of questions involves issues of possible discrimination prohibited by the Convention. 32. It is generally accepted today that nationality is an inherent right of all human beings. Not only is nationality the basic requirement for the exercise of political rights, it also has an important bearing on the individual’s legal capacity. Thus, despite the fact that it is traditionally accepted that the conferral and regulation of nationality are matters for each state to decide, contemporary developments indicate that international law does impose certain limits on the broad powers enjoyed by the states in that area, and that the manners in which states regulate matters bearing on nationality cannot today be deemed within their sole jurisdiction; those powers of the state are also circumscribed by their obligations to ensure the full protection of human rights. 33. The classic doctrinal position, which viewed nationality as an attribute granted by the state to its subjects, has gradually evolved to the point that nationality is today perceived as involving the jurisdiction of the state as well as human rights issues. This has been recognized in a regional instrument, the American Declaration of the Rights and Duties of Man of 2 May 1948 ... [text of Article 19]. Another instrument, the Universal Declaration of Human Rights ... provides the following [text of Article 15]. 34. The right of every human being to a nationality has been recognized as such by international law. Two aspects of this right are reflected in Article 20 of the Convention: first, the right to a nationality established therein provides the individual with a minimal measure of legal protection in international relations through the link his nationality establishes between him and the state in question; and, second, the protection therein accorded the individual against the arbitrary deprivation of his nationality, without which he would be deprived for all practical purposes of all of his political rights as well as of those civil rights that are tied to the nationality of the individual. 35. Nationality can be deemed to be the political and legal bond that links a person to a given state and binds him to it with ties of loyalty and fidelity, entitling him to diplomatic protection from that state. In different ways, most states have offered individuals who did not originally possess their nationality the opportunity to acquire it at a later date, usually through a declaration of intention made after complying with certain conditions. In these cases, nationality no longer depends on the fortuity of birth in a given territory or on parents having that nationality; it is based rather on a voluntary act aimed at establishing a relationship with a given political society, its culture, its way of life and its values. 36. Since it is the state that offers the possibility of acquiring its nationality to persons who were originally aliens, it is natural that the conditions and procedures for its acquisition should be governed primarily by the domestic law of that state. As long as such rules do not conflict with superior norms, it is the state conferring nationality which is best able to judge what conditions to impose to ensure that an effective link exists between the applicant for naturalization and the systems of values and interests of the society with which he seeks to fully associate himself. That state is also best able to decide whether these conditions have been complied with. Within these same limits, it is equally logical that the perceived needs of each state should determine the decision whether to facilitate naturalization to a greater or lesser degree; and since a state’s perceived needs do not remain static, it is quite natural that the conditions for naturalization might be liberalized or restricted with the changed circumstances. It is therefore not surprising that at a given moment new conditions might be imposed to ensure that a change of nationality not be effected to solve some temporary problems encountered by the applicants when these have not established real and lasting ties with the country, which would justify an act as serious and far-reaching as the change of nationality.” 75. In Case of the Girls Yean and Bosico v. Dominican Republic (preliminary objections, merits, reparations and costs), judgment of 8 September 2005, Series C No. 130, the Inter-American Court of Human Rights ruled as follows (footnotes omitted): “139. The American Convention recognizes both aspects of the right to nationality: the right to have a nationality from the perspective of granting the individual a ‘minimal measure of legal protection in international relations through the link his nationality establishes between him and the State in question; and second the protection accorded the individual against the arbitrary deprivation of his nationality, without that are tied to the nationality of the individual’. 140. The determination of who has a right to be a national continues to fall within a State’s domestic jurisdiction. However, its discretional authority in this regard is gradually being restricted with the evolution of international law, in order to ensure a better protection of the individual in the face of arbitrary acts of States. Thus, at the current stage of the development of international human rights law, this authority of the States is limited, on the one hand, by their obligation to provide individuals with the equal and effective protection of the law and, on the other hand, by their obligation to prevent, avoid and reduce statelessness. 141. The Court considers that the peremptory legal principle of the equal and effective protection of the law and non-discrimination determines that, when regulating mechanisms for granting nationality, States must abstain from producing regulations that are discriminatory or have discriminatory effects on certain groups of population when exercising their rights. Moreover, States must combat discriminatory practices at all levels, particularly in public bodies and, finally, must adopt the affirmative measures needed to ensure the effective right to equal protection for all individuals. 142. States have the obligation not to adopt practices or laws concerning the granting of nationality, the application of which fosters an increase in the number of stateless persons. This condition arises from the lack of a nationality, when an individual does not qualify to receive this under the State’s laws, owing to arbitrary deprivation or the granting of a nationality that, in actual fact, is not effective. Statelessness deprives an individual of the possibility of enjoying civil and political rights and places him in a condition of extreme vulnerability.” 76. The principles emerging from the case-law of the Inter-American Court of Human Rights concerning the right to nationality were confirmed in Expelled Dominicans and Haitians v. Dominican Republic (preliminary objections, merits, reparations and costs, judgment of 28 August 2014, Series C No. 282, §§ 253-64). State responsibility 77. The International Law Commission adopted the Articles on Responsibility of States for Internationally Wrongful Acts (the ILC Articles) at its 53 rd session, in 2001 ( Official Records of the General Assembly, Fifty ‑ sixth Session, Supplement No. 10 and corrigendum (A/56/10 and Corr.1)). They were submitted to the General Assembly which, in its resolution of 12 December 2001 (A/56/83 (2001)), took note of these articles and commended them to the attention of Governments. Article 2, entitled “Elements of an internationally wrongful act of a State”, provides: “There is an internationally wrongful act of a State when conduct consisting of an action or omission: (a) is attributable to the State under international law; and (b) constitutes a breach of an international obligation of the State.” 78. The Commentary, adopted together with the ILC Articles, further explains in relation to Article 2 (footnotes omitted): “(5) For particular conduct to be characterized as an internationally wrongful act, it must first be attributable to the State. The State is a real organized entity, a legal person with full authority to act under international law. But to recognize this is not to deny the elementary fact that the State cannot act of itself. An “act of the State” must involve some action or omission by a human being or group: “States can act only by and through their agents and representatives.” The question is which persons should be considered as acting on behalf of the State, i.e. what constitutes an “act of the State” for the purposes of State responsibility. (6) In speaking of attribution to the State what is meant is the State as a subject of international law. Under many legal systems, the State organs consist of different legal persons (ministries or other legal entities), which are regarded as having distinct rights and obligations for which they alone can be sued and are responsible. For the purposes of the international law of State responsibility the position is different. The State is treated as a unity, consistent with its recognition as a single legal person in international law. In this as in other respects the attribution of conduct to the State is necessarily a normative operation. What is crucial is that a given event is sufficiently connected to conduct (whether an act or omission) which is attributable to the State under one or other of the rules set out in chapter II. (7) The second condition for the existence of an internationally wrongful act of the State is that the conduct attributable to the State should constitute a breach of an international obligation of that State ... (12) In subparagraph (a), the term “attribution” is used to denote the operation of attaching a given action or omission to a State. In international practice and judicial decisions, the term “imputation” is also used. But the term “attribution” avoids any suggestion that the legal process of connecting conduct to the State is a fiction, or that the conduct in question is “really” that of someone else. (13) In subparagraph (b), reference is made to the breach of an international obligation rather than a rule or a norm of international law. What matters for these purposes is not simply the existence of a rule but its application in the specific case to the responsible State. The term “obligation” is commonly used in international judicial decisions and practice and in the literature to cover all the possibilities. The reference to an “obligation” is limited to an obligation under international law, a matter further clarified in article 3.” International agreements on social security concluded by Latvia 79. Mutual recognition of periods of employment to be taken into account in calculating State pensions is provided for in the cooperation agreements on social security which Latvia has concluded with Lithuania (in force since 31 January 1996), Estonia (in force since 29 January 1997), Ukraine (in force since 11 June 1999), Finland (in force since 1 June 2000) and Canada (in force since 1 November 2006). A similar agreement with the Netherlands (in force since 1 June 2005) prohibits any discrimination on the ground of place of residence. Since the delivery of the Court’s judgment in Andrejeva, cited above, further bilateral agreements have been concluded, most importantly with Belarus (in force since 28 September 2010) and with Russia (in force since 19 January 2011). 80. In particular, Article 3(1) of the cooperation agreement on social security between Latvia and the Russian Federation expressly extends its scope to “permanently resident non-citizens” of Latvia. Article 10(1) provides that, in calculating a retirement pension, each of the parties is to take into account the aggregate period of employment of the person concerned in both countries. Article 4(2) provides for an exception to the effect that the principle of equality between nationals and residents of both States does not apply to the specific arrangements for the calculation of Latvian citizens’ periods of employment prior to 1991. 81. Article 25 of the agreement shares the financial burden of retirement pensions between the two States where the person concerned has become entitled to such a pension after the agreement’s entry into force. The pension in respect of employment prior to 1 January 1991 is paid by the State in which the beneficiary is resident at the time of claiming the pension. However, in respect of the period after that date, each Contracting Party has undertaken to cover the periods of employment in its own territory. Article 26 states that a pension that had already been granted before the entry into force of the agreement may also be recalculated on that basis at the express request of the beneficiary; however, any such review can only take effect from the entry into force of the agreement. 82. The agreement with Belarus contains similar provisions. LAW AND PRACTICE of the institutions of the european communities and the european unionThe Court of Justice of the European Union The Court of Justice of the European Union The Court of Justice of the European Union 83. In case C-135/08 Janko Rottmann v. Freistaat Bayern (judgment of 2 March 2010), the Court of Justice of the European Union ruled as follows (references omitted): “45. Thus, the Member States must, when exercising their powers in the sphere of nationality, have due regard to European Union law ... ... 48. The proviso that due regard must be had to European Union law does not compromise the principle of international law previously recognised by the Court, ..., that the Member States have the power to lay down the conditions for the acquisition and loss of nationality, but rather enshrines the principle that, in respect of citizens of the Union, the exercise of that power, in so far as it affects the rights conferred and protected by the legal order of the Union, as is in particular the case of a decision withdrawing naturalisation such as that at issue in the main proceedings, is amenable to judicial review carried out in the light of European Union law. ... 55. In such a case, it is, however, for the national court to ascertain whether the withdrawal decision at issue in the main proceedings observes the principle of proportionality so far as concerns the consequences it entails for the situation of the person concerned in the light of European Union law, in addition, where appropriate, to examination of the proportionality of the decision in the light of national law.” The European Parliament 84. The relevant parts of the Resolution of the European Parliament regarding the Baltic States, adopted on 13 January 1983 (1982-1983 EUR.PARL.DOC (no.7.908) 432-33 (9183)), read as follows: “The European Parliament, ... Having regard to the bilateral peace treaties between the Soviet Union and the Baltic states in Dorpat (February 2, 1920), Moscow (July 12, 1920) and Riga (August 11, 1920), in which the Soviet Union guaranteed the three Baltic states the inviolability of their territory and eternal peace, Having regard to Article VIII of the Final Act of the Helsinki Conference on Security and Cooperation, which secures the right of self-determination of peoples and their right, in full freedom, to determine, when and as they wish, their internal and external political status, Condemning the fact that the occupation of these formerly independent and neutral states by the Soviet Union occurred in 1940 pursuant to the Molotov-Ribbentrop Pact, and continues, Whereas the Soviet annexation of the three Baltic states has still not been formally recognised by most European states and the USA, Canada, the United Kingdom, Australia and the Vatican still adhere to the concept of Baltic states, ... Calls on the Conference of Foreign Minister meeting in political cooperation to attempt to form a common favourable approach to the declaration addressed to the United Nations in 1979, Suggests that they submit the issue of the Baltic states to the Decolonisation Subcommittee on the U.N., ... Expresses the hope that the Conference of Foreign Ministers will use their best endeavours to see that the aspirations of the peoples of these states as to their form of government is realised, Instructs its President to forward this resolution to the Foreign Ministers of the Member States of the European Community meeting in political cooperation, and to the governments of the Member States.” REPORTS AND RESOLUTIONS OF COUNCIL OF EUROPE BODIESThe Parliamentary Assembly of the Council of Europe The Parliamentary Assembly of the Council of Europe The Parliamentary Assembly of the Council of Europe 85. Resolution 189 (1960) of the Parliamentary Assembly of the Council of Europe, entitled “Situation in the Baltic States on the twentieth anniversary of their forcible incorporation into the Soviet Union”, adopted on 29 September 1960, reads as follows: “1. The Assembly, 2. On the twentieth anniversary of the occupation and forcible incorporation into the Soviet Union of the three European States of Estonia, Latvia and Lithuania, 3. Notes that this illegal annexation took place without any genuine reference to the wishes of the people; 4. Expresses sympathy with the sufferings of the Baltic peoples and assures them that they are not forgotten by their fellow Europeans; 5. Is confident that Communist oppression will not succeed in crushing their spirit and faith in freedom and democracy; 6. Notes that the independent existence of the Baltic States is still recognised de jure by a great majority of the Governments of the nations of the free world; 7. Urges member Governments to support appropriate efforts of Baltic refugees to maintain their natural culture, traditions and languages, in anticipation of the time when Estonia, Latvia and Lithuania will be able to play their part as free nations in our democratic international institutions.” 86. The relevant parts of Resolution 872(1987) of the Parliamentary Assembly of the Council of Europe, entitled “Situation of the Baltic peoples”, adopted on 28 January 1987, read as follows: “The Assembly, ... 3. Recalling that the incorporation of the three Baltic states into the Soviet Union was and still is a flagrant violation of the right to self-determination of peoples, and that it remains unrecognised by the great majority of European states and many members of the international community; 4. Considering that the elimination of the international problems created by this incorporation demands solutions on the basis of the international obligations entered into by the Soviet Union and other members of the international community; ... 6. Deploring the fact that, as a result of forced immigration into their area, the Baltic peoples are brought under pressure to assimilate, and that the lack of possibilities for education and cultural expression of their own is leading towards the loss of national identity; ... 12. Appeals to the Government of the Soviet Union to respect the right to self ‑ determination and the human rights in the Baltic states; 13. Invites the governments of member states of the Council of Europe at the CSCE Conference in Vienna and, if need be, at further CSCE meetings to draw the attention of participating states to the serious violations of human rights and the right to self ‑ determination in the three Baltic states.” The European Commission against Racism and Intolerance (ECRI) 87. On 9 December 2011 the European Commission against Racism and Intolerance (ECRI) during the fourth monitoring cycle adopted a report on Latvia, which includes an assessment of the situation following the adoption of the Andrejeva judgment (emphasis as in the original): “129. ECRI would also like to express its concern in connection with certain measures taken by the Latvian authorities further to the [Court’s] judgment in Andrejeva v. Latvia ... ECRI was informed that further to this judgment, the authorities submitted amendments to the State Pensions Act which “levelled down” the pension entitlements for both citizens and “non-citizens”, thus treating citizens less favourably than before. These amendments are still pending. ECRI once again stresses the negative impact that the amendments, should they be adopted, may have on interethnic relations. 130. ECRI notes that in February 2011, the Constitutional Court declared that the provision of the State Pensions Act that was of issue in Andrejeva v. Latvia was not in breach of the Latvian Constitution. The court rejected the claims of the applicants (similar to those of Andrejeva) on grounds that Ms Andrejeva’s case was exceptional for she was physically working in the territory of Latvia. ECRI observes that the Constitutional Court’s decision, at best, gives a very narrow interpretation of the [Court’s] judgment. 131. Furthermore, ECRI has been informed that bilateral agreements have been signed with Russia, Ukraine and Belarus in order to cover “non-citizens” pensions for employment periods spent in former USSR republics. ECRI notes that this approach, while positive for those who have worked in the above republics and who would otherwise have received a curtailed pension, fails to address the “non-citizens” who have worked in the remaining 9 former USSR republics, in respect of which a bilateral agreement has not been signed. This, according to the [Court’s] Andrejeva judgment, amounts to discrimination. 132. ECRI recommends that the Latvian authorities implement the judgment of the [Court] in a manner that will not have a negative impact on interethnic relations, namely by using it to reduce existing pension entitlements of citizens .” 88. Following the fifth monitoring cycle, the ECRI report on Latvia, adopted on 4 December 2018, includes the following assessment of the status of “permanently resident non-citizen” of Latvia (footnotes omitted; emphasis as in the original): “Non-citizens” 55. According to the CSB January 2017 data, there were 222 847 so-called “non ‑ citizens” residing in Latvia, accounting for 11.4% of the country’s population. The majority of them are ethnic Russians. They are a special category of persons, citizens of the former USSR who were residents in Latvia on 1 July 1991 and who do not possess citizenship of any other country. The term “non-citizens” does not cover foreign nationals. Although they do not have the same rights as citizens, the United Nations High Commissioner for Refugees (UNHCR) points out that the “non-citizens” enjoy the right to reside in Latvia ex lege and a set of rights and obligations generally beyond the rights prescribed by the 1954 Convention Relating to the Status of Stateless Persons, including protection from removal, and as such the “non-citizens” may currently be considered persons to whom the Convention does not apply in accordance with its Article 1.2(ii). 56. Since ECRI’s last report, the number of “non-citizens” has further declined (326 735 persons in 2011, who then made up 14.6% of the population). This is partially due to demographic factors and mortality, as around 40% of “non-citizens” are 60 years or older. At the same time, the number of naturalisations has also declined but now stabilised at approximately 1 000 per year. According to the authorities, 98% of “non ‑ citizen” applicants pass the necessary naturalisation exams, although not all of them on their first attempt. According to a 2016 survey carried out by the Office for Citizenship and Migration Affairs, among “non-citizens”, the personal reasons why respondents did not want to apply for naturalisation have changed. In previous years, the Latvian language requirement and the fees had been mentioned as obstacles. These no longer feature strongly among the reasons given. Instead, the advantages of visa-free travel to the Russian Federation and eligibility for a then more advantageous Russian pension are highlighted by many respondents. In addition, many “non-citizens” refuse to apply for naturalisation out of principle, as they believe they should be granted Latvian citizenship automatically. These reasons and sentiments were also confirmed to ECRI by various representatives of “non-citizen” organisations. 57. The Latvian authorities underlined that instead of making the “non-citizen” status more equal to that of citizens, it is their stated aim to eventually abolish this category by promoting and facilitating naturalisations ... ... 59. Further steps taken by the authorities to promote the naturalisations of “non ‑ citizens” include information-days organised in municipalities with a high proportion of “non-citizens” among the residents, during which details of the naturalisation process are explained. The authorities, through the Society Integration Fund, also provide free Latvian language classes for “non-citizens” in preparation for their naturalisation exams, as recommended by ECRI in its last report. While ECRI commends the authorities for this measure, it also received information that these language classes, at times, fill up very quickly, resulting in insufficient capacity for all “non-citizens” who wish to enrol. This problem might grow, if the authorities’ efforts to promote naturalisation are successful. 60. ECRI recommends that the authorities ensure that sufficient places are available for “non-citizens” wishing to enrol in Latvian language courses free of charge in preparation for their naturalisation exams. ” The Advisory Committee on the Framework Convention for the Protection of National Minorities (FCNM) 89. The Advisory Committee on the Framework Convention for the Protection of National Minorities (FCNM), second opinion on Latvia, adopted on 18 June 2013, includes the following assessment (footnotes omitted): “139. The Advisory Committee further notes research pointing to differences among ethnic groups also with regard to access to social services, mainly due to the fact that Latvians are better informed of their rights and have the relevant networks to insist on obtaining the social assistance that is available. It refers in this context in particular to the large elderly population among national minorities that still faces considerable language barriers. Regarding access to pensions, the Advisory Committee regrets that the 2009 Andrejeva judgment of the [Court] has not led to a comprehensive solution regarding the calculation of pensions of citizens and “non-citizens”. It notes the Government’s view that the judgment has been implemented by signing bilateral agreements with the Russian Federation and a number of other countries in which “non ‑ citizens” spent periods of employment under the Soviet Union, but remains concerned by the fact that these agreements do not cover all former republics of the Soviet Union and are therefore not suitable to address the situation vis-à-vis all “non ‑ citizens”.” THE LAW PRELIMINARY REMARKSThe first applicant’s death The first applicant’s death The first applicant’s death 90. The Court notes at the outset that the first applicant, Mr Jurijs Savickis, died while the application was pending before the Court, and that no heir or close relative has expressed the wish to pursue the application on his behalf (see paragraph 20 above). It is the Court’s usual practice to strike applications out of the list of cases in the absence of any heir or close relative who has expressed the wish to pursue an application (see, among many other examples, Mraović v. Croatia (striking out) [GC], no. 30373/13, § 24, 9 April 2021). The Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols that would require the Court to continue the examination of that part of the application pursuant to Article 37 § 1 in fine of the Convention. It is therefore appropriate to strike this particular application out of the list of cases in so far as the first applicant is concerned (Article 37 § 1 (c) of the Convention). 91. Nevertheless, for practical reasons, Mr Savickis will continue to be called “the first applicant” in the present judgment, and the name of the case will not be changed (see, mutatis mutandis, Ahmet Sadık v. Greece, 15 November 1996, § 3, Reports 1996-V; Dalban v. Romania [GC], no. 28114/95, § 1, ECHR 1999-VI; Vasiljević and Drobnjaković v. Serbia (dec.), nos. 43987/11 and 51910/15, § 42, 28 January 2020; and Ghavalyan v. Armenia, no. 50423/08, § 60, 22 October 2020). Any mention of “the applicants” in the remainder of this judgment must be understood as referring to the four remaining applicants. Scope of the caseThe parties’ arguments The parties’ arguments The parties’ arguments 92. The respondent Government argued, first of all, that the scope of the case should be limited to those complaints which the applicants had brought before the District Administrative Court and the Constitutional Court. Accordingly, the case should be limited to the employment periods and the years of compulsory military service which had accrued outside the territory of Latvia prior to 1 January 1991 and were not included in the calculation of the relevant retirement pensions. 93. Regarding the scope of the present case, the respondent Government emphasised that its subject matter was neither an entitlement to an old-age pension – as each of the applicants was insured and received an old-age pension – nor any difference between the applicants and Latvian nationals in respect of the period since the restoration of Latvia’s independence in 1990 ‑ 91. Instead, the dispute is whether, in calculating supplements to the applicants’ pensions paid by Latvia, the Latvian authorities were obliged, under the relevant rules and principles of international law, to take account of employment and military service carried out outside Latvia during Latvia’s illegal occupation and annexation by the Soviet Union. 94. The applicants submitted that their requests before the Court were the same as those raised before the domestic authorities. They also noted that the conclusions made by the Court in the case of Andrejeva v. Latvia [GC], (no. 55707/00, ECHR 2009) were applicable to every “permanently resident non-citizen” of Latvia. Furthermore, the same discriminatory distinction was made in calculating the disability pension and the widow’s pension, as well as in calculating unemployment benefits. The Court’s assessment 95. The Court reiterates that, for the purposes of Article 32 of the Convention, the scope of a case “referred to” it in the exercise of the right of individual application is determined by the applicant’s complaint or “claim”, which consists of two elements: factual allegations and legal arguments. By virtue of the jura novit curia principle the Court is not bound by the legal grounds adduced by the applicant under the Convention and the Protocols thereto. In contrast, the Court cannot rule beyond or outside what is alleged by the applicants. Thus, it cannot rule on the basis of facts not covered by the complaint, it being understood that while the Court has jurisdiction to review circumstances complained of in the light of the entirety of the Convention or to “view the facts in a different manner”, it is nevertheless limited by the facts presented by the applicants (see Denis and Irvine v. Belgium [GC], nos. 62819/17 and 63921/17, §§ 99-101, 1 June 2021). 96. The Court notes that both the applicants’ constitutional complaints and the scope of review by the Constitutional Court encompassed all the employment periods and equivalent periods, as provided for in Paragraph 1 of the transitional provisions of the State Pensions Act. While only employment periods, compulsory military service, and parental leave periods were relevant in respect of the applicants, this distinction was not made by the Constitutional Court in its judgment. Additionally, the refusal to award an early retirement pension was the subject matter of the third applicant’s constitutional complaint and thus this matter also falls within the scope of the review before the Court. 97. Moreover, the Court has consistently held in its case-law that the Convention does not provide for the institution of an actio popularis and that its task is not normally to review the relevant law and practice in abstracto, but to determine whether the manner in which they were applied to or affected the applicants gave rise to a violation of the Convention (see Roman Zakharov v. Russia [GC], no. 47143/06, § 164, ECHR 2015, with further references). While the present case only deals with the calculation of the applicants’ retirement pensions and the entitlement to early retirement pension, the Court notes that the impugned legal provision –Paragraph 1 of the transitional provisions of the State Pensions Act – serves to determine the “insurance period”, which might then be used for a variety of calculations for the purposes of attributing welfare benefits. Therefore, the Court observes that at the domestic level, the problem might indeed be broader than the issues put before it in the present case. Of course, as it has just emphasised, the Court must act within the confines of the present case. However, as with most complaints of alleged discrimination in a welfare or pensions system, the issue before the Court for consideration goes to the compatibility of the system with Article 14, not to the individual facts or circumstances of the particular applicants or of others who are or might be affected by the legislation. It is therefore appropriate to look at the system as a whole (see British Gurkha Welfare Society and Others v. the United Kingdom, no. 44818/11, § 63, 15 September 2016, and J.D. and A. v. the United Kingdom, nos. 32949/17 and 34614/17, § 100, 24 October 2019). Latvia’s State continuity doctrineThe parties’ arguments The parties’ arguments The parties’ arguments (a) The respondent Government 98. The respondent Government considered that the State continuity doctrine, as expounded in the judgment of the Constitutional Court of 17 February 2011, is of utmost importance and must be taken into account by the Court in order to reach an equitable solution of the present case. In this regard, the respondent Government recalled the historical events as summarised in paragraphs 12-14 above. They noted that for fifty years (from 1940 until 1990-91), the entire territory of Latvia was under unlawful occupation and effective physical control by the USSR, in clear violation of international law. Nevertheless, according to the doctrine of State continuity, the Republic of Latvia continued to exist de jure throughout this period of occupation and annexation. 99. For the same reason, Latvia is not and cannot be a successor to the rights and liabilities of the former Soviet Union. In the light of the customary rules of State responsibility under international law, any legal obligations directly emanating from the above violation of international law, including those related to payments of social security benefits, fall to the occupying State which exercised effective control and jurisdiction over the territories and persons during the years in question, namely, the USSR and its successor, the Russian Federation. In this regard, the respondent Government referred to the advisory opinion of the International Court of Justice in the Namibia case ( Advisory Opinion on Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), [1971], ICJ Reports 16, p. 56), as well as to the Court’s own judgments in the cases of Cyprus v. Turkey [GC] (no. 25781/94, ECHR 2001 ‑ IV); Catan and Others v. the Republic of Moldova and Russia [GC] (nos. 43370/04 and 2 others, ECHR 2012 (extracts)); and Ukraine v. Russia (re Crimea) [GC] (dec.) (nos. 20958/14 and 38334/18, 16 December 2020). Since Latvia did not exercise such effective control or jurisdiction, no obligation in the field of social security for the disputed years could fall on this State. To conclude otherwise would lead to a manifestly unreasonable interpretation of the Convention, that is, directly deriving a legal benefit from an illegal act, in violation of the legal maxim “ ex injuria ius non oritur ”. (b) The applicants 100. The applicants considered that the State continuity doctrine was not relevant for the purposes of the present case. Although the Republic of Latvia was indeed not directly responsible for the actions of the former Soviet Union, it could not simply ignore the de facto interruption of its statehood for fifty years. Moreover, Latvia was required to fulfil obligations in the field of fundamental rights that it had undertaken both at the domestic level and by ratifying the Convention. Even if Latvia was not a successor State to the USSR, it had expressly assumed responsibility for former Soviet citizens who settled in that country during the Soviet period. In this regard, the applicants referred to the Declaration of 4 May 1990 on the Restoration of Independence of the Republic of Latvia, in which Latvia expressly took the commitment “to guarantee social, economic and cultural rights ... to citizens of the USSR who wish to live in Latvia without acquiring Latvian nationality” (see paragraph 61 above). The applicants therefore invited the Court to reaffirm its finding in the Andrejeva judgment according to which the respondent Government’s reference to the State continuity doctrine is “misconceived” (ibid., § 78). Submissions of the third-party intervener 101. The Russian Government stated that, during the period in question, Latvia had been a full-fledged part of the Soviet Union. They submitted that the terms “Soviet occupation”, “Sovietisation” and “Russification” were controversial and extra-legal categories which could not justify the application of discriminatory provisions thirty years after Latvia had become independent. The Court’s assessment 102. The Court points out that its jurisdiction is delineated by Article 19 of the Convention, according to which its sole duty is “[t]o ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto”. Accordingly, the Court is not empowered to pass formal judgment on the legality or legitimacy of any transfer of sovereignty under international law (see Ukraine v. Russia (re Crimea) [GC] (dec.), nos. 20958/14 and 38334/18, § 339, 16 December 2020), be it current or historical. Moreover, in principle, given the subsidiary nature of the Convention system, it is not the Court’s task to substitute itself for the domestic courts, particularly in cases where they assess facts of some historical sensitivity (see, among many other authorities, Vasiliauskas v. Lithuania [GC] (no. 35343/05, § 160, ECHR 2015). 103. On the other hand, the Court has always held that the provisions of the Convention cannot be interpreted and applied in a vacuum. Despite its specific character as a human rights instrument, the Convention is an international treaty to be interpreted in accordance with the relevant norms and principles of public international law. Thus, the Court has never considered the provisions of the Convention to be the sole frame of reference for the interpretation of the rights and freedoms enshrined therein. On the contrary, it must also take into account any relevant rules and principles of international law applicable in relations between the Contracting Parties (see, among many other authorities, Al-Dulimi and Montana Management Inc. v. Switzerland [GC], no. 5809/08, § 134, 21 June 2016, and Naït-Liman v. Switzerland [GC], no. 51357/07, § 174, 15 March 2018). The Court has also repeatedly held that, while it is not its function to deal with errors of fact or law allegedly committed by national courts – unless and in so far as they may have infringed rights and freedoms protected by the Convention and unless that domestic assessment is arbitrary or manifestly unreasonable – it can accept certain well-known historical truths and base its reasoning on them. This principle also applies where domestic law refers to rules of general international law or international agreements, and where domestic courts apply principles of international law (see Vasiliauskas, cited above, ibid., with further references). However, the Court is empowered to do so in so far as and only to the extent necessary for the exercise of its competence under Article 19 of the Convention as defined above (see Ukraine v. Russia (re Crimea), decision cited above, § 341). 104. As far as Latvia is concerned, the Court notes that its official position as expounded in the judgment of the Constitutional Court of 17 February 2011 and in the written observations of the respondent Government in the present case (see paragraphs 55 and 98-99 above) may be summarised as follows. Latvia (as well as the neighbouring Baltics States of Lithuania and Estonia) was a victim of aggression, unlawful occupation and annexation on the part of the former Soviet Union, starting from 1940. Therefore, Latvia is not a successor state to the USSR; it retains the statehood that existed when its independence was lost de facto in 1940 but which nevertheless remained in place de jure throughout the entire Cold War period. In other words, Latvia never disappeared de jure, although its independence was forcibly interrupted de facto for a half-century as a result of a blatant breach of international law. 105. The Court notes that it has itself repeatedly referred to the version of historical events as described above in the “Facts” part of its judgments and decisions in cases against the three Baltic States (see Kolk and Kislyiy v. Estonia (dec.), nos. 23052/04 and 24018/04, ECHR 2006 ‑ I; Penart v. Estonia (dec.), nos. 14685/04, 24 January 2006; Ždanoka v. Latvia [GC] (no. 58278/00, §§ 12-13, ECHR 2006 ‑ IV); Kuolelis and Others v. Lithuania (nos. 74357/01 and 2 others, § 8, 19 February 2008); Vasiliauskas, cited above, §§ 11-14; and Sõro v. Estonia (no. 22588/08, § 6, 3 September 2015). Moreover, in one case, the Court itself defined the situation of Latvia (and therefore of all three Baltic States) as “unlawful occupation” (see Likvidējamā p/s Selga and Vasiļevska v. Latvia (dec.), nos. 17126/02 and 24991/02, § 5, 1 October 2013). Finally, the European Commission of Human Rights clearly stated that “Lithuania [could not] be seen as a successor of the Soviet Union in respect of ... debts [arising from fixed term internal state bonds] and ha[d] not made any legal undertaking to compensate those of its citizens who [were] holders of the bonds” (see the Commission decision in Jasinskij v. Lithuania ((dec.), no. 38985/97, 9 September 1998). 106. The Court perceives no reason to depart from this assessment of the relevant historical facts as consistently described in its earlier judgments and decisions, especially since, so far as the Court can see, it corresponds to the general stance of the majority of the free democratic States of the world during the Cold War, as defined and summarised by the Parliamentary Assembly of the Council of Europe and the European Parliament (see paragraphs 84-86 above). It agrees with the respondent Government that this doctrine is prima facie relevant in the circumstances of the present case; accordingly, it will be duly taken into account when deciding on the merits of the application. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION, READ IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL No. 1 to the convention 107. The applicants complained that, due to their status as “permanently resident non-citizens”, the employment and equivalent periods which they had accrued prior to 1991 outside the territory of Latvia in other parts of the former USSR had not been included in the calculation of the “insurance period” used as a reference in determining the amount of their retirement pensions and eligibility for an early retirement pension. Accordingly, they had been treated less favourably than citizens of Latvia, in breach of Article 14 of the Convention, taken in conjunction with Article 1 of Protocol No. 1. In so far as relevant, those provisions read as follows: Article 14 “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as ... national or social origin, association with a national minority ... birth or other status.” Article 1 of Protocol No. 1 “1. Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” 108. The respondent Government contested that argument, while the Russian Government as the third-party intervener supported it. AdmissibilityCompatibility ratione personae Compatibility ratione personae Compatibility ratione personae (a) The parties’ arguments 109. The respondent Government submitted that under Article 1 of the Convention Latvia could not be held responsible for the employment periods during which the applicants had resided and worked in various republics of the former USSR, but not in Latvia. The applicants’ claims concerned matters that could not be attributed to the Government of Latvia and manifestly fell outside its jurisdiction. In this regard, the Government emphasised the fact that the periods of employment contested by the applicants had been accrued while working for enterprises located in different parts of the former USSR, where, contrary to the circumstances in the Andrejeva case, they had worked for most of their lives, thereby investing in the economy and development of the respective foreign countries. The applicants invoked Latvia’s responsibility and jurisdiction for the entirety of their periods of employment only because they had spent the last years of their employment in Latvia. The claims adduced against Latvia manifestly contradicted the “generally accepted praxis” of States concerning retirement pension entitlements. 110. The respondent Government recognised that in the Andrejeva case, the objection ratione personae had been dismissed. However, in the present case, the applicants had not de facto resided in Latvia during the periods which they had asked to be included in the calculation. The respondent Government considered that the Court should follow the same approach it had taken in the case of Likvidējamā p/s Selga and Vasiļevska v. Latvia (dec.), cited above, where it had held that in the circumstances of the case Latvia could not incur responsibility under the Convention in relation to actions undertaken by an entity operating in another country. The Convention imposed no specific obligation on the States to right injustices or harm caused before they had ratified the Convention, and the undertaking by the Latvian authorities to provide some compensation could not be interpreted as implying that there was an obligation incumbent on Latvia under international law to make any payments at all. 111. The applicants pointed out that this exact argument had already been raised by the Government in the case of Andrejeva, and had been rejected by the Court. They submitted that the applicants’ residence over the contested time periods was of no relevance for the issue of jurisdiction. (b) The Court’s assessment 112. The Court notes that this argument is identical in substance to the objection already raised by the respondent Government in the Andrejeva case and rejected by the Court in the following terms (ibid. , § 57): “57. In the present case, the Court notes that the applicant complained about a measure taken in respect of her by a Latvian public authority – the State Social-Insurance Agency – refusing her part of the pecuniary benefit she had intended to draw from a Law passed by the Latvian Parliament. The dispute raised by the applicant in respect of that measure was examined by the three levels of Latvian courts, which delivered binding decisions on the subject. In the Court’s view, that is easily sufficient to warrant the conclusion that in the context of the present case, the applicant fell within the “jurisdiction” of the respondent State and that the Government’s objection should be dismissed (see, mutatis mutandis, Markovic and Others v. Italy [GC], no. 1398/03, §§ 54-56, ECHR 2006 ‑ XIV) ...” 113. It is true that the applicants in the present case were not physically present in Latvia during the time periods in question, in contrast to Ms Andrejeva. However, this does not alter the fact that they, as permanent residents of Latvia, are still claiming a financial benefit under Latvian law and contesting decisions taken in their regard by the Latvian authorities, including courts. In these circumstances, the Court does not see any difference between Andrejeva and the present case for the purposes of “jurisdiction” within the meaning of Article 1 of the Convention. As to the decision in the case of Likvidējamā p/s Selga and Vasiļevska, cited above and referred to by the respondent Government, the Court points out that the applicants in that case were owners of currency deposited with a foreign bank in another country; the key questions put before the Court were whether the respondent State could be held responsible for the freezing of those assets by that foreign bank, and whether it had any positive obligation under the Convention to take any particular measures in that respect (ibid., §§ 102 and 113). This being so, the Court fails to see the relevance of this reference for the issue at hand, these two cases being fundamentally different. 114. The Court therefore dismisses the respondent Government’s objection. Nevertheless, it considers that the arguments raised to support this objection are closely linked to the merits of the complaint under Article 14 of the Convention. Accordingly, just as it did in the Andrejeva case, the Court will have regard to them in determining whether there has been a violation of that Article (ibid., § 57 in fine ). Compatibility ratione materiae (a) The parties’ arguments (i) The respondent Government 115. The respondent Government submitted that the application was incompatible ratione materiae with the provisions of the Convention, as an alleged violation of Article 1 of Protocol No. 1 had to relate to “possessions”, as defined by the case-law of the Court. There was no right under Article 1 of Protocol No. 1 to receive a social security benefit or pension payment of any kind or amount, unless national law provided for such an entitlement. 116. The respondent Government recognised that the Court had dismissed this argument in the Andrejeva case. However, they emphasised the nature of the alleged property right and the lack of legitimate expectations. Firstly, the additional undertaking by Latvia to provide financial compensation for the years of employment under the jurisdiction of the former Soviet Union in order to redress, at least in some way, the consequences of the years of unlawful occupation, could not be regarded as creating a property right for the applicants falling within the ambit of Article 1 of Protocol No. 1. The geopolitical and historical context ought not to be disregarded by the Court. The Court’s competence in the field of social security was not broad enough to make a State responsible for pecuniary interests originating under the jurisdiction of another State, particularly in view of the margin of appreciation afforded to States with regard to general measures of economic and social strategy. The applicants’ claims fell within the ambit of Article 1 of Protocol No. 1 to the Convention only to the extent that the transitional provisions of the State Pensions Act granted them the right to receive retirement pension concerning the periods of employment in the territory of Latvia. 117. Moreover, the applicants could not have expected, and in fact did not expect, that Latvia would accept any responsibility for the employment periods in the territory of the former USSR. Ms Andrejeva had actually worked and resided in the territory of Latvia during the impugned time periods and had truly believed that these employment periods would be regarded as having been carried out in the territory of Latvia. She had immediately challenged before the administrative court the refusal to include those periods in the calculation of her pension. In contrast, the applicants in the present case had not challenged the accuracy of the calculations and interpretation of the domestic law in their regard. This demonstrated that the applicants had been fully aware that the domestic law had not entitled them to a retirement pension for their employment in the territory of the former USSR and they had had no expectation that Latvia would assume responsibility for those periods. Therefore, the applicants could not claim that the Latvian domestic law or practice had ever created any legitimate expectation that Latvia would assume responsibility for the payment of retirement pensions for work carried out under the jurisdiction of other States. Nor had such an expectation been created by the Court’s judgment in Andrejeva, given that the Court’s ruling had been based on the individual circumstances of that specific case. (ii) The applicants 118. The applicants noted that this objection had already been dismissed by the Grand Chamber in the case of Andrejeva, cited above. They pointed out that Paragraph 1 of the transitional provisions of the State Pensions Act had created an entitlement to a retirement pension in respect of the employment and equivalent periods accrued prior to 1991 in the territory of the former USSR, but had reserved this right to the citizens of Latvia. By virtue of this provision the applicants had been refused a pension for those periods solely because they did not have Latvian citizenship. Had the applicants been Latvian citizens, the respective employment and equivalent periods accrued in the territory of the former USSR would be taken into account in calculating their “insurance period”, which was subsequently used to determine the entitlement to state pensions and the amount thereof. Hence, the applicants’ pecuniary interests fell within the scope of Article 1 of Protocol No.1, which rendered Article 14 applicable. (b) The Court’s assessment 119. As a preliminary point, the Court reiterates that, as the question of applicability of a particular provision of the Convention or its Protocols is an issue of the Court’s jurisdiction ratione materiae, the general rule of dealing with applications should be respected and the relevant analysis should be carried out at the admissibility stage unless there is a particular reason to join this question to the merits. No such particular reason exists in the present case and the issue of the applicability of Article 14 of the Convention, read in conjunction with Article 1 of Protocol No. 1, falls therefore to be decided at the admissibility stage (see Popović and Others v. Serbia, nos. 26944/13 and 3 others, § 46, 30 June 2020, and, mutatis mutandis, Denisov v. Ukraine [GC], no. 76639/11, § 93, 25 September 2018). 120. The Court reiterates that Article 14 of the Convention complements the other substantive provisions of the Convention and its Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded thereby. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts in issue fall within the ambit of one or more of them. The prohibition of discrimination enshrined in Article 14 thus extends beyond the enjoyment of the rights and freedoms which the Convention and the Protocols thereto require each State to guarantee. It applies also to those additional rights, falling within the general scope of any Convention Article, for which the State has voluntarily decided to provide (see, among many other authorities, Andrejeva, cited above, § 74; Carson and Others v. the United Kingdom [GC], no. 42184/05, § 63, ECHR 2010; Fábián v. Hungary [GC], no. 78117/13, § 112, 5 September 2017; and Molla Sali v. Greece [GC], no. 20452/14, § 123, 19 December 2018). 121. The Court notes that the respondent Government’s objection, like the previous one, is identical in substance to that already raised by the respondent Government in the Andrejeva case, cited above, and rejected by the Court in the following terms: “77. The Court has ... held that all principles which apply generally in cases concerning Article 1 of Protocol No. 1 are equally relevant when it comes to welfare benefits ... Thus, Article 1 of Protocol No. 1 does not guarantee as such any right to become the owner of property ... Nor does it guarantee, as such, any right to a pension of a particular amount ... Similarly, the right to receive a pension in respect of activities carried out in a State other than the respondent State is not guaranteed either ... Furthermore, Article 1 of Protocol No. 1 places no restriction on the Contracting State’s freedom to decide whether or not to have in place any form of social security scheme, or to choose the type or amount of benefits to provide under any such scheme. If, however, a Contracting State has in force legislation providing for the payment as of right of a welfare benefit – whether conditional or not on the prior payment of contributions – that legislation must be regarded as generating a pecuniary interest falling within the ambit of Article 1 of Protocol No. 1 for persons satisfying its requirements ... 78. The Government submitted that, from the standpoint of public international law, Latvia had not inherited the rights and obligations of the former Soviet Union as regards welfare benefits. Having regard to its findings in Stec and Others v. the United Kingdom ((dec.) [GC], nos. 65731/01 and 65900/01, ECHR 2005 ‑ X), the Court considers that that argument is misconceived in the instant case. Even assuming that the Government were correct on this point, the conclusion that has to be drawn in this case would be unaffected: where a State decides of its own accord to pay pensions to individuals in respect of periods of employment outside its territory, thereby creating a sufficiently clear legal basis in its domestic law, the presumed entitlement to such benefits falls within the scope of Article 1 of Protocol No. 1. In this connection, the Court notes that the first paragraph of the transitional provisions of the Latvian State Pensions Act creates an entitlement to a retirement pension in respect of aggregate periods of employment prior to 1991 in the territory of the former USSR (“outside Latvia” in the version in force before 1 January 2006), regardless of the payment of any kind of contributions, but that it reserves this right to Latvian citizens. By virtue of this provision, the applicant was refused the pension in question solely because she did not have Latvian citizenship. 79. In the Stec and Others decision (cited above, § 55) the Court held as follows: ‘In cases, such as the present, concerning a complaint under Article 14 in conjunction with Article 1 of Protocol No. 1 that the applicant has been denied all or part of a particular benefit on a discriminatory ground covered by Article 14, the relevant test is whether, but for the condition of entitlement about which the applicant complains, he or she would have had a right, enforceable under domestic law, to receive the benefit in question ... Although [Article 1 of] Protocol No. 1 does not include the right to receive a social security payment of any kind, if a State does decide to create a benefits scheme, it must do so in a manner which is compatible with Article 14.’ 80. It follows that the applicant’s pecuniary interests fall within the scope of Article 1 of Protocol No. 1 and the right to the peaceful enjoyment of possessions which it safeguards. This is sufficient to render Article 14 of the Convention applicable.” 122. The Court does not see any difference between the case of Andrejeva and the present case regarding the applicability ratione materiae of Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1. According to the Court’s well-established case-law, the prohibition of discrimination enshrined in Article 14 generally applies where a Contracting State has in force legislation providing for the payment as of right of a pension or another welfare benefit; that legislation must be regarded as generating a proprietary interest falling within the ambit of Article 1 of Protocol No. 1 for persons satisfying its requirements. If, but for the condition of entitlement under domestic law about which the applicant complains, he or she would have had a right enforceable under domestic law to receive the benefit in question, his or her complaint falls within the scope of Article 1 of Protocol No. 1 and that is sufficient to render Article 14 of the Convention applicable ratione materiae (see J.D. and A. v. the United Kingdom, cited above, § 63). This being so, the Court cannot but dismiss the respondent Government’s objection for the same reasons as stated in §§ 77-80 of the Andrejeva judgment (see also, mutatis mutandis, Gaygusuz v. Austria (16 September 1996, § 40, Reports 1996 ‑ IV); Stummer v. Austria [GC], no. 37452/02, § 88, ECHR 2011; Fábián, cited above, § 117; and Ribać v. Slovenia, no. 57101/10, §§ 43-45, 15 December 2017). 123. As to the particular questions raised by the respondent Government, namely, to what extent the Court’s overall reasoning in Andrejeva was conditioned by the particular factual circumstances of that case, whether it is transposable to the present case, and whether the applicants might have had any “legitimate expectations” for the purposes of Article 1 of Protocol No. 1 given their physical absence from the Latvian territory during the contested periods, these relate to the merits of the application and will be examined by the Court under the respective head. Six-month time-limit (a) The parties’ arguments 124. The respondent Government referred to the decisions whereby the second, the fourth and the fifth applicants had initially been granted their retirement pensions. As these applicants had not appealed against the relevant decisions, they had entered into force and should be regarded as the “final decisions” for the purposes of the six-month time-limit. The respondent Government also submitted that the applicants should have been well aware that their retirement pensions could only be recalculated on the basis of either the State Pensions Act or bilateral international agreements. Accordingly, their reopening requests before the administrative courts had had no legal basis and it had been inevitable that they would be dismissed. 125. With regard to the allegation that the Constitutional Court’s ruling of 17 February 2011 should be regarded as the final decision, the respondent Government noted that nothing had prevented the applicants from lodging a constitutional complaint immediately after their retirement pensions had been granted. The applicants had not adduced any arguments to justify their inactivity of up to ten years. 126. In the respondent Government’s view, both the reopening proceedings before the administrative courts and the constitutional proceedings were to be regarded as attempts by the applicants to comply belatedly with the procedural requirements and to restore the running of the six-month time-limit for the purposes of lodging the present application before the Court. 127. The applicants submitted that the remedies used by them had been the only available effective legal avenues and that they had exhausted them in compliance with the requirements of domestic law. The applicants pointed out that Paragraph 1 of the transitional provisions of the State Pensions Act had already been declared constitutional by the Constitutional Court in 2001 in proceedings instituted by twenty members of Parliament (see paragraph 39 above). Accordingly, this claim had already been adjudicated and all the State authorities, including the courts, were bound by the Constitutional Court’s findings. Additionally, a claim having already been adjudicated was an inadmissibility ground under the Constitutional Court Act. The applicants pointed out that, unlike Ms Andrejeva, they disagreed with the contents of the domestic law rather than with its interpretation in their particular cases. 128. Only after the Court delivered its judgment in Andrejeva, cited above, did the legal circumstances change, permitting the applicants to request the reopening of their administrative proceedings. After their reopening requests had been refused the applicants brought constitutional proceedings, save for the third applicant who applied to the Constitutional Court directly. The Constitutional Court instituted the proceedings and delivered a judgment assessing the merits of the applicants’ complaint. The present application was filed within six months of that judgment. (b) The Court’s assessment 129. The Court notes at the outset that the respondent Government’s objection does not apply to the third applicant, who lodged his complaint directly to the Constitutional Court on 22 March 2010, that is, several months before the calculation of his retirement pension (see paragraphs 27 and 48 above). The Court will accordingly examine that objection as only concerning the second, the fourth and the fifth applicants. (i) General principles 130. The object of the time-limit under Article 35 § 1 of the Convention – six months at the time when the present applications were lodged – is to promote legal certainty, by ensuring that cases raising issues under the Convention are dealt with in a reasonable time and that past decisions are not continually open to challenge. It marks out the temporal limits of supervision carried out by the organs of the Convention and signals to both individuals and State authorities the period beyond which such supervision is no longer possible (see Sabri Güneş v. Turkey [GC], no. 27396/06, §§ 39-40, 29 June 2012). 131. The requirements contained in Article 35 § 1 as to the exhaustion of domestic remedies and the six-month period are closely interrelated, as they are not only combined in the same Article, but also expressed in a single sentence whose grammatical construction implies such a correlation. Thus, as a rule, the six-month period runs from the date of the final decision in the process of exhaustion of domestic remedies. Article 35 § 1 cannot be interpreted in a manner which would require an applicant to inform the Court of his complaint before his position in connection with the matter has been finally settled at the domestic level, otherwise the principle of subsidiarity would be breached. However, this provision allows only remedies which are normal and effective to be taken into account, as an applicant cannot extend the strict time-limit imposed under the Convention by seeking to make inappropriate or misconceived applications to bodies or institutions which have no power or competence to offer effective redress for the complaint in issue under the Convention (see, among many other authorities, Lekić v. Slovenia [GC], no. 36480/07, § 65, 11 December 2018). Thus, the pursuit of remedies which do not satisfy the requirements of Article 35 § 1 will not be considered by the Court for the purposes of establishing the date of the “final decision” or calculating the starting point for the running of the six ‑ month rule (see Jeronovičs v. Latvia [GC], no. 44898/10, § 75, 5 July 2016). 132. As a general rule, an application for the reopening of proceedings is not an effective remedy (see Berdzenishvili v. Russia (dec.), no. 31697/03, ECHR 2004-II; Tucka v. the United Kingdom (no. 1) (dec.), no. 34586/10, 18 January 2011; and Haász and Szabó v. Hungary, nos. 11327/14 and 11613/14, §§ 36-37, 13 October 2015), and, as such, does not interrupt the running of the six-month time-limit, except when it is the only judicial avenue available to the applicant in the circumstances of the case (see Ahtinen v. Finland (dec.), no. 48907/99, 31 May 2005, and Tomaszewscy v. Poland, no. 8933/05, §§ 117-19, 15 April 2014). 133. If the request for reopening of the proceedings is dismissed, the respective decision is not the “final decision” for the purposes of Article 35 § 1 and cannot be taken as the starting point of the six-month time-limit (see Sapeyan v. Armenia, no. 35738/03, § 23, 13 January 2009). If, however, proceedings are reopened or a final decision is eventually reviewed, the running of the six-month period in respect of the initial set of proceedings or the final decision will be interrupted, but only in relation to those Convention issues which served as a ground for such a review or reopening and were the subject of examination before the extraordinary appeal body (ibid., § 24). Finally, if an application for extraordinary review has not led to the reopening of the initial proceedings, but the domestic courts have nevertheless been provided with the opportunity of addressing the core of the human rights issues that the applicant subsequently brought before the Court and did address them, then the running of the six-month time-limit has to be considered to have restarted (see Schmidt v. Latvia, no. 22493/05, §§ 66-67 and 70-71, 27 April 2017). 134. Regarding the Constitutional Court of Latvia – and as the European Court of Human Rights has already established on several occasions – its jurisdiction is limited to reviewing the constitutionality of legal provisions and their compatibility with provisions of superior legal force. Accordingly, for the purposes of Article 35 § 1 of the Convention, applicants are required to avail themselves of this remedy only if they are challenging a provision of a statute or a regulation as being as such contrary to the national Constitution or the Convention; in other words, if the alleged violation stems from a legal norm itself. On the other hand, the procedure of an individual constitutional complaint is not an effective remedy where the applicant is complaining of an allegedly erroneous application or interpretation of a legal provision which, in its content, is not unconstitutional (see Elberte v. Latvia, no. 61243/08, §§ 79-80, 13 January 2015, with further references). In such cases a constitutional complaint does not interrupt the running of the six ‑ month time-limit. (ii) Application of these principles in the present case 135. In the present case, the Court notes that the initial calculation of each of the applicants’ pensions (except for the third applicant, as stated above) took place between 1999 and 2008, and that none of them appealed against the respective domestic decisions. On 18 February 2009 the Court delivered its judgment in the case of Andrejeva, cited above. On 14 August 2009 the applicants requested that their pensions be recalculated in the light of the Andrejeva judgment. These requests were refused. The applicants brought proceedings before the District Administrative Court, seeking the reopening of their proceedings on the basis of the Andrejeva judgment in accordance with domestic law. By final decisions of 20 November 2009, 27 November 2009, and 16 December 2009, the District Administrative Court dismissed the applicants’ complaints, declaring that the Andrejeva judgment did not warrant a reopening of their cases. On 5 March 2010 the applicants applied to the Constitutional Court, petitioning it to overrule and overturn its previous approach in relation to Paragraph 1 of the transitional provisions of the State Pensions Act (defined in 2001), and to make a new judgment on the basis of the Grand Chamber judgment in Andrejeva. The Constitutional Court delivered a judgment on the merits of the applicants’ arguments (including the circumstances of each individual case) on 17 February 2011. 136. In the Court’s view, the applicants’ requests for reopening of the administrative proceedings before the District Administrative Court and the subsequent individual complaint before the Constitutional Court must be regarded as a single set of proceedings, ultimately aimed at obtaining the recalculation of their pensions following the Court’s judgment in the Andrejeva case. It is true that the applicants remained passive for a long time after the initial calculation of their pensions. However, the Court accepts that they could have believed, realistically and in good faith, that their legal situation had changed after the delivery of the Andrejeva judgment, which they considered as giving them a fresh opportunity to obtain a recalculation of their pensions – either immediately, or, if need be, after a formal invalidation of the impugned legal provision by the Constitutional Court. This was especially so because, unlike the Constitutional Court in its judgment of 17 February 2011, the Andrejeva judgment expressly refused to attribute a decisive role to the distinction between working in the territory of Latvia or outside it (ibid., § 85). What this Court considers decisive is the fact that the Constitutional Court did indeed consider the applicants’ constitutional complaints to be procedurally admissible under domestic law, agreed to examine them on the merits, and gave a meticulously reasoned judgment addressing the same human-rights issues that the applicants are now bringing before this Court (see, mutatis mutandis, Schmidt, cited above, §§ 68-71). 137. In consequence, in the particular circumstances of the present case, the Court considers that the judgment of the Constitutional Court of 17 February 2011 was indeed the “final decision” for the purposes of Article 35 § 1, and that the six-month time-limit has to be counted from the date of its delivery. The present application, lodged with the Court on 4 August 2011, has therefore been submitted within the six months following the latter date. For this reason, the respondent Government’s objection must be dismissed. Objections with respect to specific applicants (a) The second applicant (i) The parties’ arguments 138. The respondent Government argued that the second applicant’s reopening request, brought before the administrative courts, had only concerned the inclusion of the employment periods accrued in the territory of the former USSR but had not mentioned the periods of compulsory military service. Furthermore, the applicant had not submitted to the domestic authorities any documents allowing them to establish the country where that service had been carried out. Accordingly, in so far as it concerned the exclusion of the compulsory military service, the second applicant’s complaint should be rejected for non-exhaustion of domestic remedies or as manifestly ill-founded. 139. The applicants responded that there were no effective domestic remedies with respect to the periods of compulsory military service. As Latvian citizens had only to prove the fact of service, they could obtain the inclusion of those periods by showing their employment record and their military identity card. Those documents indicated the territory from where the person had been conscripted but not the location where the compulsory military service had been served. In contrast, a “permanently resident non ‑ citizen” was required to prove the exact location of the military service. For that purpose, he was required to contact the archives of the respective foreign armed forces, for a fee, without necessarily having the corresponding linguistic abilities and with no certainty that such data were available. (ii) The Court’s assessment 140. The Court notes at the outset that the respondent Government themselves have asserted the ineffectiveness of the reopening requests brought by the applicants before the administrative courts for the purposes of Article 35 § 1 of the Convention (see paragraph 124 above). That being so, the Government’s assertion that the applicants should have raised a particular point of fact by way of that same procedure seems unsustainable. In any event, the Court reiterates that non-exhaustion of domestic remedies cannot be held against an applicant if, in spite of the latter’s alleged failure to observe the forms prescribed by law, the competent authority has nevertheless examined the substance of the exact claim that he or she is bringing before the Court (see Vladimir Romanov v. Russia, no. 41461/02, § 52, 24 July 2008, and Ulemek v. Croatia, no. 21613/16, § 77, 31 October 2019). In the present case, it appears that the Constitutional Court had declared the second applicant’s constitutional complaint procedurally admissible in its entirety and examined it with regard to all the disputed periods, without distinguishing between them (see paragraph 51 above). In these circumstances, the applicant cannot be blamed for not exhausting the domestic remedies, and the respondent Government’s objection must be dismissed. (b) The third applicant (i) The parties’ arguments 141. The respondent Government pointed out that the administrative proceedings which the third applicant had brought against the refusal to grant his early retirement claim, had been left without examination on procedural grounds. Additionally, when he had later been granted the retirement pension, which excluded the compulsory military service period, he had not appealed against that decision. He had also failed to institute constitutional proceedings in that regard, as his constitutional complaint had only addressed the refusal to grant him an early retirement pension. Furthermore, as pointed out by the Constitutional Court, following the entry in force of the Latvia-Russia Social Security Agreement the applicant could have requested a recalculation of his pension and the inclusion of the compulsory military service period carried out in Russia. However, unlike the other applicants, the third applicant failed to do so, thus failing to exhaust the domestic remedies. 142. The applicants reiterated their arguments concerning the procedural difficulties in identifying the country where compulsory military service had been carried out (see paragraph 139 above). They argued that the entry in force of the bilateral agreement had not fully eradicated the difference in treatment between citizens and “permanently resident non-citizens”; instead it had shifted this difference from the substantive law to the procedural law. While Latvian citizens were only required to submit a limited number of easily available documents, the “permanently resident non-citizens” were required to turn to the archives of foreign armed forces. The applicants submitted that there were several such archives in Russia, where the relevant information would need to be sought against a fee. Additionally, irreparable damage had been suffered prior to the entry into force of the relevant bilateral agreements, when the refusal to include those periods had been in accordance with domestic law and no domestic remedies had been available. (ii) The Court’s assessment 143. The Court points out that the third applicant’s complaint concerns both the refusal to grant him an early retirement pension and also the subsequent failure to include the period of compulsory military service in the calculation of his retirement pension. When this applicant lodged his constitutional complaint, he had not yet reached retirement age (see paragraphs 27 and 48 above). Thus, before the Constitutional Court, his complaint indeed concerned only the refusal to grant him the early retirement pension. However, the Court can only reiterate its well-established case-law according to which an applicant cannot be blamed for not exhausting a domestic remedy if, despite his or her alleged failure to observe the requirement set out by law, the competent authority has nevertheless examined the substance of the claim that he or she is raising before the Court (see paragraph 133 above). In the present case, the Constitutional Court did not regard the third applicant’s failure to pursue the administrative proceedings as an obstacle for the institution of proceedings, as the applicant had “substantiated that he could not protect his rights via the general remedies” (see paragraph 48 above). Therefore, with respect to this aspect of his complaint, the Court considers that the third applicant has to be deemed to have exhausted the domestic remedies. 144. The Court further notes that a retirement pension which excluded the compulsory military service period was granted to the third applicant during the constitutional proceedings. The case file contains no information as to whether any supplementary observations were put before the Constitutional Court to that effect. However, it is obvious that the Constitutional Court made no distinction between the question of granting the early retirement pension to the third applicant and the refusal to include certain periods in the calculations in respect of the retirement pension of the other applicants. Instead, it analysed the constitutionality of the legal provision, which provides that with respect to “permanently resident non-citizens” certain employment and equivalent periods are not included in the calculation of their “insurance period” as defined by Latvian law. Thus, on its substance, the judgment of the Constitutional Court covered both aspects of the third applicant’s complaint. Furthermore, after the delivery of the Constitutional Court’s judgment, this remedy was no longer available to the applicant, as this claim had already been adjudicated. 145. In these circumstances, the Court concludes that the third applicant cannot be blamed for not exhausting the domestic remedies, as required by Article 35 § 1 of the Convention. It therefore dismisses the respondent Government’s objection on this point. (c) The fourth applicant (i) The parties’ arguments 146. The respondent Government argued that with respect to the fourth applicant’s employment period in Belarus, a retirement pension had been granted by Belarus prior to the lodging of the present application. Additionally, also prior to the lodging of the present application, the fourth applicant’s pension had been recalculated on the basis of the Latvia-Russia Social Security Agreement, in order to include the employment periods accrued in the territory of Russia. As the fourth applicant had withheld this information from the Court, she had manifestly abused the right of individual application within the meaning of Article 35 § 3 (a) of the Convention. She could also no longer claim to be a victim with respect to those periods. 147. Concerning the alleged employment periods in Germany and the period spent on maternity leave, the respondent Government argued that the fourth applicant had not raised these complaints at domestic level and that they should be rejected for non-exhaustion of domestic remedies. 148. The applicants responded that the information referred to by the Government had been included in the application form. They also argued that the fourth applicant should be considered a victim with respect to the periods included in the calculation on the same grounds as with respect to the first applicant. Furthermore, the fourth applicant’s claim did not cover the employment period in Germany since, at the time of her retirement and as was true also in respect of citizens of Latvia, only the periods accrued in the territory of the former USSR had been taken into account. For the same reasons, no complaint had been brought concerning the period of the voluntary military service. With regard to the periods spent on parental leave, the applicants argued that these periods formed part of the employment periods and were not the subject matter of a separate dispute. (ii) The Court’s assessment 149. The Court reiterates that under Article 35 § 3 (a) an application may be rejected as an abuse of the right of individual application if, among other reasons, it is knowingly based on untrue facts. The submission of incomplete and thus misleading information may also amount to an abuse of the right of application, especially if the information concerns the very core of the case and no sufficient explanation has been provided for the failure to disclose that information. The same applies if important new developments have occurred during the proceedings before the Court and where, despite being expressly required to do so by Rule 47 § 7 of the Rules of Court, the applicant has failed to disclose that information to the Court, thereby preventing it from ruling on the case in full knowledge of the facts. However, even in such cases, the applicant’s intention to mislead the Court must always be established with sufficient certainty (see Gross v. Switzerland [GC], no. 67810/10, § 28, ECHR 2014, with further references). 150. The Court notes at the outset that, contrary to the respondent Government’s allegation, the information about the recalculation of the fourth applicant’s pension on the basis of the Latvia-Russia Social Security Agreement was indeed included in the initial application form. The applicants also stated in the form that the fourth of their number had requested a Belarussian pension but had not yet received a reply, and the respondent Government have provided no documentary evidence establishing that this claim was inaccurate. 151. The Court also rejects the Government’s argument that the fourth applicant has lost her “victim” status. A decision or measure favourable to the applicant is not, in principle, sufficient to deprive him or her of his or her status as a “victim” for the purposes of Article 34 of the Convention unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for the breach of the Convention (see J.D. and A. v. the United Kingdom, cited above, § 64, with further references). This has clearly not been done in the present case. The Court considers that the respondent Government’s argument concerning the alleged absence of victim status rather pertains to the merits of the case and falls to be examined under that head. The allegations of “abuse” and “loss of victim status” must therefore be dismissed. 152. As to the question of the inclusion of parental leave in the calculation of the “insurance period”, the Court once again reiterates the principle that an applicant cannot be blamed for non-exhaustion of domestic remedies if the substance of the claims raised in Strasbourg has been previously examined, in spite of any alleged procedural shortcomings (see paragraph 133 above). In the present case, the entire length of the disputed period was covered by the reasoning of the Constitutional Court’s judgment (see paragraph 51 above); it follows that this objection should also be dismissed. (d) The fifth applicant (i) The parties’ arguments 153. The respondent Government submitted that the fifth applicant’s pension had been recalculated on the basis of the Latvia-Russia Social Security Agreement prior to the lodging the present application, a fact of which she had not informed the Court. Hence, her claim ought to be dismissed for abuse of the right of individual application and loss of victim status. 154. The applicants reiterated that the information concerning the recalculation had been included in the application form and that the fifth applicant should still be regarded as having victim status on the grounds set out above. (ii) The Court’s assessment 155. On the basis of the case file before it, the Court comes to the same conclusions as for the fourth applicant: there is no indication of “abuse”, given that the information about the recalculation of the pension was indeed included in the fifth applicant’s initial application form, and the argument regarding victim status is to be considered as related to the merits of the case (see paragraphs 149-151 above). These objections must consequently also be dismissed. Conclusion on the admissibility of the application 156. The Court notes that the applicants’ complaint under Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1 is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. The application must therefore be declared admissible. MeritsThe parties’ arguments The parties’ arguments The parties’ arguments (a) The applicants 157. The applicants declared that their complaint concerned solely their claim for the inclusion in the calculation of their retirement pensions of those same periods which were included in calculating the equivalent pensions for Latvian citizens; thus, they were not claiming any additional benefits. The failure to include the impugned employment and equivalent periods in the calculation had led to a reduction of the applicants’ overall insurance period and had directly affected the amount of their retirement pensions. It had also barred four of the five applicants from retiring early and had prevented them from benefitting from favourable conditions in determining the initial capital sum that was used to calculate their pensions. As a result, the first, fourth and fifth applicants had received the minimum pension. 158. The applicants reiterated that, had they been Latvian citizens, the respective employment and equivalent periods accrued in the territory of the former USSR would have been taken into account in calculating the “insurance period” which was subsequently used to determine their entitlement to state pensions and the amount thereof. Thus, the impugned difference in treatment had been based solely on nationality. 159. With respect to the legitimate aim of the difference in question, the applicants conceded that it pursued the aim of protecting the country’s economic system. However, they doubted whether this aim still retained its full importance today. Regarding the proportionality of the difference in treatment, the applicants pointed out that the special status of “permanently resident non-citizens” was in substance similar to Latvian citizenship, as it established a special legal bond between the State and the individual. Furthermore, Latvia was the only State with which the applicants had stable legal ties and thus the only State which, objectively, could assume responsibility for them in terms of social security. All of them had lived most of their lives in Latvia; the third applicant had lived there since the age of three. Accordingly, the applicants considered that, irrespective of any circumstantial differences, the facts of the present case could not reasonably be distinguished from those of the above-cited Andrejeva case. In particular, they did not agree that Ms Andrejeva had had a closer legal tie with Latvia than they or any other “permanently resident non-citizens” did. In any event, the status of “permanently resident non-citizen” had been the only aspect invoked by the Court in its finding of a violation in the Andrejeva case. 160. The applicants admitted that, unlike Ms Andrejeva, they had actually lived outside the territory of Latvia during the periods not included in the calculation. However, they referred to paragraph 85 of the Andrejeva judgment, where the aspect of residence had been considered irrelevant. Furthermore, while before the Court the Government tried to distinguish the two cases on the basis of residence, such a distinction had not been made under domestic law. Even now only work carried out for local Latvian enterprises was regarded as “employment in Latvia”. 161. The applicants also submitted that their situation with respect to bilateral agreements was very similar to that of Ms Andrejeva. The Agreement between the Republic of Latvia and Ukraine regarding Cooperation within the Field of Social Security had taken effect prior to Ms Andrejeva bringing her case before the Court, and her pension had been recalculated ex nunc; on the other hand, the agreement with Russia had not entered into force before her death. In Andrejeva, the Government’s objection concerning victim status had been raised belatedly; however, the Court had expressed its position concerning the bilateral agreements by stating that a Contracting State could not be absolved of its responsibility under the Convention on the ground that it was not bound by some type of inter-State treaties (ibid., § 90). 162. In particular, two bilateral agreements (with Belarus and Russia) had entered into force over the course of the domestic proceedings and prior to the present case being brought. Recalculations had been made for certain of the applicants; however, they had only been made ex nunc, as none of the agreements allowed for retrospective payments. Furthermore, employment periods and equivalent periods accrued in other territories of the former Soviet Union remained excluded from the calculation. According to the applicants, the partial inclusion of certain periods in the calculation of their retirement pensions could only have relevance for the calculation of the just satisfaction award under Article 41 of the Convention. 163. The applicants also dismissed the respondent Government’s claim that finding a violation would render the bilateral agreements on social security devoid of purpose. That would only be the case if the aim of those agreements had been to improve the situation of “permanently resident non ‑ citizens” only; however, their scope was much broader. In practice, those agreements did improve the situation of some “permanently resident non ‑ citizens”, to a certain extent; however, such improvements were merely collateral and could not be considered an effective means of eradicating the violation of the Convention caused by the domestic legislation. 164. While the judgment in the above-cited Andrejeva case had concerned only the employment periods accrued outside the territory of Latvia, the applicants argued that the same principles also applied with regard to equivalent periods. This was especially true in respect of compulsory military service, as conscripts had been unable to choose the location of the compulsory military service and were compelled to go where they were sent. There had been no local or ethnic units in the Soviet army at the relevant time. The applicants emphasised that the third applicant had been conscripted from the territory of Latvia where he had lived since the age of three. 165. Finally, the applicants also referred to the findings of the ECRI and the Advisory Committee on the FCNM (see paragraphs 87-89 above) regarding the implementation of the Andrejeva judgment by the Latvian authorities. 166. In summary, the applicants argued that any purported factual differences between their case and that of the applicant in the Andrejeva case was not a reason for the Court to reach a different conclusion. Accordingly, there had been a violation of Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1. (b) The respondent Government 167. The respondent Government declared at the outset that the present case did not concern a refusal to grant the applicants a retirement pension or any other social benefit. Just like Latvian citizens, the applicants were receiving the retirement pension provided by law and were entitled to apply for other social services and assistance. Rather, the applicants claimed that the employment periods accrued outside the territory of Latvia during their residence in other parts of the former USSR prior to the restoration of Latvia’s independence should be taken into account in calculating their pension. In this regard, the respondent Government emphasised that benefits paid on account of employment or military service performed outside Latvia were to be considered as supplements for additional pension payments, and not the core of the old-age pension itself. They reiterated that, when old-age pensions were calculated for employment periods after 1 January 1991, those pensions were calculated in the same manner for both citizens and non-citizens; however, the same approach could not be applied to periods when Latvia was unlawfully occupied by the Soviet Union. 168. The respondent Government once again referred to the doctrine of State continuity, according to which the forcible incorporation of Latvia into the Soviet Union had been contrary to international law and therefore null and void; consequently, Latvia had continued to exist de jure throughout the entire Cold War period; Latvia was not a successor State to the former USSR and could not assume any of its obligations (see paragraphs 98-99 above). 169. According to the respondent Government, upon the restoration of its independence, Latvia had an obligation under international law to assume responsibility only for its own citizens and its own territory. In the light of the erga omnes obligation not to recognise or justify violations of international law, Latvia, as a State that had been illegally occupied as a result of aggression, could not assume responsibility for individuals who entered its territory as a result of the immigration policies imposed by the occupying power. In other words, had Latvia accepted that it had such an obligation under international law, it would have been acting against the prohibition on recognising and justifying the violations of international law committed by the USSR. The respondent Government admitted that the impugned decision by the Latvian legislature had also been guided by the necessity to protect the economic system of the country by avoiding a substantive financial burden. However, considerations of State identity and State continuity as described above had been more important than economic considerations. 170. The respondent Government explained that, after the restoration of its independence, Latvia had created a pension system based on the principle of individual contributions. However, since no pension funds existed at that moment, Latvia voluntarily decided to guarantee a minimum pension to all residents of Latvia, irrespective of their citizenship. Generally speaking, it could hardly be suggested that Latvia ought to have taken responsibility for the full pension entitlements of any person resident on its territory before 1991; instead the obligation to pay pensions for work periods accrued during the occupation fell to the State which had exercised jurisdiction and effective control during the disputed years. Nevertheless, Latvia decided to grant full pension advantages, based on two criteria: first, the beneficiaries’ citizenship, and second, the principle of territoriality. Thus, full pension benefits were awarded, firstly, to all citizens of Latvia, regardless of where in the former USSR they had been employed and had resided, and secondly, to all other persons (“permanently resident non-citizens”, stateless persons, and foreign nationals) to the extent that they had worked in the Latvian territory. This solution was entirely reasonable. On the one hand, Latvia could legitimately assume additional responsibilities with regard to its own citizens, given their special relationship with the State. On the other hand, those non-citizens who had worked in the Latvian territory during the Soviet regime did contribute to the development of Latvia’s economy. 171. The respondent Government considered that the applicants were not in a similar or relevantly comparable situation to that of Latvian citizens. They explained the historical context of the creation of the status of “permanently resident non-citizen” of Latvia. During the Soviet occupation, an extensive influx of civilian workforce and military personnel was artificially organised into the territory of Latvia as a part of a general Sovietisation and Russification policy, resulting in a large-scale transfer of population from the Soviet Union to Latvia. This policy had dramatically altered the ethnic and linguistic composition of society. Referring to the advisory opinion of the International Court of Justice on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (advisory opinion of 7 July 2004, ICJ Reports 2004), the respondent Government emphasised that such population transfers were prohibited under international law. 172. After 1991, according to the doctrine of State continuity, Latvian citizenship was not granted anew, but only restored to those individuals who had held it prior to the occupation, and to their descendants. As a result, a large number of persons present in Latvia were not automatically granted citizenship. For humanitarian reasons, in order to protect them from becoming stateless persons, Latvia created the status of “permanently resident non-citizens”. The respondent Government emphasised that the status of “permanently resident non-citizen” had been intended as a temporary status, and that its holders were expected to eventually obtain either Latvian citizenship or that of another State. In that respect, the respondent Government further explained that after 1994, when the Citizenship Act was adopted, “permanently resident non-citizens” became eligible to acquire Latvian citizenship by way of naturalisation. The requirements for naturalisation included knowledge of the Latvian language, of the basic principles of the Latvian Constitution and of the national anthem, and the basic facts of Latvia’s history and culture, and swearing an oath of loyalty to the Republic of Latvia. The applicants could have applied to acquire Latvian citizenship, but had never attempted to do so, and had provided no explanation for their decision. The respondent Government explained that if the applicants were to become Latvian citizens, their pensions would be recalculated to include the periods of employment and mandatory military service in the former USSR outside Latvia. However, they had freely decided not to avail themselves of this opportunity, and the fifth applicant had opted for the nationality of the Russian Federation. 173. The respondent Government recognised that in the Andrejeva case the Court had found a violation of Article 14 of the Convention taken together with Article 1 of Protocol No. 1. However, in the light of the foregoing, they considered that this finding had to be understood as based on the decisive fact that, during all the disputed periods, the applicant in that case had resided and worked in the territory of Latvia, forming legal and factual ties with Latvia only. In the present case, however, during the disputed years the applicants had worked or performed their mandatory military service in Russia, Ukraine, Belarus, Turkmenistan, Tajikistan, or Azerbaijan, creating no ties with Latvia in respect of these periods. Thus, while the applicant in the Andrejeva case had worked in the territory of Latvia, the applicants in the present case had not. They had not only been physically employed in the territory of another republic of the former USSR, but their residence had also been officially registered there. Moreover, the central issue in the Andrejeva case was the definition of the concept of “employment in Latvia”, which was not at stake here. In the present case, there was no dispute concerning the fact that the applicants had not lived and resided in Latvia during the years in question. Therefore, unlike in Andrejeva, they could not have had any legitimate expectations that they would receive a pension for the contested periods of employment. The respondent Government concluded that the applicants were in a substantially different situation from that of the applicant in the Andrejeva case. 174. The respondent Government also recognised that, according to the Court’s case-law, the relevant test for the application of Article 14 of the Convention was whether, but for the condition of entitlement about which they complained, the applicants would have had a right to receive the benefit in question. However, while in most cases this test would be sufficient, it could not be automatically applied in the present case without taking into account the specific historical background as set out above. To assert otherwise would mean completely disregarding the violations of international law that were committed during and following the occupation of Latvia. 175. Furthermore, contrary to the circumstances in Andrejeva, when the present application was lodged the bilateral social-security agreements with Belarus and Russia had already entered in force and the applicants’ retirement pensions had been recalculated accordingly. According to the respondent Government, the circumstances in the present case were rather similar to those of Carson and Others and Tarkoev and Others (both cited above). The international bilateral agreements on social security entered into by Latvia were based on a mutual understanding of fundamental principles and were the result of continued negotiations between the parties involved, in the course of which the States had sought to identify comparable groups to which the agreements should apply equally. To concur with the applicants’ position, challenging the role of the social-security agreements, would not only disregard the freedom of States to conclude bilateral agreements on social issues, but would also render all such agreements meaningless. The respondent Government asked whether two States ought ever to conclude bilateral agreements on social security if their nationals could enjoy all the available social benefits on the basis of Article 14 of the Convention without having to reciprocate. 176. To sum up, the respondent Government concluded that the impugned difference in treatment was directly based on the doctrine of State continuity and, by extension, had its roots in general public international law. It had therefore at least two legitimate aims: protection of Latvia’s economic system following the restoration of its independence, and respect for the principle of State continuity and constitutional identity. The impugned measure was also proportionate to these aims: all residents of Latvia received basic old-age pensions, irrespective of their citizenship; their pensions were periodically indexed, the applicants received additional social benefits for housing, health care and transportation, and their pensions had been recalculated following the entry into force of several bilateral agreements on social-security matters. There was indeed no other less restrictive measures to achieve the same legitimate aim. Accordingly, when adopting the domestic-law provision relevant in the present case, Latvia had acted within its margin of appreciation which, in the circumstances of the present case, was wide. The respondent Government therefore concluded that there had been no violation of Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1. Submissions of the third-party intervener 177. The Russian Government considered that the very existence of the status of “permanently resident non-citizen” fell foul of the basic standards of the Convention, the bearers of this status being systematically discriminated against in many areas, including that of social and economic rights. 178. The Russian Government further explained that the USSR had been a unified formation. Soviet citizens had been entitled to travel all over the territory of the USSR, often not by their own choice but as a result of compulsory job placement by the State authorities. Taking into account the State-guaranteed pension support that had existed in the USSR for many years, they had had a reasonable expectation that their labour records would be valid throughout the entire territory of their country, that is, the Soviet Union. In these circumstances, the difference in the amount of pension paid to citizens and to non-citizens was obviously unfair and discriminatory. 179. According to the Russian Government, the present case was substantially similar to Andrejeva, cited above, and ought to be determined in the same manner. As to the bilateral agreements on social matters concluded by Latvia with some former republics of the USSR, the Russian Government considered that these were not an adequate solution to the problem in issue, since none of these agreements allowed for a retrospective payment of pensions. Moreover, such agreements had been concluded by Latvia with only five out of the fourteen other former Soviet republics, and “permanently resident non-citizens” who had worked in other parts of the former Soviet Union could not have the amounts of their pensions recalculated accordingly. In this connection, the Russian Government specifically referred to the opinions of the ECRI and the Advisory Committee on the FCNM (see paragraphs 87-89 above). The Court’s assessment (a) General principles 180. The Court reiterates at the outset that Article 1 of Protocol No. 1 does not guarantee as such any right to a pension of a particular amount, any right to a pension in respect of activities carried out in a State other than the respondent State, and, indeed, any right to a pension at all. If, however, a State does decide to create a pension scheme, it must do so in a manner which is compatible with Article 14 of the Convention (see Stec and Others v. the United Kingdom [GC], nos. 65731/01 and 65900/01, § 53, ECHR 2006-VI, and Andrejeva, cited above, § 77). 181. In the enjoyment of the rights and freedoms guaranteed by the Convention, Article 14 affords protection against different treatment, without an objective and reasonable justification, of persons in relevantly similar situations (see, among many other authorities, Burden v. the United Kingdom [GC], no. 13378/05, § 60, ECHR 2008). However, only differences in treatment based on an identifiable characteristic, or “status”, are capable of amounting to discrimination within the meaning of Article 14 (see Carson and Others, cited above, § 61; Fábián, cited above, § 113, and Molla Sali, cited above, § 134). Furthermore, not every difference in treatment will amount to a violation of Article 14. A difference of treatment based on a prohibited ground is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised (see Andrejeva, cited above, § 81; Fabris v. France [GC], no. 16574/08, § 56, ECHR 2013; Fábián, cited above, § 113; and Molla Sali, cited above, § 135). 182. The Court also reiterates that the provisions of the Convention do not prevent Contracting States from introducing general policy schemes by way of legislative measures whereby a certain category or group of individuals is treated differently from others, provided that the interference with the rights of the statutory category or group as a whole can be justified under the Convention (see Andrejeva, cited above, § 83, and Ždanoka, cited above, § 112). Indeed, measures of economic and social policy often involve the introduction and application of criteria which are based on making distinctions between categories or groups of individuals (see J.D. and A. v. the United Kingdom, cited above, § 81). Moreover, Article 14 does not prohibit Contracting Parties from treating groups differently in order to correct “factual inequalities” between them (see Guberina v. Croatia, no. 23682/13, § 70, ECHR 2016, with further references). 183. The Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment. The scope of the margin of appreciation will vary according to the circumstances, the subject matter and the background (see Stummer, cited above, § 88). First and foremost, the nature of the status upon which differential treatment is based weighs heavily in determining the scope of that margin (see Bah v. the United Kingdom, no. 56328/07, § 47, ECHR 2011). The margin is very narrow if the distinction is based on an inherent or immutable personal characteristic such as race or sex (see, for example, D.H. and Others v. the Czech Republic [GC], no. 57325/00 § 196, ECHR 2007 ‑ IV, and J.D. and A. v. the United Kingdom, cited above, § 89). The Court has applied the same standard to the criterion of nationality, holding that very weighty reasons would have to be put forward before the Court could regard a difference in treatment based exclusively on the grounds of nationality as compatible with the Convention (see Gaygusuz, § 42; Andrejeva, § 87; and Ribać, § 53, all cited above). Conversely, the margin of appreciation will be considerably wider, and the justification required will not be as weighty, if the status in question is subject to an element of personal choice, such as immigration status (see Bah, cited above, ibid., and, mutatis mutandis, Makarčeva v. Lithuania (dec.), no. 31838/19, § 68, 28 September 2021). 184. Secondly, in the context of Article 1 of Protocol No. 1, the Court has held that in matters concerning general measures of economic or social strategy the States usually enjoy a wide margin of appreciation under the Convention (see Andrejeva, § 83; Fábián, § 115; Guberina, § 73; and British Gurkha Welfare Society and Others, § 62, all cited above). Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the Court will generally respect the legislature’s policy choice unless it is “manifestly without reasonable foundation” (see Andrejeva, § 83; Carson and Others, § 61; and Fábián, § 115, all cited above). 185. On the other hand, as the Court has stressed in the context of Article 14 in conjunction with Article 1 of Protocol No. 1, although the margin of appreciation in the context of general measures of economic or social policy is, in principle, wide, such measures must nevertheless be implemented in a manner that does not violate the prohibition of discrimination as set out in the Convention and complies with the requirement of proportionality (see Fábián, cited above, § 115, with further references). Among other areas, this general rule applies in pension matters (see Stec and Others, cited above, § 55, and Jurčić v. Croatia, no. 54711/15, § 64, 4 February 2021). Hence, in that context the Court has usually limited its acceptance to respect the legislature’s policy choice as not “manifestly without reasonable foundation” to circumstances where an alleged difference in treatment resulted from a transitional measure forming part of a scheme carried out in order to correct an inequality (see Stec and Others, §§ 61-66; British Gurkha Welfare Society and Others, § 81; and J.D. and A. v. the United Kingdom, § 88, all cited above). 186. Irrespective of the scope of the State’s margin of appreciation, the final decision as to the observance of the Convention’s requirements rests with the Court (see, among many other authorities, Konstantin Markin v. Russia [GC], no. 30078/06, § 126, ECHR 2012). 187. Lastly, as regards the burden of proof in relation to Article 14 of the Convention, the Court has held that once the applicant has shown a difference in treatment between persons in relevantly similar situations, it is for the Government to show that it was justified (see D.H. and Others v. the Czech Republic [GC], cited above, § 177; Kurić and Others v. Slovenia [GC], no. 26828/06, § 389, ECHR 2012 (extracts); and Guberina, cited above, § 74). 188. In the context of complaints of alleged discrimination in a welfare or pensions system, the Court has held that its main task is to assess the compatibility of the impugned features of the system with Article 14, not the individual facts or circumstances of the particular applicants or of others who are or might be affected by the legislation (see, for example, Carson and Others, § 62; Stec and Others, §§ 50-67; Burden, §§ 58-66; and Andrejeva, §§ 74-92, all cited above). Rather, the Court’s role is to determine the question of principle, namely whether the legislation as such unlawfully discriminates between persons who are in an analogous situation ( Carson and Others, § 62, and British Gurkha Welfare Society and Others, § 63, both cited above). (b) Application to the present case 189. The Court has already found that the facts of the case fall within the ambit of the substantive article – here, Article 1 of Protocol No. 1 – and that Article 14 of the Convention is therefore applicable to the applicants’ complaint (see paragraphs 121-122 above). It remains for the Court to determine, firstly, whether the impugned difference in treatment is based on at least one of the protected grounds set out in Article 14 of the Convention; secondly, whether the applicants are in a relevantly similar situation to that of the respective comparator group, i.e., Latvian citizens; thirdly, whether that difference pursued a legitimate aim; and, fourthly, whether it was proportionate to that aim, satisfying the requirement of a “reasonable and objective justification” for that difference in treatment (see, mutatis mutandis, Vrountou v. Cyprus, no. 33631/06, § 61, 13 October 2015). 190. As regards the applicants’ factual situation, their circumstances can be summarised as follows. All the applicants, with the exception of the third applicant who moved to Latvia when he was three, moved to Latvia and settled there in the course of their adult lives. In the absence of a relevant bilateral agreement, the impact on the second applicant of excluding the entire period of his employment in Azerbaijan, where he worked before settling in Latvia, has not been mitigated by any subsequent measure. The same is true for the period of his military service prior to his settlement in Latvia (see paragraphs 21-24 above). The fourth applicant, who retired in 2008, subsequently benefitted from the recalculation of her retirement pension following the conclusion of the bilateral agreement with Russia, whereby her periods of employment in Russia were taken into account with effect from June 2011. As a result, the remaining impact of the difference concerns the amount of the retirement pension she received during the period of about 3 years and 3 months between the start of her retirement in 2008 and the recalculation in 2011, and the amount relating to the employment period in her native Uzbekistan (about eight years), which remains excluded (see paragraphs 29-33 above). The fifth applicant, who started receiving her retirement pension in 2005, also benefitted from the recalculation in 2011 as far as her employment periods in Russia were concerned. As a result, the remaining impact of the difference concerns the amount of the retirement pension she received during the period of about seven years between the start of her retirement in 2005 and the recalculation in 2011, and the amount relating to the employment periods in Uzbekistan, Turkmenistan and Tajikistan (about eight years), which remain excluded (see paragraphs 34-37 above). Finally, the third applicant has spent practically all his life in Latvia, interrupting his residence there for the duration of his compulsory military service (about two years) outside Latvia (see paragraphs 25-28 above). (i) The alleged ground of discrimination 191. In the Andrejeva judgment, cited above, the Court held: “87. ... The Court notes ... that as a ‘permanently resident non-citizen’, the applicant is lawfully resident in Latvia on a permanent basis and that she receives a retirement pension in respect of her employment ‘in Latvia’, that is, for entities based in Latvian territory. The national authorities’ refusal to take into account her years of employment ‘outside Latvia’ is based exclusively on the consideration that she does not have Latvian citizenship. It was not disputed in the instant case that a Latvian citizen in the same position as the applicant, having worked in the same enterprise during the same period, would be granted the disputed portion of the retirement pension. Moreover, the parties agreed that if the applicant became a naturalised Latvian citizen she would automatically receive the pension in respect of her entire working life. Nationality is therefore the sole criterion for the distinction complained of ...” 192. In the present case, the Court sees no reason to depart from this conclusion. It appears that in the Latvian legal system the terms “nationality” and “citizenship” have the same meaning (for an example of interchangeable use of both terms, see Kurić and Others, cited above). It was clearly stated in Paragraph 1 of the transitional provisions of the State Pensions Act that the impugned difference in treatment is between Latvian citizens and other categories of people – that is, foreign nationals, stateless persons and “permanently resident non-citizens” of Latvia (see paragraph 66 above). Both the Constitutional Court in its judgment of 17 February 2011 and the Latvian Government in its observations before the Court have, in substance, recognised this, justifying the difference in question by the idea that the State has to assume particular responsibility for its own citizens. Moreover, as the respondent Government have pointed out, if the applicants had become Latvian citizens by way of naturalisation, their pensions would be recalculated to include the periods of employment and mandatory military service outside Latvia, and the amount of their pensions would become – albeit only ex nunc – identical to the amount that Latvian citizens with the same employment history would receive (see paragraph 172 above). 193. This being so, the Court cannot but reaffirm its earlier conclusion, reached in the Andrejeva case, namely that “nationality”, or rather the absence of Latvian citizenship on the applicants’ part, is the sole criterion for the distinction complained of (see Gaygusuz, cited above, §§ 40 and 47; Koua Poirrez v. France (no. 40892/98, §§ 41 and 47, ECHR 2003 ‑ X); and, mutatis mutandis, Rangelov v. Germany, no. 5123/07, § 99, 22 March 2012). Accordingly, very weighty reasons must be adduced to justify a difference in treatment in such cases. Nonetheless, the specific circumstances of the case are to be taken into account in determining the scope of the respondent State’s margin of appreciation. (ii) Whether the applicants are in a relevantly similar situation to that of Latvian citizens 194. According to the respondent Government, for the purposes of the present case, the applicants are not in a relevantly similar or comparable situation to that of Latvian citizens: the latter are in a special relationship of loyalty, allegeance and mutual obligations with the Latvian State, which, accordingly, has a special responsibility with regard to them, whereas the former group, transferred to Latvia as a result of demographic policies imposed by an occupying power in violation of international law, do not possess such special ties. From this perspective, if the Latvian legislature has decided to grant them pensions on the account of their employment during the Soviet regime in the Latvian territory, this was a reasonable bonus based on the fact that, to the extent that they had worked in Latvia, they had also contributed to that country’s economic development (see paragraphs 170-171 above). On the other hand, the applicants’ position can be understood as emphasising the identical factual nature of their position and that of a Latvian citizen with a similar employment history; in other words, having or not having Latvian nationality is the only objective difference between them (see paragraph 159 above). Like the applicants, the third-party intervener emphasised the equal status of all former Soviet citizens with regard to labour and pension benefits during the Soviet period (see paragraph 178 above). 195. The Court finds it sufficient at this stage of its examination to note that, with regard to the calculation of their retirement pensions within the Latvian system of occupational pensions, the applicants can be considered to be in a relevantly similar situation to persons with the same employment history but possessing Latvian citizenship. Accordingly, the Court will proceed with an assessment of whether the difference in treatment pursued one or more legitimate aims and whether it was proportional in the light of those aims. (iii) The legitimacy of the aims pursued 196. Drawing on the Constitutional Court’s judgment of 17 February 2011, the respondent Government stated that the difference in treatment established by Paragraph 1 of the transitional provisions of the State Pensions Act, instituting the impugned difference in treatment between Latvian citizens and other categories of persons, pursued not one but two aims: namely, protecting the economic system of the country, and safeguarding the constitutional identity of the State by implementing the doctrine of State continuity, the latter aim being more important than the former. 197. In the Andrejeva case, cited above, the Court held: “86. The Court accepts that the difference in treatment complained of pursues at least one legitimate aim that is broadly compatible with the general objectives of the Convention, namely the protection of the country’s economic system. It is undisputed that after the restoration of Latvia’s independence and the subsequent break-up of the USSR, the Latvian authorities were confronted with an abundance of problems linked to both the need to set up a viable social security system and the reduced capacity of the national budget. Furthermore, the fact that the provision in issue was not introduced until 1995, four years after Latvia’s independence had been fully restored, is not decisive in the instant case. It is not surprising that a newly established democratic legislature should need time for reflection in a period of political turmoil to enable it to consider what measures were required to ensure the country’s economic well-being. It cannot therefore be concluded that the fact that Latvia did not introduce the difference in treatment until 1995 showed that the State itself did not deem such a measure necessary to protect the national economy (see, mutatis mutandis, Ždanoka, cited above, § 131).” 198. The Court notes that the Constitutional Court gave its second judgment regarding pension rights in 2011, that is, after the delivery of the Court’s judgment in Andrejeva, which was taken into account and analysed by the Constitutional Court. According to the Constitutional Court’s reasoning, the impugned difference in treatment has at least two legitimate aims. The first, and most important according to the domestic authorities, was the need to protect the constitutional identity of the Republic of Latvia, which is based on the principle of State continuity as set out in the Declaration on the Restoration of Independence and subsequent constitutional provisions and doctrine. The Court observes that the essential point in this regard is not the doctrine of State continuity per se but rather the constitutional foundation of the Republic of Latvia following the restoration of its independence. The underlying arguments for Latvia’s doctrine of State continuity stem from the overall historical and demographic background which, as argued by the Government, accordingly also informed the setting up of the impugned system of retirement pensions following the restoration of Latvia’s independence. More specifically, the Court acknowledges that the aim in that context was to avoid retrospective approbation of the consequences of the immigration policy practised in the period of unlawful occupation and annexation of the country. In this specific historical context, such an aim, as pursued by the Latvian legislature when establishing the system of retirement pensions, was consistent with the efforts to rebuild the nation’s life following the restoration of independence, and the Court accepts this aim as legitimate. The second legitimate aim, as the Court established in the Andrejeva case, was the protection of the country’s economic system (ibid., § 86). 199. It therefore remains to be determined whether there was a reasonable relationship of proportionality between these aims and the means employed by the Latvian authorities. (iv) The proportionality of the difference in treatment (α) Preliminary considerations 200. The Court reiterates at the outset that it has in the past examined several cases concerning the obligations of the successor States to the former Yugoslavia as regards individual patrimonial rights and interests after the disintegration of that State (see, for example, Kurić and Others, cited above, and Kovačić and Others v. Slovenia ([GC], nos. 44574/98 and 2 others, 3 October 2008). However, it considers that the rules and principles of international law concerning State succession in pension matters are of little or no use for the purposes of the present case, as the official and consistent legal position of Latvia is based on the doctrine of State continuity, in the sense of a firm and coherent denial of any link of State succession between the former Soviet Union and the Latvian State. 201. The Court also reiterates that there is no right under Article 1 of Protocol No. 1 taken alone to receive a social security benefit or pension payment of any kind or amount, unless national law provides for such an entitlement (see, for example, Damjanac v. Croatia, no. 52943/10, § 87, 24 October 2013). Furthermore, given that the Latvian legislature has decided to grant occupational retirement pensions for the work performed during the historical period in question, the Court perceives no reasonable objection, from the point of view of Convention law, to a policy generally excluding periods of employment accrued while individuals were residing and working outside the Latvian territory. The core issue in the present case, however, is not whether the legitimate aims pursued by Latvia can justify not granting pensions at all, or granting them for the periods of work done in Latvia only, but whether they can justify the difference made in this regard between those holding Latvian citizenship and those holding the status of “permanently resident non-citizens”, and whether there is sufficient justification for this difference in treatment in the light of all the circumstances of the case. 202. The Court further notes that in the case of Andrejeva, cited above, it found a violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1. While mindful of the broad margin of appreciation enjoyed by the respondent State in the field of social security, the Court was not convinced that there had been a reasonable relationship of proportionality with respect to the legitimate aim of protecting the country’s economic system (ibid, § 89). In this regard, the Court reiterates that, while it is not formally bound to follow its previous judgments, it is in the interests of legal certainty, foreseeability and equality before the law that it should not depart, without good reason, from precedents laid down in previous cases (see Martinie v. France [GC], no. 58675/00, § 54, ECHR 2006-VI, and Magyar Helsinki Bizottság v. Hungary [GC], no. 18030/11, § 150, 8 November 2016). The Court must therefore determine whether there are any such reasons in the instant case, especially in the light of the expanded reasoning adduced by the Constitutional Court in its judgment of 17 February 2011. 203. The Court agrees with the Constitutional Court that upon the restoration of its independence Latvia was not obliged to assume the responsibilities of the USSR. Having undergone unlawful occupation and subsequent annexation, a State is not required to assume the public-law obligations accrued by the illegally established public authorities of the occupying or annexing power. Latvia was neither automatically bound by such obligations based on the Soviet period nor obliged to undertake obligations emanating from obligations of the occupying or annexing State. The Court observes, however, that once Latvia had put in place a system of occupational retirement pensions in 1996 which allowed for periods of employment accrued outside its territory to be counted towards the pension for Latvian nationals, it was bound, as from the date on which the Convention entered into force in respect of Latvia (that is, 27 June 1997), to comply with Article 14 taken in conjunction with Article 1 of Protocol No. 1. (β) Considerations relating to the scope of the margin of appreciation 204. Although an overview of the relevant general principles deriving from the Court’s case-law is presented above (see paragraphs 183-185), and given that the margin of appreciation to be accorded to the competent national authorities will vary in the light of the nature of the issues and the seriousness of the interests at stake, the Court finds it important at the outset to proceed with a closer analysis of the various relevant considerations to be taken into account when determining the appropriate scope of the margin of appreciation in the specific circumstances of the present case. In this regard, the Court observes the following. 205. The Court has repeatedly held, on the one hand, that in the field of social security and fiscal matters the margin of appreciation enjoyed by States must be wide (see paragraph 184 above). On the other hand, it has also repeatedly held that only “very weighty reasons” could justify a difference in treatment based exclusively on the grounds of nationality for the purposes of Article 14 of the Convention, thus indicating a narrow margin and strict scrutiny by the Court (see Gaygusuz, cited above, § 42; Andrejeva, cited above, § 87; and Ribać, cited above, § 53). In Stec (cited above, § 52) the Court set out the requirement of “very weighty reasons”, followed by the principle of “wide margin” in general measures of economic or social strategy, including a reference to the test of “manifestly without reasonable foundation” (see also, albeit in the context of “other status”, Stummer, cited above, §§ 101 and 109). 206. That being stated, the Court notes, firstly, that while the scope of the margin of appreciation clearly cannot be the same as regards the adoption of general measures of economic and social policy and as regards the introduction, in that context, of differences in treatment based solely on criteria such as nationality, the Court finds it reasonable to consider that in a field where a wide margin is, and must be, granted to the State in formulating general measures, even the assessment of what may constitute “very weighty reasons” for the purposes of the application of Article 14 may have to vary in degree depending on the context and circumstances. 207. In its case-law, the Court has previously acknowledged that there may be valid reasons for giving special treatment to those whose link with a country stems from birth within it or who otherwise have a special link with a country (see Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 88, Series A no. 94, and Ponomaryovi v. Bulgaria, no. 5335/05, §§ 54-56, ECHR 2011). Thus, in Abdulaziz, Cabales and Balkandali, the Court accepted a measure whereby the United Kingdom (where, for historical reasons, several categories of “nationality” exist, with differences in the legal position notably regarding rights of entry and residence) restricted family reunification rights between spouses in respect of certain “nationals”, depending on where the spouse already resident in the country had been born. 208. In the present case, the Court notes in particular that the special status of “permanently resident non-citizens” was created by the Latvian legislature following the restoration of Latvia’s independence with a view to addressing the consequences of a situation which had arisen from an occupation and subsequent annexation in breach of international law (see paragraphs 105 ‑ 106 above). 209. Another factor to be taken into account with regard to the scope of the margin of appreciation is the specific temporal scope and context of the impugned measure. In this regard, it is important to underline that the sole issue in the present case concerns a difference in treatment which was introduced when the Latvian system of employment pensions was set up and which concerns only periods of employment completed outside the territory of Latvia in the period prior to the restoration of Latvia’s independence. 210. The Court therefore notes that the present case must be distinguished from that of Luczak v. Poland (no. 77782/01, ECHR 2007 ‑ XIII). In that case, the applicant was refused admission to the farmers’ social-security scheme on account of his nationality. Thus, he was prevented from obtaining and contributing to social cover for future periods of occupational activity as a farmer in the respondent State. By contrast, the issue in the present case concerns past periods of employment, completed outside the respondent State before the introduction of the occupational pension scheme. In this regard, it can be noted that the Court has previously accepted a difference in treatment based on nationality for reasons relating to the date from which the applicants developed ties with the respondent State (see British Gurkha Welfare Society and Others, cited above, §§ 84-85). The Court notes that in that case the applicants were Nepalese Gurkha soldiers whose pension entitlements were significantly lower than those of British soldiers with whom the Gurkhas had served, in the same units, in various parts of the world. The contested periods of service in respect of which there was a difference in the calculation and amount of the pensions between the Nepalese and the British nationals had been accrued outside the United Kingdom, at a time before the Gurkhas had any links to Britain. Although the contested periods consisted of service in the British Army abroad, in the units to which they were integrated, the Court found no violation of Article 14 in conjunction with Article 1 of Protocol No. 1, accepting that the respondent State had acted within its margin of appreciation when adopting the impugned domestic provisions, under which the equalisation of pension rights between the Nepalese and the British nationals was foreseen only for the period following the removal of the Gurkhas’ home base to the United Kingdom. 211. As highlighted by the Constitutional Court and the respondent Government, the choices made by the Latvian legislature when setting up the employment-based retirement pension system and determining the criteria for entitlement therein were directly linked to the particular historical and demographic circumstances of Latvia’s situation at the relevant time, together with the constraints imposed by the severe economic difficulties prevailing at the time. Thus, the present case, which concerns only past periods of employment dating back to the years prior to the restoration of Latvia’s independence, is characterised by the specific background to the impugned transitory measure concerning this pension system. The Court points out that it has already acknowledged the need for a wide margin of appreciation in the context of such fundamental changes to a country’s system as the transition from a totalitarian regime to a democratic form of government and the reform of the State’s political, legal and economic structure, phenomena which inevitably involve the enactment of large-scale economic and social legislation (see Broniowski v. Poland [GC], no. 31443/96, §§ 149 and 162 ‑ 63, ECHR 2004-V ). Furthermore, the Court reiterates that it may have regard to facts prior to the ratification of the Convention by the respondent State where such circumstances could be considered to have created a situation extending beyond that date or may be relevant for the understanding of facts occurring after that date (see, mutatis mutandis, Broniowski v. Poland (dec.) [GC], no. 31443/96, § 74, ECHR 2002-X, and Hoti v. Croatia, no. 63311/14, § 85, 26 April 2018). 212. Moreover, the Court notes that while the nature of a social benefit, in particular the question whether or to what extent it depends on prior individual contributions payable by the beneficiaries, is not in itself decisive for the determination of whether it constitutes an entitlement falling within the scope or the ambit of Article 1 of Protocol No. 1 (see Andrejeva, cited above, § 76), the margin of appreciation may nonetheless depend on whether the impugned measure entails a loss of individual contributions paid by or on behalf of the individual affected by the measure (compare and contrast Pichkur v. Ukraine, no. 10441/06, § 51, 7 November 2013). Another factor which the Court has also taken into account is whether the lack of entitlement left the individual in question without social cover (see Stummer, cited above, § 108, and Janković, cited above). 213. In view of the above considerations, the Court considers that the assessment of whether the impugned difference in treatment is justified by “very weighty reasons” must be carried out against the background of the wide margin of appreciation to be applied in the circumstances of the present case. (γ) The assessment of proportionality 214. The Court observes, firstly, that the ground for the impugned difference in treatment which was introduced in the transitional provisions of the occupational pension system set up by the Latvian legislature is directly linked with the primary aim relied on by the Latvian Constitutional Court (see paragraph 196 above). The preferential treatment accorded to those possessing Latvian citizenship in respect of past periods of employment performed outside Latvia is therefore in line with that legitimate aim. 215. Secondly, the Court notes that the difference in treatment depended on the possession or, rather the lack, of Latvian citizenship, a legal status distinct from the national origin of the persons concerned and available to the applicants as “permanently resident non-citizens”. In this regard the Court notes, with reference to the Constitutional Court’s judgment, that the status of “permanently resident non-citizen” was devised as a temporary instrument so that the individuals concerned could obtain Latvian citizenship or choose another State with which to establish legal ties (see paragraph 55 above). In this respect, the Court can accept that in the context of difference in treatment based on nationality there may be certain situations where the element of personal choice linked with the legal status in question may be of significance with a view to determining the margin of appreciation left to the domestic authorities, especially in so far as privileges, entitlements and financial benefits are at stake (see, mutatis mutandis, Bah, cited above, § 47). It does not appear from the case file that any of the applicants has ever tried to obtain citizenship of Latvia – the country in which they have already been permanently settled for many years – or that they did so but were met with obstacles. It is clear that naturalisation depends on the fulfilment of certain conditions and may require certain efforts. This does not, however, alter the fact that the question of legal status, namely the choice between remaining a “permanently resident non-citizen” and acceding to citizenship, is largely a matter of personal aspiration rather than an immutable situation, especially in the light of the considerable time-frame available to the applicants to exercise that option (see paragraph 190 above). 216. Thirdly, the difference in treatment only concerned past periods of employment, completed prior to the introduction of the pension scheme in question. The choices made by the Latvian legislature when determining the criteria for entitlements in the employment-based retirement pension system were directly linked to the particular historical, economic and demographic circumstances, that is, the five decades of unlawful occupation and annexation, and the subsequent, particularly difficult situation prevailing in the wake of the restoration of Latvia’s independence. In contrast to the case of Andrejeva, the difference in treatment was limited to periods of employment completed by the applicants outside Latvia, before they settled in Latvia or had any other links with that country (see British Gurkha Welfare Society and Others, cited above, and paragraph 210 above). Only one of the applicants (the third) had been resident in Latvia prior to the period of military service at issue. 217. Fourthly, the impugned difference in treatment neither concerns the applicants’ entitlement to basic pension benefits, accorded under Latvian law irrespective of the individual’s employment history, nor does it entail any deprivation, or other loss, of benefits based on financial contributions made by the applicants in respect of the employment periods in question. 218. Furthermore, with particular regard to the second legitimate aim pursued (see paragraph 196 above), the Court notes that the Latvian system of employment pensions at issue was based on social insurance contributions and functioned according to the principle of solidarity, in the sense that the total amount of contributions collected was used to fund the current disbursement of pensions, payable to all the beneficiaries at a given time. Thus, determining the scope of eligible periods of employment inevitably had an impact on the level of the benefits and the contributions required to fund them. The Court considers that these types of trade-offs in social welfare systems generally call for a wide margin of appreciation. Given the particular difficulties and the complex policy choices facing the Latvian authorities after the restoration of independence, the Court cannot but recognise, in its overall assessment, a substantial degree of deference to be afforded to the Government (see, mutatis mutandis, Vistiņš and Perepjolkins v. Latvia [GC], no. 71243/01, § 113, 25 October 2012). 219. In sum, the Court accepts, in the light of all the above circumstances and the respective margin of appreciation, that the impugned difference in treatment was consistent with the legitimate aims pursued and that the grounds relied upon by the Latvian authorities to justify it can be deemed to amount to very weighty reasons. (v) Conclusion 220. In view of all the above considerations, the Court considers that in the specific circumstances of the present case the respondent State has not overstepped its margin of appreciation with regard to the applicants. The Court thus finds that it must reach a different conclusion from that of the Andrejeva case (see, a contrario, Martinie, cited above § 54). 221. There has accordingly been no violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1. | The Court held that there had been no violation of Article 14 (prohibition of discrimination) of the Convention taken in conjunction with Article 1 of Protocol No. 1 (protection of property) to the Convention, finding that the domestic authorities had acted within their discretion concerning the assessment of the applicants’ pension entitlements. In particular, although the difference between payments had been solely down to nationality, the Court noted that taking Latvian nationality had been open to the applicants, especially given the long time-frame. It noted the broad discretion that Governments had in setting social-security payments, and held that rebuilding the Latvian nation’s life following the restoration of independence was sufficient to justify the difference in treatment. |
1,011 | Military presence | II. RELEVANT INTERNATIONAL LAW MATERIALS A. Relevant provisions of international humanitarian law 42. Articles 42 and 43 of the Regulations concerning the Laws and Customs of War on Land (The Hague, 18 October 1907) (“the Hague Regulations”) provide as follows: Article 42 “Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.” Article 43 “The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.” 43. The Convention (IV) relative to the Protection of Civilian Persons in Time of War (Geneva, 12 August 1949) (“the Fourth Geneva Convention”) defines “protected persons” as follows: Article 4 “Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals. Nationals of a State which is not bound by the Convention are not protected by it. Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co-belligerent State, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are. ...” It contains the following provisions in relation to security measures and internment: Article 27 “Protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity. Women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault. Without prejudice to the provisions relating to their state of health, age and sex, all protected persons shall be treated with the same consideration by the Party to the conflict in whose power they are, without any adverse distinction based, in particular, on race, religion or political opinion. However, the Parties to the conflict may take such measures of control and security in regard to protected persons as may be necessary as a result of the war.” Article 41 “Should the Power in whose hands protected persons may be consider the measures of control mentioned in the present Convention to be inadequate, it may not have recourse to any other measure of control more severe than that of assigned residence or internment, in accordance with the provisions of Articles 42 and 43. In applying the provisions of Article 39, second paragraph, to the cases of persons required to leave their usual places of residence by virtue of a decision placing them in assigned residence elsewhere, the Detaining Power shall be guided as closely as possible by the standards of welfare set forth in Part III, section IV of this Convention.” Article 42 “The internment or placing in assigned residence of protected persons may be ordered only if the security of the Detaining Power makes it absolutely necessary. If any person, acting through the representatives of the Protecting Power, voluntarily demands internment and if his situation renders this step necessary, he shall be interned by the Power in whose hands he may be.” Article 43 “Any protected person who has been interned or placed in assigned residence shall be entitled to have such action reconsidered as soon as possible by an appropriate court or administrative board designated by the Detaining Power for that purpose. If the internment or placing in assigned residence is maintained, the court or administrative board shall periodically, and at least twice yearly, give consideration to his or her case, with a view to the favourable amendment of the initial decision, if circumstances permit. Unless the protected persons concerned object, the Detaining Power shall, as rapidly as possible, give the Protecting Power the names of any protected persons who have been interned or subjected to assigned residence, or who have been released from internment or assigned residence. The decisions of the courts or boards mentioned in the first paragraph of the present Article shall also, subject to the same conditions, be notified as rapidly as possible to the Protecting Power.” Article 64 “The penal laws of the occupied territory shall remain in force, with the exception that they may be repealed or suspended by the Occupying Power in cases where they constitute a threat to its security or an obstacle to the application of the present Convention. Subject to the latter consideration and to the necessity for ensuring the effective administration of justice, the tribunals of the occupied territory shall continue to function in respect of all offences covered by the said laws. The Occupying Power may, however, subject the population of the occupied territory to provisions which are essential to enable the Occupying Power to fulfil its obligations under the present Convention, to maintain the orderly government of the territory, and to ensure the security of the Occupying Power, of the members and property of the occupying forces or administration, and likewise of the establishments and lines of communication used by them.” Article 78 “If the Occupying Power considers it necessary, for imperative reasons of security, to take safety measures concerning protected persons, it may, at the most, subject them to assigned residence or to internment. Decisions regarding such assigned residence or internment shall be made according to a regular procedure to be prescribed by the Occupying Power in accordance with the provisions of the present Convention. This procedure shall include the right of appeal for the parties concerned. Appeals shall be decided with the least possible delay. In the event of the decision being upheld, it shall be subject to periodical review, if possible every six months, by a competent body set up by the said Power. Protected persons made subject to assigned residence and thus required to leave their homes shall enjoy the full benefit of Article 39 of the present Convention.” The Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), of 8 June 1977, provides in Article 75 § 3: “Any person arrested, detained or interned for actions related to the armed conflict shall be informed promptly, in a language he understands, of the reasons why these measures have been taken. Except in cases of arrest or detention for penal offences, such persons shall be released with the minimum delay possible and in any event as soon as the circumstances justifying the arrest, detention or internment have ceased to exist.” B. Relevant provisions of the Charter of the United Nations of 1945 44. The Preamble to the Charter of the United Nations states, inter alia : “We, the peoples of the United Nations, Determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, ...” Article 1 sets out the purposes of the United Nations, as follows: “1. To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace; ... 3. To achieve international cooperation in ... promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; ...” Article 24 provides, inter alia : “1. In order to ensure prompt and effective action by the United Nations, its members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf. 2. In discharging these duties the Security Council shall act in accordance with the Purposes and Principles of the United Nations. The specific powers granted to the Security Council for the discharge of these duties are laid down in Chapters VI, VII, VIII and XII.” Article 25 of the Charter provides: “The members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.” 45. Chapter VII of the Charter is entitled “Action with respect to threats to the peace, breaches of the peace and acts of aggression”. Article 39 provides: “The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.” 46. Articles 41 and 42 read as follows: Article 41 “The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.” Article 42 “Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of members of the United Nations.” Articles 43 to 45 provide for the conclusion of agreements between member States and the Security Council for the former to contribute to the latter the land and air forces necessary for the purpose of maintaining international peace and security. No such agreements have been concluded. Chapter VII continues: Article 48 “1. The action required to carry out the decisions of the Security Council for the maintenance of international peace and security shall be taken by all the members of the United Nations or by some of them, as the Security Council may determine. 2. Such decisions shall be carried out by the members of the United Nations directly and through their action in the appropriate international agencies of which they are members.” Article 49 “The members of the United Nations shall join in affording mutual assistance in carrying out the measures decided upon by the Security Council.” Article 103 of the Charter reads as follows: “In the event of a conflict between the obligations of the members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.” C. Relevant provisions of the Vienna Convention on the Law of Treaties of 1969 47. Article 30 is entitled “Application of successive treaties relating to the same subject matter” and its first paragraph reads as follows: “1. Subject to Article 103 of the Charter of the United Nations, the rights and obligations of States Parties to successive treaties relating to the same subject matter shall be determined in accordance with the following paragraphs. ...” D. Relevant case-law of the International Court of Justice 48. The International Court of Justice has held Article 103 of the Charter of the United Nations to mean that the Charter obligations of United Nations member States prevail over conflicting obligations from another international treaty, regardless of whether the latter treaty was concluded before or after the Charter of the United Nations or was only a regional arrangement (see Nicaragua v. United States of America, ICJ Reports 1984, p. 392, at § 107). The International Court of Justice has also held that Article 25 of the Charter means that United Nations member States’ obligations under a Security Council resolution prevail over obligations arising under any other international agreement (see Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America and Libyan Arab Jamahiriya v. United Kingdom, ICJ Reports 1992, vol. 1, p. 16, at § 42, and p. 113 at § 39 (hereinafter “ Lockerbie ”). 49. In its Advisory Opinion Legal Consequences for States of the Continued Presence of South Africa in Namibia, notwithstanding Security Council Resolution 276 (1970), the International Court of Justice observed, in connection with the interpretation of United Nations Security Council resolutions: “114. It has also been contended that the relevant Security Council resolutions are couched in exhortatory rather than mandatory language and that, therefore, they do not purport to impose any legal duty on any State nor to affect legally any right of any State. The language of a resolution of the Security Council should be carefully analysed before a conclusion can be made as to its binding effect. In view of the nature of the powers under Article 25, the question whether they have been in fact exercised is to be determined in each case, having regard to the terms of the resolution to be interpreted, the discussions leading to it, the Charter provisions invoked and, in general, all circumstances that might assist in determining the legal consequences of the resolution of the Security Council.” 50. In its judgment Armed Activities on the Territory of the Congo (Democratic Republic of the Congo (DRC) v. Uganda) of 19 December 2005, the International Court of Justice considered whether, during the relevant period, Uganda was an “Occupying Power” of any part of the territory of the Democratic Republic of the Congo, within the meaning of customary international law, as reflected in Article 42 of the Hague Regulations (§§ 172-73 of the judgment). The International Court of Justice found that Ugandan forces were stationed in the province of Ituri and exercised authority there, in the sense that they had substituted their own authority for that of the Congolese government (§§ 174-76). The International Court of Justice continued: “178. The Court thus concludes that Uganda was the Occupying Power in Ituri at the relevant time. As such it was under an obligation, according to Article 43 of the Hague Regulations of 1907, to take all the measures in its power to restore, and ensure, as far as possible, public order and safety in the occupied area, while respecting, unless absolutely prevented, the laws in force in the DRC. This obligation comprised the duty to secure respect for the applicable rules of international human rights law and international humanitarian law, to protect the inhabitants of the occupied territory against acts of violence, and not to tolerate such violence by any third party. 179. The Court, having concluded that Uganda was an Occupying Power in Ituri at the relevant time, finds that Uganda’s responsibility is engaged both for any acts of its military that violated its international obligations and for any lack of vigilance in preventing violations of human rights and international humanitarian law by other actors present in the occupied territory, including rebel groups acting on their own account. 180. The Court notes that Uganda at all times has responsibility for all actions and omissions of its own military forces in the territory of the DRC in breach of its obligations under the rules of international human rights law and international humanitarian law which are relevant and applicable in the specific situation.” E. Relevant case-law of the European Court of Justice 51. The case of Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council of the European Union and Commission of the European Communities (Joined Cases C-402/05 P and C-415/05 P) (hereinafter “ Kadi ”) concerned a complaint about the freezing of assets under European Community regulations adopted to reflect United Nations Security Council Resolutions 1267 (1999), 1333 (2000) and 1390 (2002), which dictated, inter alia, that all States were to take measures to freeze the funds and other financial assets of individuals and entities associated with Osama bin Laden, the al-Qaeda network and the Taliban. Those individuals, including the applicants, were identified by the Sanctions Committee of the United Nations Security Council. The applicants argued that the regulations were ultra vires because the assets freezing procedure violated their fundamental rights to a fair trial and to respect for their property, as protected by the Treaty establishing the European Community. 52. The Court of First Instance rejected the applicant’s claims and upheld the regulations, essentially finding that the effect of Article 103 of the Charter of the United Nations was to give United Nations Security Council resolutions precedence over other international obligations (save jus cogens ), which included the Treaty establishing the European Community. Thus, the Court of First Instance concluded that it had no authority to review, even indirectly, United Nations Security Council resolutions in order to assess their conformity with fundamental rights. 53. Mr Kadi appealed to the European Court of Justice where his case was considered together with another appeal by the Grand Chamber, which gave judgment on 3 September 2008. The European Court of Justice held that European Community law formed a distinct, internal legal order and that it was competent to review the lawfulness of a Community regulation within that internal legal order, despite the fact that the regulation had been enacted in response to a United Nations Security Council resolution. It followed that, while it was not for the “Community judicature” to review the lawfulness of United Nations Security Council resolutions, they could review the act of a member State or Community organ that gave effect to that resolution; doing so “would not entail any challenge to the primacy of the resolution in international law”. The European Court of Justice recalled that the European Community was based on the rule of law, that fundamental rights formed an integral part of the general principles of law and that respect for human rights was a condition of the lawfulness of Community acts. The obligations imposed by an international agreement could not have the effect of prejudicing the “constitutional principles of the European Community Treaty”, which included the principle that all Community acts had to respect fundamental rights. The regulations in question, which provided for no right to challenge a freezing order, failed to respect fundamental rights and should be annulled. F. Relevant case-law of the United States Supreme Court 54. In Munaf v. Geren (2008) 128 SCt 2207, the United States Supreme Court examined claims for habeas corpus relief from two American citizens who voluntarily travelled to Iraq and allegedly committed crimes there. They were each arrested in October 2004 by American forces operating as part of the Multinational Force, given hearings before Multinational Force Tribunals composed of American officers, who concluded that they posed a threat to Iraq’s security, and placed in the custody of the United States military operating as part of the Multinational Force. It was subsequently decided to transfer the detainees to the custody of the Iraqi authorities to stand trial on criminal charges before the Iraqi courts, and the detainees sought orders from the Federal Courts prohibiting this, on the ground that they risked torture if transferred to Iraqi custody. It was argued on behalf of the US government that the Federal Courts lacked jurisdiction over the detainees’ petitions because the American forces holding them operated as part of a Multinational Force. The Supreme Court observed that: “The United States acknowledges that Omar and Munaf are American citizens held overseas in the immediate ‘physical custody’ of American soldiers who answer only to an American chain of command. The MNF-I itself operates subject to a unified American command. ‘[A]s a practical matter’, the Government concedes, it is ‘the President and the Pentagon, the Secretary of Defence, and the American commanders that control what ... American soldiers do’, ... including the soldiers holding Munaf and Omar. In light of these admissions, it is unsurprising that the United States has never argued that it lacks the authority to release Munaf or Omar, or that it requires the consent of other countries to do so.” The Supreme Court concluded that it considered “these concessions the end of the jurisdictional inquiry”. It held that American citizens held overseas by American soldiers subject to a US chain of command were not precluded from filing habeas corpus petitions in the Federal Courts. However, it further decided that Federal District Courts could not exercise their habeas corpus jurisdiction to enjoin the United States of America from transferring individuals alleged to have committed crimes and detained within the territory of a foreign sovereign State to that sovereign State for criminal prosecution. The petitioners’ allegations that their transfer to Iraqi custody was likely to result in torture were a matter of serious concern but those allegations generally had to be addressed by the political branches, not the judiciary. G. Relevant materials of the International Law Commission 55. The International Law Commission was established by the United Nations General Assembly in 1948 for the “promotion of the progressive development of international law and its codification”. It consists of thirty-four experts on international law, elected to the Commission by the United Nations General Assembly from a list of candidates nominated by governments of member States. 56. In Article 5 of its Draft Articles on the Responsibility of International Organisations (adopted in May 2004), the International Law Commission stated as follows: “ Conduct of organs or agents placed at the disposal of an international organisation by a State or another international organisation The conduct of an organ of a State or an organ or agent of an international organisation that is placed at the disposal of another international organisation shall be considered under international law an act of the latter organisation if the organisation exercises effective control over that conduct.” The International Law Commission further stated, in paragraphs 1 and 6 to 7 of its commentary on this Article: “1. When an organ of a State is placed at the disposal of an international organisation, the organ may be fully seconded to that organisation. In this case the organ’s conduct would clearly be attributable only to the receiving organisation ... Article 5 deals with the different situation in which the lent organ or agent still acts to a certain extent as organ of the lending State or as organ or agent of the lending organisation. This occurs for instance in the case of military contingents that a State placed at the disposal of the United Nations for a peacekeeping operation, since the State retains disciplinary powers and criminal jurisdiction over the members of the national contingent. In this situation the problem arises whether a specific conduct of the lent organ or agent has to be attributed to the receiving organisation or to the lending State or organisation. ... 6. Practice relating to peacekeeping forces is particularly significant in the present context because of the control that the contributing State retains over disciplinary matters and criminal affairs. This may have consequences with regard to attribution of conduct. ... Attribution of conduct to the contributing State is clearly linked with the retention of some powers by that State over its national contingent and thus on the control that the State possesses in the relevant respect. 7. As has been held by several scholars, when an organ or agent is placed at the disposal of an international organisation, the decisive question in relation to attribution of a given conduct appears to be who has effective control over the conduct in question. ...” 57. The report of the Study Group of the International Law Commission entitled “Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law” (April 2006) stated, in respect of Article 103 of the Charter of the United Nations (footnotes omitted): “ (a) What are the prevailing obligations? 331. Article 103 does not say that the Charter prevails, but refers to obligations under the Charter. Apart from the rights and obligations in the Charter itself, this also covers duties based on binding decisions by United Nations bodies. The most important case is that of Article 25 that obliges member States to accept and carry out resolutions of the Security Council that have been adopted under Chapter VII of the Charter. Even if the primacy of Security Council decisions under Article 103 is not expressly spelled out in the Charter, it has been widely accepted in practice as well as in doctrine. The question has sometimes been raised whether also [Security] Council resolutions adopted ultra vires prevail by virtue of Article 103. Since obligations for member States of the United Nations can only derive out of such resolutions that are taken within the limits of its powers, decisions ultra vires do not give rise to any obligations to begin with. Hence no conflict exists. The issue is similar with regard to non-binding resolutions adopted by United Nations organs, including the Security Council. These are not covered by Article 103. ... (b) What does it mean for an obligation to prevail over another? 333. What happens to the obligation over which Article 103 establishes precedence? Most commentators agree that the question here is not of validity but of priority. The lower-ranking rule is merely set aside to the extent that it conflicts with the obligation under Article 103. This was how Waldock saw the matter during the ILC [International Law Commission] debates on Article 30 [of the Vienna Convention on the Law of Treaties]: ‘[T]he very language of Article 103 makes it clear that it presumes the priority of the Charter, not the invalidity of treaties conflicting with it.’ 334. A small number of authors have received a more extensive view of the effects of Article 103 – namely the invalidity of the conflicting treaty or obligation – on the basis of the view of the Charter as a ‘constitution’. A clear-cut answer to this question (priority or invalidity?) cannot be received from the text of Article 103. Yet the word ‘prevail’ does not grammatically imply that the lower-ranking provision would become automatically null and void, or even suspended. The State is merely prohibited from fulfilling an obligation arising under that other norm. Article 103 says literally that in case of a conflict, the State in question should fulfil its obligation under the Charter and perform its duties under other agreements in as far as compatible with obligations under the Charter. This also accords with the drafting materials of the Charter, which state that: ‘it would be enough that the conflict should arise from the carrying out of an obligation under the Charter. It is immaterial whether the conflict arises because of intrinsic inconsistency between the two categories of obligations or as the result of the application of the provisions of the Charter under given circumstances.’” H. The Copenhagen Process on the Handling of Detainees in International Military Operations 58. In 2007 the Danish government initiated the Copenhagen Process on the Handling of Detainees in International Military Operations. The Process is aimed at developing a multilateral approach to the treatment of detainees in military situations and it has attracted the involvement of at least twenty-eight States and a number of international organisations, including the United Nations, the European Union, NATO, the African Union and the International Committee of the Red Cross. The “non-paper”, prepared for the first Copenhagen Conference on 11 to 12 October 2007, stated by way of introduction: “The past decade has seen a significant change in the character of international military operations. They have developed from traditional peacekeeping operations under Chapter VI/VI ½ of the UN Charter, through peacemaking operations under Chapter VII, to a new type of operation in which military forces are acting in support of governments that need assistance to stabilise their countries or in support of the international administration of territory. In such operations, military forces may have to perform tasks which would normally be performed by national authorities, including detaining people in the context of both military operations and law enforcement. At the same time, the countries which are to be assisted frequently have difficulties fulfilling their human rights and humanitarian law obligations due to the internal problems. Normal modus operandi, including the transfer of detainees to local authorities, may therefore often not be possible as it may contradict the legal and political commitment of the troop-contributing countries. The handling of detainees thereby becomes a challenge in itself. If a sustainable solution to these challenges is not reached, it may have an impact on the ability of the military forces of other States to engage in certain types of operations. States therefore cannot disregard these challenges when contributing to ongoing or future operations of this nature. The main challenge is a basic one: how do troop-contributing States ensure that they act in accordance with their international obligations when handling detainees, including when transferring detainees to local authorities or to other troop-contributing countries? Solving this challenge is not simple, as it involves addressing a number of complicated and contested legal issues as well as complicated practical and political aspects. ...” The “non-paper” continued, under the heading “The legal basis [of detention]”: “The legal basis for military forces to detain persons typically derives from the mandate of a given operation. The types of operations relevant for this non-paper are typically based on a Chapter VII resolution of the United Nations Security Council [UNSC]. A UNSC resolution may contain or refer to text on detention, and supplementary regulation may be found, for example, in standard operating procedures, rules of engagement and status-of-forces agreements, although the latter would also represent an agreement with the territorial State. The wording in these instruments on detention, however, is not always clear, if the issue is addressed at all. In these circumstances, the mandate to detain is often based on the traditional wording of UNSC resolutions giving a military force the mandate to ‘take all necessary measures’ in order to fulfil the given task. When a UN resolution is unclear or contains no text on the mandate to detain, the right to self-defence may contain an inherent yet limited right to detain. However, this may leave the question open as to the scope of the mandate, e.g., what type of detention is possible in self-defence and whether it is possible only to detain persons for reasons of security or also to detain e.g. common criminals. There is therefore a need for the Security Council to address this issue and clearly establish the legal basis for the right of the force to detain in a given operation. A clear mandate on detention will improve the possibilities for soldiers on the ground to take the right decisions on detention matters and to avoid different interpretations on the understanding of an ambiguous SC resolution. This need is further underlined by the fact that the right to detain might subsequently be challenged in court, and that officials/soldiers of troop-contributing States may be subject to prosecution for unlawful confinement under the grave breaches regime of Geneva Convention (IV).” THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 59. The applicant complained that he was held in internment by United Kingdom armed forces in Iraq between 10 October 2004 and 30 December 2007, in breach of Article 5 § 1 of the Convention. He did not pursue before the Court his complaint under Article 5 § 4 of the Convention, concerning the lack of judicial review of the detention, since proceedings on this issue were still pending before the domestic courts at the time the application was lodged (see paragraphs 23-24 above). 60. The Government contended that the internment was attributable to the United Nations and not to the United Kingdom, and that the applicant was not, therefore, within United Kingdom jurisdiction under Article 1 of the Convention. Further, and in the alternative, they submitted that the internment was carried out pursuant to United Nations Security Council Resolution 1546, which created an obligation on the United Kingdom to detain the applicant which, pursuant to Article 103 of the Charter of the United Nations, overrode obligations under the Convention. A. Admissibility 61. The Court considers that the question whether the applicant’s detention fell within the jurisdiction of the respondent State is closely linked to the merits of his complaint. It therefore joins this preliminary question to the merits. 62. It notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. Jurisdiction 63. The applicant submitted that he fell within the United Kingdom’s jurisdiction under Article 1 of the Convention, which reads as follows: “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention.” The Government disagreed. (a) The parties’ submissions (i) The Government 64. The Government denied that the detention of the applicant fell within the United Kingdom’s jurisdiction. They submitted that he was detained at a time when United Kingdom forces were operating as part of a Multinational Force authorised by the United Nations Security Council and subject to the ultimate authority of the United Nations. In detaining the applicant, the British troops were not exercising the sovereign authority of the United Kingdom but the international authority of the Multinational Force, acting pursuant to the binding decision of the United Nations Security Council. The Government emphasised that the above approach to the questions of attribution and jurisdiction followed from the Court’s reasoning and decision in Behrami v. France and Saramati v. France, Germany and Norway (dec.) [GC], nos. 71412/01 and 78166/01, 2 May 2007 (hereinafter “ Behrami and Saramati ”) They submitted that Lord Bingham, with whom Baroness Hale and Lord Carswell agreed (see paragraph 18 above), failed to give proper effect to that decision of the Grand Chamber. Lord Rodger, however, had found the position as regards Iraq to be indistinguishable from that in Kosovo, as considered by the Court in Behrami and Saramati. The Government agreed with and relied upon his detailed reasoning and conclusion (see paragraph 19 above). 65. The Government emphasised that in Behrami and Saramati the Court had held that the effect of United Nations Security Council Resolution 1244 (1999) had been to delegate to willing organisations and United Nations member States the power to establish an international security presence in Kosovo. The United Nations Security Council had been acting under Chapter VII of the Charter of the United Nations when it authorised the NATO-led Kosovo Force (KFOR). Similarly, in its resolutions authorising the Multinational Force in Iraq (Resolutions 1511 and 1546; see paragraphs 31 and 35 above), the Security Council referred expressly to Chapter VII, made the necessary identification of a threat to international peace and security and, in response to this threat, authorised a Multinational Force under unified command to take “all necessary measures to contribute to the maintenance of security and stability of Iraq”. 66. The Government continued by pointing out that in Behrami and Saramati (cited above), the Court had identified that the “key question” to determine whether the delegation in question was sufficiently limited to meet the requirements of the Charter, and for the acts of the delegate entity to be attributable to the United Nations, was whether “the [Security Council] retained ultimate authority and control so that operational command only was delegated” (see Behrami and Saramati, cited above, §§ 132 and 133). The Court had further identified (ibid., § 134) five factors which established that the United Nations had retained “ultimate authority and control” over KFOR. In the Government’s submission, the five factors applied equally in respect of the United Nations Security Council’s authorisation of the Multinational Force to use force in Iraq. Firstly, Chapter VII of the Charter allowed the United Nations Security Council to delegate its powers under Chapter VII to an international security presence made up of forces from willing member States. Secondly, the relevant power, conferred by Chapter VII, was a delegable power. Thirdly, the delegation to the Multinational Force was not presumed or implicit, but prior and explicit in Resolutions 1511, 1546 and subsequent resolutions. The applicant was detained several months after the adoption of Resolution 1546. Fourthly, Resolution 1546 fixed the mandate with adequate precision, setting out the tasks to be undertaken by the Multinational Force. Resolution 1546 in fact defined the tasks to be carried out by the authorised international force with greater precision than Resolution 1244. Fifthly, the Multinational Force, through the United States of America, was required to report to the Security Council on a quarterly basis. Further, the mandate for the Multinational Force was subject to review and control by the Security Council by reason of the requirement that the mandate be reviewed by the Security Council after no less than twelve months and that it expire after certain specified events. The Security Council therefore retained greater control over the Multinational Force than it did over KFOR under Resolution 1244. 67. A further question which the Court had considered in Behrami and Saramati was whether the level of control exercised by the troop-contributing nations in detaining Mr Saramati was such as to detach the troops from the international mandate of the Security Council. In the present case, the Government submitted, the applicant’s detention was effected and authorised throughout by Multinational Force personnel acting as such, including United Kingdom forces. The “structural” involvement of the United Kingdom in retaining some authority over its troops, as did all troop-contributing nations, was compatible with the effectiveness of the unified command and control exercised over the Multinational Force. There was no evidence that the United Kingdom interfered with respect to the applicant’s detention in such a way that the acts of the United Kingdom troops in detaining him were detached from the Security Council mandate. In the Government’s view, no relevant distinction could be drawn between the operational chain of command in the Multinational Force and that which operated in the case of KFOR (see Behrami and Saramati, cited above, § 135). In the Government’s submission, the continued detention of the applicant after June 2006 was required to be authorised by the co-chairs of the Joint Detention Committee, namely the Prime Minister of Iraq and the General Officer Commanding Multinational Force (a United States General), and was in fact so authorised. That authorisation was in accordance with applicable Iraqi law and the United Nations mandate conferred by Resolution 1546, which recorded that the Multinational Force was present in Iraq at the request of the government of Iraq and which expressly referred to arrangements put in place for a “security partnership” between the Iraqi government and the Multinational Force. United Kingdom troops played no part in the authorisation. 68. The Government contended that to apply the Convention to the acts of United Kingdom troops, and those of other Contracting States who contributed troops to the Multinational Force, in the context of the Multinational Force’s multinational and unified command structure, and in the context of its close coordination and cooperation with Iraqi forces, would have introduced serious operational difficulties. It would have impaired the effectiveness of the Multinational Force in its operations, which ranged from combat operations conducted together with Iraqi forces to the arrest of suspected criminals and terrorists. It would also have given rise to intractable issues as to how the Convention would apply to operations conducted jointly by forces from Contracting and non-Contracting States including, for example, questions as to what degree of involvement of personnel in joint actions would be required to engage the responsibility of the Contracting State. Moreover, in addition to United Nations peacekeeping forces (which were subsidiary organs of the United Nations) there were currently seven international military forces which had been authorised by the United Nations Security Council to contribute to the maintenance of security in foreign States, including the International Security Assistance Force in Afghanistan. To conclude that the acts of United Kingdom troops deployed as part of the Multinational Force in Iraq were attributable to the United Kingdom would introduce real uncertainty about the operation of the Convention to United Nations mandated operations and would risk in future deterring Contracting Parties from contributing troops to forces authorised by the United Nations Security Council, to the detriment of its mission to secure international peace and security. (ii) The applicant 69. The applicant pointed out that the Government had made an express concession during the domestic proceedings that the applicant was within the Article 1 jurisdiction of the United Kingdom since he was detained in a British-run military prison. However, following the Grand Chamber’s decision in Behrami and Saramati (cited above), the Government had argued for the first time before the House of Lords that the United Kingdom did not have jurisdiction because the detention was attributable to the United Nations and not the United Kingdom. The applicant underlined that, until the proceedings before the House of Lords, the Government had never argued in any case that the detention of individuals held in the custody of United Kingdom forces in Iraq was attributable to any entity other than the United Kingdom. The Court should therefore treat with some scepticism the Government’s argument that attributing the detention to the United Kingdom would “introduce serious operational difficulties”. In any event, the problems adverted to by the Government were far from intractable. In a multi-State operation, responsibility lies where effective command and control is vested and practically exercised. Moreover, multiple and concurrent attribution was possible in respect of conduct deriving from the activity of an international organisation and/or one or more States. The applicant resisted the Government’s conclusion that “the Convention was not designed, or intended, to cover this type of multinational military operation conducted under the overall control of an international organisation such as the United Nations”. On the contrary, the applicant contended that the Court’s case-law established that Contracting States could not escape their responsibilities under the Convention by transferring powers to international organisations or creating joint authorities against which Convention rights or an equivalent standard could not be secured. 70. The applicant emphasised that the majority of the House of Lords held that his detention was attributable to the United Kingdom and not the United Nations. He adopted and relied upon their reasoning and conclusions. He submitted that there was no warrant for the Government’s suggestion that the United Nations had assumed ultimate, still less effective, authority and control over the United Kingdom forces in Iraq. The position was clearly distinguishable from that considered by the Court in Behrami and Saramati (cited above). 71. The invasion of Iraq by the United States-led Coalition Forces in March 2003 was not a United Nations operation. This was the first, stark contrast with the position in Kosovo, where United Nations Security Council Resolution 1244 was a prior and explicit coercive measure adopted by the United Nations Security Council acting under Chapter VII of the Charter of the United Nations as the “solution” to the identified threat to international peace and security in Kosovo (see Behrami and Saramati, cited above, § 129). The respective roles and responsibilities of the Coalition Forces and the United Nations in Iraq were defined as early as 8 May 2003, in a letter from the Permanent Representatives of the United States of America and the United Kingdom to the President of the Security Council (see paragraph 27 above). The Coalition Forces would work through the Coalition Provisional Authority (CPA), which they had created, to provide for security in Iraq. The role of the United Nations was recognised as being vital in “providing humanitarian relief, in supporting the reconstruction of Iraq, and in helping in the formation of an Iraqi interim authority”. Those respective roles and responsibilities were repeated in United Nations Security Council Resolution 1483 (see paragraph 29 above). The applicant submitted that it was wrong of the Government to underplay the significance of Resolution 1483, which was adopted under Chapter VII of the Charter and expressly set out the roles of all parties concerned. 72. In the applicant’s submission, the language of United Nations Security Council Resolution 1511 did not support the Government’s interpretation that, through it, responsibility shifted from the United Kingdom to the United Nations. Paragraph 1 of Resolution 1511 recognised that the CPA, and not the United Nations, would continue to exercise authority and control until a representative government could be established. Paragraph 8 resolved that the United Nations would strengthen its vital role, by reference to the tasks outlined in Resolution 1483, namely humanitarian relief, reconstruction, and working towards the establishment of a representative government. Had the United Nations intended fundamentally to alter the legal position by assuming ultimate control and authority for the Coalition Forces in Iraq it was, in the applicant’s view, inconceivable that it would not have referred to this when expressly addressing the need to strengthen its role in Iraq. At paragraph 13 of Resolution 1511, where the United Nations Security Council authorised a Multinational Force under unified command to take all necessary measures to contribute to the maintenance of peace and security, this was a simple authorisation and not a delegation. There was no seizing of effective, or even ultimate, control and authority by the United Nations Security Council. The unified command over the Multinational Force was, as it had always been, under the control and authority of the United States of America and the United Kingdom. Similarly, Resolution 1546 drew a clear distinction between the respective roles of the United Nations and the Multinational Force. Moreover, the wording of the letter from the US Secretary of State to the President of the United Nations Security Council, annexed to Resolution 1546, entirely undermined any suggestion that the Multinational Force was, or was soon to be, under United Nations authority and control. (iii) The third-party interveners 73. The non-governmental organisations Liberty and JUSTICE, third-party interveners submitted that, as a matter of law, conduct stemming from the work of an international organisation could be attributable to (a) the international organisation alone; (b) a State or States Parties to the international organisation and sufficiently involved in the conduct; or (c) both the international organisation and the State or States Parties. Whether the conduct in question fell to be characterised as (a), (b) or (c) would, most often, be essentially a matter of fact and dependent on the specific circumstances of each individual case. In this context, the highly fact-sensitive decision in Behrami and Saramati (cited above) needed to be handled with care. Moreover, it would appear that the Court’s approach in Behrami and Saramati followed from the way in which the case was argued before it. Since the applicants argued that KFOR was the entity responsible for the relevant acts of detention and de-mining, the Court did not consider whether the States had effective control over the conduct in their own right as sovereign States. (b) The Court’s assessment 74. Article 1 of the Convention reads as follows: “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention.” As provided by this Article, the engagement undertaken by a Contracting State is confined to “securing” (“ reconnaître ” in the French text) the listed rights and freedoms to persons within its own “jurisdiction” (see Soering v. the United Kingdom, 7 July 1989, § 86, Series A no. 161, and Banković and Others v. Belgium and Others (dec.) [GC], no. 52207/99, § 66, ECHR 2001 ‑ XII). “Jurisdiction” under Article 1 is a threshold criterion. The exercise of jurisdiction is a necessary condition for a Contracting State to be able to be held responsible for acts or omissions imputable to it which give rise to an allegation of the infringement of rights and freedoms set forth in the Convention (see Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, § 311, ECHR 2004 ‑ VII). 75. The Court notes that, before the Divisional Court and the Court of Appeal in the first set of domestic proceedings brought by the applicant, the Government accepted that he fell within United Kingdom jurisdiction under Article 1 of the Convention during his detention in a British-run military prison in Basra, south-east Iraq. It was only before the House of Lords that the Government argued, for the first time, that the applicant did not fall within United Kingdom jurisdiction because his detention was attributable to the United Nations rather than to the United Kingdom. The majority of the House of Lords rejected the Government’s argument and held that the internment was attributable to British forces (see paragraphs 16-18 above). 76. When examining whether the applicant’s detention was attributable to the United Kingdom or, as the Government submit, the United Nations, it is necessary to examine the particular facts of the case. These include the terms of the United Nations Security Council resolutions which formed the framework for the security regime in Iraq during the period in question. In performing this exercise, the Court is mindful of the fact that it is not its role to seek to define authoritatively the meaning of provisions of the Charter of the United Nations and other international instruments. It must nevertheless examine whether there was a plausible basis in such instruments for the matters impugned before it (see Behrami and Saramati, cited above, § 122). The principles underlying the Convention cannot be interpreted and applied in a vacuum and the Court must take into account relevant rules of international law (ibid.). It relies for guidance in this exercise on the statement of the International Court of Justice in paragraph 114 of its Advisory Opinion Legal Consequences for States of the Continued Presence of South Africa in Namibia, notwithstanding Security Council Resolution 276 (1970) (hereinafter “ Namibia ”) (see paragraph 49 above), indicating that a United Nations Security Council resolution should be interpreted in the light not only of the language used but also the context in which it was adopted. 77. The Court takes as its starting point that, on 20 March 2003, the United Kingdom together with the United States of America and their Coalition partners, through their armed forces, entered Iraq with the aim of displacing the Ba’ath regime then in power. At the time of the invasion, there was no United Nations Security Council resolution providing for the allocation of roles in Iraq in the event that the existing regime was displaced. Major combat operations were declared to be complete by 1 May 2003 and the United States of America and the United Kingdom became Occupying Powers within the meaning of Article 42 of the Hague Regulations (see paragraph 42 above). As explained in the letter dated 8 May 2003 sent jointly by the Permanent Representatives of the United Kingdom and the United States of America to the President of the United Nations Security Council (see paragraph 27 above), the United States of America and the United Kingdom, having displaced the previous regime, created the CPA “to exercise powers of government temporarily”. One of the powers of government specifically referred to in the letter of 8 May 2003 to be exercised by the United States of America and the United Kingdom through the CPA was the provision of security in Iraq. The letter further stated that “[t]he United States, the United Kingdom and Coalition partners, working through the Coalition Provisional Authority, shall, inter alia, provide for security in and for the provisional administration of Iraq, including by ... assuming immediate control of Iraqi institutions responsible for military and security matters”. The letter acknowledged that the United Nations had “a vital role to play in providing humanitarian relief, in supporting the reconstruction of Iraq, and in helping in the formation of an Iraqi interim authority” and stated that the United States of America, the United Kingdom and Coalition partners were ready to work closely with representatives of the United Nations and its specialised agencies and would also welcome the support and contributions of member States, international and regional organisations, and other entities, “under appropriate coordination arrangements with the Coalition Provisional Authority”. In its first legislative act, CPA Regulation No. 1 of 16 May 2003, the CPA declared that it would “exercise powers of government temporarily in order to provide for the effective administration of Iraq during the period of transitional administration, to restore conditions of security and stability” (see paragraph 28 above). 78. The first United Nations Security Council resolution after the invasion was Resolution 1483, adopted on 22 May 2003 (see paragraph 29 above). In the Preamble, the Security Council noted the letter of 8 May 2003 from the Permanent Representatives of the United States of America and the United Kingdom and recognised that the United States of America and the United Kingdom were Occupying Powers in Iraq, under unified command (the CPA), and that specific authorities, responsibilities, and obligations applied to them under international humanitarian law. The Security Council noted further that other States that were not Occupying Powers were working or might in the future work under the CPA, and welcomed the willingness of member States to contribute to stability and security in Iraq by contributing personnel, equipment and other resources “under the Authority”. Acting under Chapter VII of the Charter of the United Nations, the Security Council called upon the Occupying Powers, through the CPA, “to promote the welfare of the Iraqi people through the effective administration of the territory, including in particular working towards the restoration of conditions of security and stability”. The United Kingdom and the United States of America were encouraged “to inform the Council at regular intervals of their efforts under this Resolution”. The Preamble to Resolution 1483 recognised that the United Nations were to “play a vital role in humanitarian relief, the reconstruction of Iraq and the restoration and establishment of national and local institutions for representative governance”. The Secretary-General of the United Nations was requested to appoint a Special Representative for Iraq, whose independent responsibilities were to include, inter alia, reporting regularly to the Security Council on his activities under this Resolution, coordinating activities of the United Nations in post-conflict processes in Iraq and coordinating among United Nations and international agencies engaged in humanitarian assistance and reconstruction activities in Iraq. Resolution 1483 did not assign any security role to the United Nations. The Government does not contend that, at this stage in the invasion and occupation, the acts of its armed forces were in any way attributable to the United Nations. 79. In Resolution 1511, adopted on 16 October 2003, the United Nations Security Council, again acting under Chapter VII of the Charter, underscored the temporary nature of the exercise by the CPA of the authorities and responsibilities set out in Resolution 1483, which would cease as soon as an internationally recognised, representative Iraqi government could be sworn in. In paragraphs 13 and 14, the Security Council authorised “a Multinational Force under unified command to take all necessary measures to contribute to the maintenance of security and stability in Iraq” and urged member States “to contribute assistance under this United Nations mandate, including military forces, to the Multinational Force referred to in paragraph 13” (see paragraph 31 above). The United States of America, on behalf of the Multinational Force, was requested periodically to report on the efforts and progress of the Force. The Security Council also resolved that the United Nations, acting through the Secretary-General, his Special Representative, and the United Nations Assistance Mission for Iraq, should strengthen its role in Iraq, including by providing humanitarian relief, promoting the economic reconstruction of and conditions for sustainable development in Iraq, and advancing efforts to restore and establish national and local institutions for representative government. 80. The Court does not consider that, as a result of the authorisation contained in Resolution 1511, the acts of soldiers within the Multinational Force became attributable to the United Nations or – more importantly, for the purposes of this case – ceased to be attributable to the troop-contributing nations. The Multinational Force had been present in Iraq since the invasion and had been recognised already in Resolution 1483, which welcomed the willingness of member States to contribute personnel. The unified command structure over the Force, established from the start of the invasion by the United States of America and the United Kingdom, was not changed as a result of Resolution 1511. Moreover, the United States of America and the United Kingdom, through the CPA which they had established at the start of the occupation, continued to exercise the powers of government in Iraq. Although the United States of America was requested to report periodically to the Security Council about the activities of the Multinational Force, the United Nations did not, thereby, assume any degree of control over either the Force or any other of the executive functions of the CPA. 81. The final resolution of relevance to the present issue was Resolution 1546 (see paragraph 35 above). It was adopted on 8 June 2004, twenty days before the transfer of power from the CPA to the Iraqi interim government and some four months before the applicant was taken into detention. Annexed to the Resolution was a letter from the Prime Minister of the interim government of Iraq, seeking from the Security Council a new resolution on the Multinational Force mandate. There was also annexed a letter from the US Secretary of State to the President of the United Nations Security Council, confirming that “the Multinational Force [under unified command] [wa]s prepared to continue to contribute to the maintenance of security in Iraq” and informing the President of the Security Council of the goals of the Multinational Force and the steps which its Commander intended to take to achieve those goals. It does not appear from the terms of this letter that the US Secretary of State considered that the United Nations controlled the deployment or conduct of the Multinational Force. In Resolution 1546 the Security Council, acting under Chapter VII of the Charter of the United Nations, reaffirmed the authorisation for the Multinational Force established under Resolution 1511. There is no indication in Resolution 1546 that the Security Council intended to assume any greater degree of control or command over the Multinational Force than it had exercised previously. 82. In Resolution 1546 the Security Council also decided that, in implementing their mandates in Iraq, the Special Representative of the Secretary-General and the United Nations Assistance Mission for Iraq (UNAMI) should play leading roles in assisting in the establishment of democratic institutions, economic development and humanitarian assistance. The Court notes that the Secretary-General and UNAMI, both clearly organs of the United Nations, in their quarterly and bi-monthly reports to the Security Council for the period during which the applicant was detained, repeatedly protested about the extent to which security internment was being used by the Multinational Force (see paragraphs 40 and 41 above). It is difficult to conceive that the applicant’s detention was attributable to the United Nations and not to the United Kingdom when United Nations organs, operating under the mandate of Resolution 1546, did not appear to approve of the practice of indefinite internment without trial and, in the case of UNAMI, entered into correspondence with the United States embassy in an attempt to persuade the Multinational Force under American command to modify the internment procedure. 83. In the light of the foregoing, the Court agrees with the majority of the House of Lords that the United Nations’ role as regards security in Iraq in 2004 was quite different from its role as regards security in Kosovo in 1999. The comparison is relevant, since in its decision in Behrami and Saramati (cited above) the Court concluded, inter alia, that Mr Saramati’s detention was attributable to the United Nations and not to any of the respondent States. It is to be recalled that the international security presence in Kosovo was established by United Nations Security Council Resolution 1244, adopted on 10 June 1999, in which, “determined to resolve the grave humanitarian situation in Kosovo”, the Security Council “decide[d] on the deployment in Kosovo, under United Nations auspices, of international civil and security presences”. The Security Council therefore authorised “member States and relevant international organisations to establish the international security presence in Kosovo” and directed that there should be “substantial North Atlantic Treaty Organization participation” in the Force, which “must be deployed under unified command and control”. In addition, Resolution 1244 authorised the Secretary-General of the United Nations to establish an international civil presence in Kosovo in order to provide an interim administration for Kosovo. The United Nations, through a Special Representative appointed by the Secretary-General in consultation with the Security Council, was to control the implementation of the international civil presence and coordinate closely with the international security presence (see Behrami and Saramati, cited above, §§ 3, 4 and 41). On 12 June 1999, two days after the Resolution was adopted, the first elements of the NATO-led Kosovo Force (KFOR) entered Kosovo. 84. It would appear from the opinion of Lord Bingham in the first set of proceedings brought by the applicant that it was common ground between the parties before the House of Lords that the test to be applied in order to establish attribution was that set out by the International Law Commission in Article 5 of its Draft Articles on the Responsibility of International Organisations and in its commentary thereon, namely that the conduct of an organ of a State placed at the disposal of an international organisation should be attributable under international law to that organisation if the organisation exercises effective control over that conduct (see paragraphs 18 and 56 above). For the reasons set out above, the Court considers that the United Nations Security Council had neither effective control nor ultimate authority and control over the acts and omissions of troops within the Multinational Force and that the applicant’s detention was not, therefore, attributable to the United Nations. 85. The internment took place within a detention facility in Basra City, controlled exclusively by British forces, and the applicant was therefore within the authority and control of the United Kingdom throughout (see paragraph 10 above; see also Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, § 136, ECHR 2011, and Al-Saadoon and Mufdhi v. the United Kingdom (dec.), no. 61498/08, § 88, 30 June 2009; see also the judgment of the United States Supreme Court in Munaf v. Geren, paragraph 54 above). The decision to hold the applicant in internment was made by the British officer in command of the detention facility. Although the decision to continue holding the applicant in internment was, at various points, reviewed by committees including Iraqi officials and non-United Kingdom representatives from the Multinational Force, the Court does not consider that the existence of these reviews operated to prevent the detention from being attributable to the United Kingdom. 86. In conclusion, the Court agrees with the majority of the House of Lords that the internment of the applicant was attributable to the United Kingdom and that during his internment the applicant fell within the jurisdiction of the United Kingdom for the purposes of Article 1 of the Convention. 2. Alleged breach of Article 5 § 1 of the Convention (a) The parties’ submissions (i) The Government 87. The Government contended that the United Kingdom was under an obligation to detain the applicant, pursuant to United Nations Security Council Resolution 1546. They emphasised that between 22 May 2003 and 28 June 2004, British forces operated in Iraq under a legal regime derived from the law of belligerent occupation, as modified by the United Nations Security Council in Resolutions 1483 and 1511 (see paragraphs 29 and 31 above). Thus, the Preamble to Resolution 1483 in terms recognised the “specific authorities, responsibilities and obligations” of the Occupying Powers, including those under the Geneva Conventions of 1949. In the Government’s submission, customary international law, as reflected in Article 43 of the Hague Regulations (see paragraph 42 above), required the Occupying Power to “take all the measures in his power to restore, and ensure, as far as possible, public order and safety” in the occupied territory. In its judgment in Democratic Republic of the Congo (DRC) v. Uganda, the International Court of Justice described this as including a duty “to protect the inhabitants of the occupied territory against acts of violence, and not to tolerate such violence by any third party” (see paragraph 50 above). In addition, Article 27 of the Fourth Geneva Convention placed a responsibility on the Occupying Power to take steps to protect the civilian population “against all acts of violence or threats thereof” and Article 64 referred to a general obligation to ensure the “orderly government” of the occupied territory (see paragraph 43 above). The Occupying Power could also protect its forces and administration from acts of violence. It had broad powers of compulsion and restraint over the population of the occupied territory. Article 78 of the Fourth Geneva Convention recognised the power to detain where “the Occupying Power considers it necessary, for imperative reasons of security, to take safety measures concerning protected persons”. In the Government’s submission, the “specific authorities, responsibilities and obligations” of an Occupying Power, as recognised in United Nations Security Council Resolution 1483, included the power to detain persons in an occupied territory on security grounds. This power was derived from the duty of governance imposed upon an Occupying Power by customary international law. It was also derived from the domestic law of the occupied territory as modified by the Occupying Power (as, for example, in CPA Memorandum No. 3 (Revised): see paragraph 36 above). 88. The Government further submitted that United Nations Security Council Resolution 1546, like Resolution 1511, recognised in its Preamble that international support for the restoration of security and stability was “essential” to the well-being of the people of Iraq. Resolution 1546 reaffirmed the mandate of the Multinational Force, having regard to the request from the Prime Minister of the Iraqi interim government for the Multinational Force to remain in Iraq after the end of the occupation (see paragraph 35 above). Paragraph 10 of Resolution 1546 specifically provided the Multinational Force with “authority to take all necessary measures to contribute to the maintenance of security and stability in Iraq in accordance with the letters annexed to this Resolution”. It was clear from the text of Resolution 1546 that the annexed letters were integral to it and defined the scope of the powers conferred by the Security Council. The letter from US Secretary of State Colin Powell expressly referred to internment as one of the tasks which the Multinational Force was to continue to perform. In the Government’s view, therefore, Resolution 1546 could not have been clearer in terms of authorising the Multinational Force to use preventive detention where “necessary for imperative reasons of security in Iraq”. It was also clear from Resolution 1546 and the letters annexed thereto that what was authorised by the Security Council was a regime of detention modelled on the “specific authorities, responsibilities and obligations” that had existed during the period of occupation. This was also the view taken by Lord Bingham in the House of Lords when he considered the Resolution (see paragraph 20 above). By participating in the Multinational Force and thus taking up the authorisation conferred by the Security Council, the United Kingdom agreed to assist in the achievement of the specific objectives to maintain security and stability in Iraq set out in Resolution 1546. As Lord Bingham put it, the United Kingdom was “bound to exercise its power of detention where this was necessary for imperative reasons of security”. The facts of the applicant’s case, and in particular the findings of the Special Immigration Appeals Commission with regard to the applicant’s involvement in attacks against Coalition Forces (see paragraph 15 above), demonstrated the importance of such an obligation. 89. The Government pointed out that Article 25 of the Charter of the United Nations created an obligation for United Nations member States to “accept and carry out the decisions of the Security Council”. The effect of Article 103 of the Charter was that the obligation under Article 25 had to prevail over obligations under other international treaties (see paragraph 46 above). This was confirmed by the decision of the International Court of Justice in the Lockerbie case (see paragraph 48 above). As Lord Bingham pointed out, it was also confirmed by leading commentators such as Judges Simma, Bernhardt and Higgins (see paragraph 35 of the House of Lords judgment, at paragraph 20 above). As a matter of principle, the primacy accorded by Article 103 of the Charter was unsurprising: one of the core objectives of the United Nations was to maintain and restore international peace and security and Article 103 was central to the Security Council’s ability to give practical effect to the measures it had decided upon. 90. In the Government’s submission, the effect of Article 103 was not confined to the decisions of the Security Council obliging States to act in a certain way. It also applied to the decisions of the Security Council authorising action. The practice of the Security Council, at least since the early 1990s, had been to seek to achieve its aims, and to discharge its responsibility, in respect of the maintenance of international peace and security by authorising military action by States and organisations such as NATO. As the Court had mentioned in its decision in Behrami and Saramati (cited above, § 132), no agreements had ever been made under Article 43 of the Charter of the United Nations by member States undertaking to make troops available to the United Nations. In the absence of any such agreement, no State could be required to take military action. Unless the Security Council could proceed by authorisation, it would be unable to take military measures at all, thus frustrating an important part of the Chapter VII machinery. However, if a resolution authorising military action did not engage Article 103 of the Charter, the result would be that any State acting under that authorisation would breach any conflicting treaty obligations, which would fatally undermine the whole system of the Charter for the protection of international peace and security. It was plain that this was not the way that States had regarded the legal position under any of the numerous resolutions issued by the Security Council authorising military action. It had also been the view of the most authoritative commentators; as Lord Bingham observed at paragraph 33 of the House of Lords judgment, there is “a strong and to my mind persuasive body of academic opinion which would treat Article 103 as applicable where conduct is authorised by the Security Council as where it is required”. 91. In consequence, it was the Government’s case that the application of Article 5 of the Convention was displaced by the legal regime established by United Nations Security Council Resolution 1546 by reason of the operation of Articles 25 and 103 of the Charter of the United Nations, to the extent that Article 5 was not compatible with that legal regime. The Convention was a part of international law and derived its normative force from international law. It was concluded only five years after the Charter of the United Nations and if there had been any intention to seek to disapply Article 103 to the provisions of the Convention, this would have been clearly stated. Moreover, the Court had never suggested in its case-law that it considered that Article 103 did not apply to displace obligations under the Convention which were incompatible with an obligation under a United Nations Security Council resolution. On the contrary, in Behrami and Saramati (cited above, §§ 147 and 149), the Grand Chamber explicitly recognised that the Convention should not be applied in such a way as to undermine or conflict with actions taken under Chapter VII by the Security Council. 92. The Government contended that the applicant’s reliance on the judgment of the European Court of Justice in Kadi (see paragraph 53 above) was misplaced, since the European Court of Justice did not decide that case on the point of principle currently before this Court. Nor was the Court’s judgment in Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland ([GC], no. 45036/98, ECHR 2005 ‑ VI) (hereinafter “ Bosphorus ”) of assistance to the applicant, since in that case the Court was able to come to the conclusion that there had been no violation of the Convention without having to address any distinct argument based on Article 103 of the Charter of the United Nations. The Government also rejected the applicant’s argument that the Convention recognised a limit to the protection of human rights, applicable in this case, by way of the power of derogation under Article 15 in time of national emergencies. The proposition that it would have been possible for the United Kingdom to derogate under Article 15 in respect of an international conflict was not supported by Banković and Others, cited above, § 62). (ii) The applicant 93. The applicant submitted that United Nations Security Council Resolution 1546 did not require the United Kingdom to hold him in internment in breach of Article 5 of the Convention. In Resolution 1546 the Security Council conferred on the United Kingdom a power, but not an obligation, to intern. As the International Court of Justice stated in the Namibia case, “the language of a resolution of the Security Council should be carefully analysed before a conclusion can be made as to its binding effect” (see paragraph 49 above). Where appropriate, the Security Council could require States to take specific action. It did so in the resolutions under consideration in the Kadi and Bosphorus cases (cited above), where States were required, “with no autonomous discretion”, respectively to freeze the assets of designated persons or to impound aircraft operating from the Federal Republic of Yugoslavia. In contrast, the language of Resolution 1546 and the letters annexed thereto made it clear that the Security Council was asked to provide, and did provide, an authorisation to the Multinational Force to take the measures that it considered necessary to contribute to the maintenance of security and stability in Iraq. It did not require a State to take action incompatible with its human rights obligations, but instead left a discretion to the State as to whether, when and how to contribute to the maintenance of security. Respect for human rights was one of the paramount principles of the Charter of the United Nations and if the Security Council had intended to impose an obligation on British forces to act in breach of the United Kingdom’s international human rights obligations, it would have used clear and unequivocal language. It followed that the rule of priority under Article 103 of the Charter of the United Nations did not come into effect. 94. The applicant argued that the rationale of the European Court of Justice and the Advocate General in Kadi (see paragraph 53 above) applied equally to the Convention. In Kadi, the European Court of Justice held that European Community measures adopted to give effect to United Nations Security Council resolutions were subject to review on grounds of compatibility with human rights as protected by Community law. This review concerned the internal lawfulness of such measures under Community law and not the lawfulness of the United Nations Security Council resolutions to which they were intended to give effect. The same principles applied in the present case since, in the applicant’s submission, member States acting under United Nations Security Council Resolution 1546 had a “free choice” as to the “procedure applicable”, which meant that the procedure had to be lawful. The essence of the judgment in Kadi was that obligations arising from United Nations Security Council resolutions do not displace the requirements of human rights as guaranteed in Community law. It was true that the European Court of Justice examined the validity of a Community regulation and did not examine directly any member State action implementing United Nations Security Council resolutions. But this was a technical point, resulting from the fact that the challenge was brought against a Community measure and not a national one; it did not affect the substance or scope of the European Court of Justice’s ruling. 95. In the applicant’s view, the Government’s argument would result in a principle under which United Nations Security Council resolutions, whatever their content, could entirely displace any and all Convention rights and obligations. It would introduce a general, blanket derogation from all Convention rights. Article 15 permitted a State to derogate from certain Convention rights, including Article 5, but only in times of war or public emergency and under strict conditions, subject to the Court’s review. Moreover, it would be clearly incompatible with the principle of effectiveness to exclude a priori the application of the Convention in relation to all action undertaken by a Contracting Party pursuant to a United Nations Security Council resolution. If it were accepted that international law obligations displaced substantive provisions of the Convention, the scope of application of the Convention would be substantially reduced and protection would be denied in some cases where it was most needed. Such a position would be contrary to the principle expressed by the Court in its judgment in Bosphorus (cited above). (iii) The third-party interveners 96. The non-governmental organisations Liberty and JUSTICE, third-party interveners, pointed out that the Court’s case-law, particularly the judgment in Bosphorus (cited above), supported the view that international law obligations were not, prima facie, able to displace substantive obligations under the Convention, although they might be relevant when considering specific components of Convention rights. One way in which the Court had considered them relevant was encapsulated in the presumption of “equivalent protection” provided by a framework for the protection of fundamental rights within an international organisation of which the Contracting State is a member. (b) The Court’s assessment 97. Article 5 § 1 of the Convention provides: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court; (b) the lawful arrest or detention of a person for noncompliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; (d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority; (e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.” 98. The applicant was detained in a British military facility for over three years, between 10 October 2004 and 30 December 2007. His continuing internment was authorised and reviewed, initially by British senior military personnel and subsequently also by representatives of the Iraqi and United Kingdom governments and by non-British military personnel, on the basis of intelligence material which was never disclosed to him. He was able to make written submissions to the reviewing authorities but there was no provision for an oral hearing. The internment was authorised “for imperative reasons of security”. At no point during the internment was it intended to bring criminal charges against the applicant (see paragraphs 11-13 above). 99. The Court emphasises at the outset that Article 5 enshrines a fundamental human right, namely the protection of the individual against arbitrary interference by the State with his or her right to liberty. The text of Article 5 makes it clear that the guarantees it contains apply to “everyone”. Sub-paragraphs (a) to (f) of Article 5 § 1 contain an exhaustive list of permissible grounds on which persons may be deprived of their liberty. No deprivation of liberty will be compatible with Article 5 § 1 unless it falls within one of those grounds or unless it is provided for by a lawful derogation under Article 15 of the Convention, which allows for a State “in time of war or other public emergency threatening the life of the nation” to take measures derogating from its obligations under Article 5 “to the extent strictly required by the exigencies of the situation” (see, inter alia, Ireland v. the United Kingdom, 18 January 1978, § 194, Series A no. 25, and A. and Others v. the United Kingdom, cited above, §§ 162 and 163). 100. It has long been established that the list of grounds of permissible detention in Article 5 § 1 does not include internment or preventive detention where there is no intention to bring criminal charges within a reasonable time (see Lawless v. Ireland ( no. 3), 1 July 1961, §§ 13 and 14, Series A no. 3; Ireland v. the United Kingdom, cited above, § 196; Guzzardi v. Italy, 6 November 1980, § 102, Series A no. 39; and Jėčius v. Lithuania, no. 34578/97, §§ 47-52, ECHR 2000-IX). The Government do not contend that the detention was justified under any of the exceptions set out in sub-paragraphs (a) to (f) of Article 5 § 1, nor did they purport to derogate under Article 15. Instead, they argue that there was no violation of Article 5 § 1 because the United Kingdom’s duties under that provision were displaced by the obligations created by United Nations Security Council Resolution 1546. They contend that, as a result of the operation of Article 103 of the Charter of the United Nations (see paragraph 46 above), the obligations under the United Nations Security Council resolution prevailed over those under the Convention. 101. Article 103 of the Charter of the United Nations provides that the obligations of the members of the United Nations under the Charter shall prevail in the event of a conflict with obligations under any other international agreement. Before it can consider whether Article 103 had any application in the present case, the Court must determine whether there was a conflict between the United Kingdom’s obligations under United Nations Security Council Resolution 1546 and its obligations under Article 5 § 1 of the Convention. In other words, the key question is whether Resolution 1546 placed the United Kingdom under an obligation to hold the applicant in internment. 102. In its approach to the interpretation of Resolution 1546, the Court has reference to the considerations set out in paragraph 76 above. In addition, the Court must have regard to the purposes for which the United Nations was created. As well as the purpose of maintaining international peace and security, set out in the first sub-paragraph of Article 1 of the Charter of the United Nations, the third sub-paragraph provides that the United Nations was established to “achieve international cooperation in ... promoting and encouraging respect for human rights and for fundamental freedoms”. Article 24 § 2 of the Charter requires the Security Council, in discharging its duties with respect to its primary responsibility for the maintenance of international peace and security, to “act in accordance with the Purposes and Principles of the United Nations”. Against this background, the Court considers that, in interpreting its resolutions, there must be a presumption that the Security Council does not intend to impose any obligation on member States to breach fundamental principles of human rights. In the event of any ambiguity in the terms of a United Nations Security Council resolution, the Court must therefore choose the interpretation which is most in harmony with the requirements of the Convention and which avoids any conflict of obligations. In the light of the United Nations’ important role in promoting and encouraging respect for human rights, it is to be expected that clear and explicit language would be used were the Security Council to intend States to take particular measures which would conflict with their obligations under international human rights law. 103. In this respect, the Court notes that Resolution 1546 was preceded by letters to the President of the Security Council from the Prime Minister of the interim government of Iraq and the US Secretary of State (see paragraph 34 above). In his letter, the Iraqi Prime Minister looked forward to the passing back of full sovereignty to the Iraqi authorities. He requested the Security Council, however, to make a new resolution authorising the Multinational Force to remain on Iraqi territory and to contribute to maintaining security there, “including through the tasks and arrangements” set out in the accompanying letter from the US Secretary of State. In his letter, the US Secretary of State recognised the request of the government of Iraq for the continued presence of the Multinational Force in Iraq and confirmed that the Multinational Force under unified command was prepared to continue to contribute to the maintenance of security in Iraq, including by preventing and deterring terrorism. He added that, under the agreed arrangement, the Multinational Force stood: “ready to continue to undertake a broad range of tasks to contribute to the maintenance of security and to ensure Force protection. These include activities necessary to counter ongoing security threats posed by forces seeking to influence Iraq’s political future through violence. This will include combat operations against members of these groups, internment where this is necessary for imperative reasons of security, and the continued search for and securing of weapons that threaten Iraq’s security. ...”. 104. These letters were annexed to United Nations Security Council Resolution 1546 (see paragraph 35 above). The Preamble to the Resolution looked forward to the end of the occupation and the assumption of full responsibility and authority by a fully sovereign Iraqi government; recognised the request of the Iraqi Prime Minister in the annexed letter to retain the presence of the Multinational Force; welcomed the willingness of the Multinational Force to continue efforts to contribute to the maintenance of security and stability in Iraq and also noted “the commitment of all forces ... to act in accordance with international law, including obligations under international humanitarian law”. In paragraph 9 of the Resolution, the Security Council noted that the Multinational Force remained in Iraq at the request of the incoming government and reaffirmed the authorisation for the Multinational Force first established under Resolution 1511, “having regard to the letters annexed to this Resolution”. In paragraph 10 it decided that the Multinational Force: “shall have the authority to take all necessary measures to contribute to the maintenance of security and stability in Iraq in accordance with the letters annexed to this Resolution expressing, inter alia, the Iraqi request for the continued presence of the Multinational Force and setting out its tasks, including by preventing and deterring terrorism ...” 105. The Court does not consider that the language used in this Resolution indicates unambiguously that the Security Council intended to place member States within the Multinational Force under an obligation to use measures of indefinite internment without charge and without judicial guarantees, in breach of their undertakings under international human rights instruments including the Convention. Internment is not explicitly referred to in the Resolution. In paragraph 10, the Security Council decides that the Multinational Force shall have authority “to take all necessary measures to contribute to the maintenance of security and stability in Iraq in accordance with the letters annexed”, which, inter alia, set out the Multinational Force’s tasks. Internment is listed in US Secretary of State Powell’s letter, as an example of the “broad range of tasks” which the Multinational Force stood ready to undertake. In the Court’s view, the terminology of the Resolution appears to leave the choice of the means to achieve this end to the member States within the Multinational Force. Moreover, in the Preamble, the commitment of all forces to act in accordance with international law is noted. It is clear that the Convention forms part of international law, as the Court has frequently observed (see, for example, Al-Adsani v. the United Kingdom [GC], no. 35763/97, § 55, ECHR 2001 ‑ XI). In the absence of clear provision to the contrary, the presumption must be that the Security Council intended States within the Multinational Force to contribute towards the maintenance of security in Iraq while complying with their obligations under international human rights law. 106. Furthermore, it is difficult to reconcile the argument that Resolution 1546 placed an obligation on member States to use internment with the objections repeatedly made by the United Nations Secretary-General and the United Nations Assistance Mission for Iraq (UNAMI) to the use of internment by the Multinational Force. Under paragraph 7 of Resolution 1546 both the Secretary-General, through his Special Representative, and UNAMI were specifically mandated by the Security Council to “promote the protection of human rights ... in Iraq”. In his quarterly reports throughout the period of the applicant’s internment, the Secretary-General repeatedly described the extent to which security internment was being used by the Multinational Force as a pressing human rights concern. UNAMI reported on the human rights situation every few months during the same period. It also repeatedly expressed concern at the large numbers being held in indefinite internment without judicial oversight (see paragraphs 40-41 above). 107. The Court has considered whether, in the absence of express provision in Resolution 1546, there was any other legal basis for the applicant’s detention which could operate to disapply the requirements of Article 5 § 1 of the Convention. The Government have argued that the effect of the authorisations in paragraphs 9 and 10 of Resolution 1546 was that the Multinational Force continued to exercise the “specific authorities, responsibilities and obligations” that had vested in the United States of America and the United Kingdom as Occupying Powers under international humanitarian law and that these “obligations” included the obligation to use internment where necessary to protect the inhabitants of the occupied territory against acts of violence. Some support for this submission can be derived from the findings of the domestic courts (see, for example, Lord Bingham at paragraph 32 of the House of Lords judgment; see paragraph 20 above). The Court notes in this respect that paragraph 2 of Resolution 1546 clearly stated that the occupation was to end by 30 June 2004. However, even assuming that the effect of Resolution 1546 was to maintain, after the transfer of authority from the CPA to the interim government of Iraq, the position under international humanitarian law which had previously applied, the Court does not find it established that international humanitarian law places an obligation on an Occupying Power to use indefinite internment without trial. Article 43 of the Hague Regulations requires an Occupying Power to take “all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country” (see paragraph 42 above). While the International Court of Justice in its judgment Armed Activities on the Territory of the Congo (Democratic Republic of the Congo (DRC) v. Uganda) interpreted this obligation to include the duty to protect the inhabitants of the occupied territory from violence, including violence by third parties, it did not rule that this placed an obligation on the Occupying Power to use internment; indeed, it also found that Uganda, as an Occupying Power, was under a duty to secure respect for the applicable rules of international human rights law, including the provisions of the International Covenant for the Protection of Civil and Political Rights, to which it was a signatory (see paragraph 50 above). In the Court’s view, it would appear from the provisions of the Fourth Geneva Convention that under international humanitarian law internment is to be viewed not as an obligation on the Occupying Power but as a measure of last resort (see paragraph 43 above). 108. A further legal basis might be provided by the agreement, set out in the letters annexed to Resolution 1546, between the Iraqi government and the United States government, on behalf of the other States contributing troops to the Multinational Force, including the United Kingdom, that the Multinational Force would continue to carry out internment in Iraq where the Multinational Force considered this necessary for imperative reasons of security (see paragraph 34 above). However, such an agreement could not override the binding obligations under the Convention. In this respect, the Court recalls its case-law to the effect that a Contracting State is considered to retain Convention liability in respect of treaty commitments and other agreements between States subsequent to the entry into force of the Convention (see, for example, Al-Saadoon and Mufdhi, cited above, §§ 126 ‑ 28). 109. In conclusion, therefore, the Court considers that United Nations Security Council Resolution 1546, in paragraph 10, authorised the United Kingdom to take measures to contribute to the maintenance of security and stability in Iraq. However, neither Resolution 1546 nor any other United Nations Security Council resolution explicitly or implicitly required the United Kingdom to place an individual whom its authorities considered to constitute a risk to the security of Iraq in indefinite detention without charge. In these circumstances, in the absence of a binding obligation to use internment, there was no conflict between the United Kingdom’s obligations under the Charter of the United Nations and its obligations under Article 5 § 1 of the Convention. 110. In these circumstances, where the provisions of Article 5 § 1 were not displaced and none of the grounds for detention set out in sub-paragraphs (a) to (f) applied, the Court finds that the applicant’s detention constituted a violation of Article 5 § 1 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 111. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 112. The applicant submitted that his unlawful detention, for a period of three years, two months and 20 days, merited non-pecuniary damage in the region of 115,000 euros (EUR). He relied on awards made by the Court in cases such as Jėčius v. Lithuania (no. 34578/97, ECHR 2000 ‑ IX); Tsirlis and Kouloumpas v. Greece (29 May 1997, Reports of Judgments and Decisions 1997 ‑ III); and Assanidze v. Georgia ([GC], no. 71503/01, ECHR 2004 ‑ II) and also domestic case-law concerning the level of damages for unlawful detention. 113. The Government emphasised that the applicant was detained by British troops, operating as part of the Multinational Force in Iraq, because he was reasonably believed to pose a grave threat to the security of Iraq. The detention was authorised throughout under the mandate conferred by United Nations Security Council Resolution 1546 and was also in compliance with Iraqi law. Allegations that the applicant was engaged in terrorist activities in Iraq were subsequently upheld by the Special Immigration Appeals Commission (see paragraph 15 above). In these circumstances, the Government submitted that a finding of a violation would be sufficient just satisfaction. In the alternative, a sum of not more than EUR 3,900 should be awarded. This would be commensurate with the awards made to the applicants in A. and Others v. the United Kingdom ([GC], no. 3455/05, ECHR 2009), which also concerned the preventive detention of individuals suspected of terrorism. 114. The Court recalls that it is not its role under Article 41 to function akin to a domestic tort mechanism court in apportioning fault and compensatory damages between civil parties. Its guiding principle is equity, which above all involves flexibility and an objective consideration of what is just, fair and reasonable in all the circumstances of the case, including not only the position of the applicant but the overall context in which the breach occurred. Its non-pecuniary awards serve to give recognition to the fact that moral damage occurred as a result of a breach of a fundamental human right and reflect in the broadest of terms the severity of the damage (see Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § 224, ECHR 2009, and the cases cited therein). In the present case, the Court has regard to the factors raised by the Government. Nonetheless, it considers that, in view of the very long period of time during which the applicant was detained, monetary compensation should be awarded, in the sum of EUR 25,000. B. Costs and expenses 115. The applicant, emphasising the complexity and importance of the case, claimed for over 450 hours’ legal work by his solicitors and four counsel in respect of the proceedings before the Court, at a total cost of 85,946.32 pounds sterling (GBP). 116. The Government acknowledged that the issues were complex, but nonetheless submitted that the claim was excessive, given that the applicant’s legal advisers were familiar with all aspects of the claim since they had acted for the applicant in the domestic legal proceedings, which had been publicly funded. Furthermore, the hourly rates claimed by the applicant’s counsel, ranging between GBP 500 and GBP 235, and the hourly rates claimed by the applicant’s solicitors, ranging between GBP 180 and GBP 130, were unreasonably high. Nor had it been necessary to engage two Queen’s Counsel and two junior counsel to assist. 117. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 40,000 for the proceedings before the Court. C. Default interest 118. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court noted that, at the time of the invasion in March 2003, there was no UN Security Council resolution providing for the allocation of roles in Iraq if the existing |
906 | Independence and right to a fair trial | II. RELEVANT DOMESTIC LAW 16. Procedure in the Assize Court is governed by Articles 231 to 380 of the Code of Criminal Procedure ("CCP"). The Assize Court consists of the court properly speaking - the presiding judge and, normally, two other judges - and the jury, composed of citizens who satisfy the conditions of eligibility laid down by law. It tries mainly serious criminal cases sent to it by the Indictment Division and related or inseparable lesser offences. No reasons are given in its judgments, which are appealable only on points of law. A. The Assize Court jury 1. Constitution of the jury 17. For each case on the Assize Court ’ s list a jury is empanelled at the beginning of the trial. It contains nine jurors, drawn by lot from a session list. This list contains thirty-five names drawn by lot every three months from an annual list, itself consisting of a variable number of names drawn by lot from preparatory lists that are compiled in each municipality after an initial drawing of names by lot from the electoral register. One or more additional jurors are also drawn by lot and attend the trial in order that they may, if necessary, replace any juror who is unable to sit. The jury is constituted at the point when the names of nine jurors who have not been challenged and the names of the additional jurors have all been drawn by lot. 2. Challenges 18. As the names of the jurors are being drawn, the defendant or defendants are entitled to challenge up to five of them and the prosecution up to four. Their grounds for doing so cannot be given. 19. Article 668 CCP provides: "Any judge may be challenged on any of the following grounds: 1. Where the judge or his spouse is a blood relative or a relative by marriage of one of the parties or of a party ’ s spouse, up to the degree of second cousin inclusive. The challenge may be made against the judge even in the event of divorce from his spouse or the latter ’ s death where the spouse was a relative by marriage of one of the parties, up to the second degree inclusive; 2. Where the judge or his spouse, or a person in respect of whom either acts as guardian ( tuteur ), supervisory guardian ( subrogé tuteur ) or court-appointed administrator, or a company or association in whose management or supervision either takes part has an interest in the dispute; 3. Where the judge or his spouse is a blood relative or relative by marriage, to the degree indicated above, of the guardian, supervisory guardian or court-appointed administrator of one of the parties or of a director or manager of a company that is a party to the proceedings; 4. Where the judge or his spouse is dependent on one of the parties; 5. Where the judge has dealt with the case as a judge, arbitrator or legal adviser, or where he has given evidence as a witness relating to the facts of the case; 6. Where there has been litigation between the judge, his spouse or their lineal blood relatives or relatives by marriage and one of the parties, his spouse or his lineal blood relatives or relatives by marriage; 7. Where the judge or his spouse is litigating in a court of which one of the parties is a judge; 8. Where the judge or his spouse or their lineal blood relatives or relatives by marriage are in dispute over an issue similar to that between the parties; 9. Where there have been any disagreements between the judge or his spouse and one of the parties sufficiently serious to cast doubt on his impartiality." Article 669 CCP provides: "A charged person, accused or any party to the proceedings who wishes to challenge an investigating judge, a judge of the police court or one or more or all of the judges of the Criminal Court, the Court of Appeal or the Assize Court must, if the challenge is to be valid, make an application to the President of the Court of Appeal. Members of State Counsel ’ s Office cannot be challenged. The application must mention by name the judge or judges being challenged and set out the grounds relied on, together with all the supporting evidence. A party who has willingly proceeded in a court or before an investigating judge shall be entitled to make a challenge only on grounds of circumstances that have arisen since, where they are such as to constitute a ground for challenge." In the case of the Assize Court these provisions apply only to the judges and not to the jurors. 3. Taking of the oath 20. The members of the jury, standing bareheaded, are addressed by the presiding judge as follows: "You swear and promise to consider the charges that will be brought against X ... with the greatest care; not to betray either the interests of the accused or those of society, which is accusing him/her; not to communicate with anyone until you have returned your verdict; not to be swayed by hatred or spitefulness or by fear or affection; to reach your verdict in the light of the charges and the defence, according to your conscience and your innermost conviction, with the impartiality and firmness that befit a free man of integrity; and to preserve the secrecy of the deliberations, even after you have discharged your office." Each of the jurors is individually called upon by the presiding judge and replies, raising his hand: "I swear." B. Procedural applications or objections during trials and entries in the record 21. Where an event likely to infringe the rights of one of the parties occurs during the trial, the party concerned may ask the Assize Court - composed in this instance of only the judges - to "take formal note" of it. This is the party ’ s only means of having it recorded. The Court of Cassation cannot entertain complaints that have been raised if no application was made to the Assize Court to take formal note of them and they were not entered in the record of the trial (Court of Cassation, Criminal Division, 23 December 1899, Bulletin criminel (Bull. crim.) no. 380; 24 July 1913, Bull. crim. no. 365; 12 May 1921, Bull. crim. no. 211; 31 January 1946, Bull. crim. no. 40; 5 May 1955, Bull. crim. no. 28; 21 November 1973, Bull. crim. no. 427; 22 April 19 77, Dalloz-Sirey 1978, p. 28) The Assize Court may refuse to take formal note of events that are alleged to have occurred outside the hearing. It also has an unfettered discretion to decide whether evidence should be taken to verify them (Court of Cassation, Criminal Division, 16 March 1901, Bull. crim. no. 85; 16 January 1903, Bull. crim. no. 23; 5 August 1909, Bull. crim. no. 422; 29 February 1984, Albarracin; 8 July 1985, Garbidjian ). 22. Interlocutory decisions on such matters can be challenged by means of an appeal on points of law, but only at the same time as the judgment on the merits (Article 316 CCP). C. Transfer of a case on the ground of reasonable suspicion of bias (suspicion légitime ) 23. Article 662 CCP provides: "In matters within the jurisdiction of the Assize Court, the Criminal Court or the police court, the Criminal Division of the Court of Cassation may remove a case from any investigating court or judge or any court of trial and transfer it to another court or judge of the same rank, either where the court that would normally have jurisdiction cannot be composed as required by law or where justice is otherwise prevented from taking its course or on the ground of reasonable suspicion of bias. An application for transfer may be made either by Principal State Counsel attached to the Court of Cassation or by the prosecutor attached to the court dealing with the case, or by the person charged, or by a civil party to the proceedings. ... The lodging of an application shall not have any suspensive effect unless the Court of Cassation orders otherwise. ..." The Criminal Division has unfettered discretion to determine whether such a ground is made out on the alleged facts (Court of Cassation, Criminal Division, 26 November 1931, Bull. crim. no. 272; 9 May 1932, Bull. crim. no. 126; 22 March 1933, Bull. crim. no. 61; 17 November 1964, Bull. crim. no. 301). An applicant is required to establish the existence of circumstances sufficiently weighty to justify serious doubts as to the impartiality of the court in question. This procedure can be used only in respect of a whole court and not against one or more members of a collegiate court (Court of Cassation, Criminal Division, 25 November 1976, Bull. crim. no. 343; Revue de science criminelle et de droit pénal comparé 1977, p. 603, comments by J. Robert). PROCEEDINGS BEFORE THE COMMISSION 24. Mr Remli applied to the Commission on 16 May 1990. He complained that he had not had a hearing by an impartial tribunal and that he had also suffered discrimination on the ground of racial origin, contrary to Article 6 para. 1 and Article 14 (art. 6-1, art. 14) of the Convention. He further alleged that he had not had an effective remedy before a national authority as required by Article 13 (art. 13) of the Convention. 25. On 1 April 1994 the Commission adjourned its examination of the complaints based on Article 6 para. 1 (art. 6-1) taken alone and together with Article 14 (art. 6-1+14) and declared the remainder of the application (no. 16839/90) inadmissible. On 12 April it declared the first complaint admissible and decided that it was unnecessary to express an opinion separately on the second complaint, as this was bound up with the issue of the court ’ s impartiality. In its report of 30 November 1994 (Article 31) (art. 31), it expressed the opinion by seven votes to four that there had been a violation of Article 6 para. 1 (art. 6-1). The full text of the Commission ’ s opinion and of the two dissenting opinions contained in the report is reproduced as an annex to this judgment [3]. FINAL SUBMISSIONS TO THE COURT 26. In their memorial the Government asked the Court to "dismiss Mr Remli ’ s application". 27. The applicant requested the Court to "find that France has breached Articles 6 para. 1 and 14 (art. 6-1, art. 14) of the Convention; and award just satisfaction under Article 50 (art. 50) ..." AS TO THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 (art. 6) OF THE CONVENTION 28. The applicant maintained that he had been the victim of a breach of Article 6 para. 1 (art. 6-1) of the Convention, which provides: "In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing ... by an independent and impartial tribunal ..." A. The Government ’ s preliminary objections 29. As they had done before the Commission, the Government raised two objections to admissibility. 1. Non- exhaustion of domestic remedies (a) As to the complaint based on Article 6 (art. 6) of the Convention 30. The Government argued that the domestic remedies had not been exhausted. Not only had Mr Remli ’ s application to the Assize Court for formal note to be taken been inappropriate, but the applicant had also failed either to ask for evidence to be taken or to lodge an application for transfer of the trial on the ground of reasonable suspicion of bias. The Rhône Assize Court could not take formal note of events which, even supposing their occurrence was established, had taken place outside the courtroom. Furthermore, by not applying for evidence to be taken as to the truth of the alleged matters, the applicant had deprived himself of a remedy that could have redressed the supposed breach. If the taking of evidence had made it possible to establish the alleged facts, the Assize Court could have replaced the juror in question by one of the additional jurors. If the Assize Court had refused to allow the application for evidence to be taken, Mr Remli could have applied to the Criminal Division of the Court of Cassation for a transfer of the trial on the ground of reasonable suspicion of bias in order to secure the immediate removal of the case from the Rhône Assize Court. Such a procedure could be used only in respect of a whole court and not against one or more members of a collegiate court who were suspected of bias. However, the Government continued, seeing that the juror in question had not been challenged, the impartiality of the Assize Court as a whole might be affected and the procedure of an application for transfer of the trial on the ground of reasonable suspicion of bias was therefore the appropriate one. Under Article 662 of the Code of Criminal Procedure, the Court of Cassation could have ordered that the application should have a suspensive effect. 31. In the applicant ’ s submission, the application for formal note to be taken was the remedy envisaged in Article 26 (art. 26) of the Convention, since it alone afforded the possibility of having the facts in issue recorded. It had been the Assize Court ’ s duty to order evidence to be taken of its own motion if it considered the evidence filed by Mr Remli - Mrs M. ’ s written statements - to be insufficient. Nor could an application for evidence to be taken be regarded as a remedy for the purposes of Article 26 (art. 26). As to making an application to have the trial transferred on the ground of reasonable suspicion of bias, this was a wholly exceptional procedure and could only be used in respect of a court as a whole and not in respect of a single juror. Since such an application would not have had a suspensive effect, the Assize Court would anyway have continued to sit, so the harm would have been done. 32. The Commission agreed with the applicant ’ s submissions. 33. The Court reiterates that the purpose of Article 26 (art. 26) is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Convention institutions (see, for example, the Hentrich v. France judgment of 22 September 1994, Series A no. 296-A, p. 18, para. 33). Thus the complaint to be submitted to the Commission must first have been made to the appropriate national courts, at least in substance, in accordance with the formal requirements of domestic law and within the prescribed time-limits. Nevertheless, the only remedies that must be exhausted are those that are effective and capable of redressing the alleged violation (see, among other authorities, the Pressos Compania S.A. and Others v. Belgium judgment of 20 November 1995, Series A no. 332, p. 19, para. 27). 34. In the instant case the application for formal note to be taken was a prerequisite of any subsequent appeal on points of law, since the Court of Cassation cannot entertain complaints that have not been formally noted by the Assize Court and have not been entered in the record of the trial. Admittedly, the Assize Court can refuse to take formal note of events that have occurred outside the hearing, but it has the power to order evidence to be taken for the purpose of verifying them (see paragraph 21 above). That being so, and regard being had to the fact that by submitting Mrs M. ’ s written statement to the Assize Court, the applicant put that court in a position to exercise its power to order that evidence should be taken, the Court considers that the application for formal note to be taken was an effective remedy. An application for transfer of a trial on the ground of reasonable suspicion of bias can only be made in respect of a whole court. Where the impartiality of a given member of a court is in issue, only the procedure of a challenge is available. In the case of members of the jury, however, a challenge can only be made when the names of the jurors are being drawn by lot, so that it was too late to make one in the circumstances of the instant case. The objection must therefore fail. (b) As to the complaint based on Article 14 of the Convention taken together with Article 6 (art. 14+6) 35. The Government maintained that in the national courts Mr Remli had not complained of discrimination on the ground of race or national origin. The applicant was thus relying on Article 14 (art. 14) for the first time before the Convention institutions. 36. In the applicant ’ s submission, a breach of Article 14 (art. 14) could be alleged before the Convention institutions in so far as it was a consequence of the Court of Cassation ’ s judgment itself. 37. In its decision on the admissibility of the application the Commission considered that this complaint was bound up with the one based on Article 6 para. 1 (art. 6-1) and therefore did not require separate examination. 38. Having regard to the purpose of the requirement that domestic remedies must be exhausted (see paragraph 33 above), the Court allows the Government ’ s objection as to the admissibility of the complaint based on Article 14 taken together with Article 6 (art. 14+6). 2. Application out of time 39. The Government also argued, in the alternative, that the application had been out of time. The judgment of 22 November 1989, in which the appeal on points of law against the refusal to take formal note of events that had occurred outside the courtroom had been dismissed, was not the final decision from whose date the six-month period for applying to the Commission began to run. The Court of Cassation, which ruled on issues of law and not of fact, considered that the Assize Court had unfettered discretion to decide whether or not to take formal note of events that occurred out of its presence. The relevant period had accordingly begun to run on 14 April 1989, when the Assize Court had delivered its interlocutory judgment, and so the applicant had not complied with the time-limit. 40. Mr Remli disputed that submission. An appeal on points of law against interlocutory judgments of the Assize Court was expressly provided in Article 316, last paragraph, of the Code of Criminal Procedure. 41. In its decision on the admissibility of the application the Commission noted the provisions of Article 316 of the Code of Criminal Procedure. It went on to point out that the Court of Cassation had held that it had jurisdiction to rule on possible breaches of the Convention, which was directly applicable in French law; the Government had not shown that the grounds based on the Convention that had been argued in the Court of Cassation were contrary to case-law so settled that the appeal on points of law could not be considered an effective remedy. The Delegate of the Commission also pointed out that the ground of appeal based on a breach of Article 6 (art. 6) of the Convention had not been declared inadmissible by the Court of Cassation. In the Commission ’ s opinion, the relevant date for the purposes of Article 26 (art. 26) was therefore that of the Court of Cassation ’ s judgment, 22 November 1989. 42. The Court reiterates that an appeal to the Court of Cassation is one of the remedies that should in principle be exhausted in order to comply with Article 26 (art. 26). Even supposing that it was probably bound to fail in this specific case, the filing of the appeal was thus not a futile step. It consequently had the effect at the very least of postponing the beginning of the six-month period (see, as the most recent authority, the A. v. France judgment of 23 November 1993, Series A no. 277-B, pp. 47-48, para. 30). The objection that the application was out of time must therefore be dismissed. B. Merits of the complaint 43. In Mr Remli ’ s submission, if a court trying people of foreign nationality or origin included a juror who, before the hearing, had publicly expressed racist sentiments, it lacked impartiality. The juror in question should not have sat in a case that he was unable to assess with complete objectivity. The Rhône Assize Court, however, had dismissed his application for formal note to be taken of the remark in issue, although it had had jurisdiction to allow it. Mrs M. ’ s written statement had been clear, detailed and free from ambiguity or inconsistency, had accurately reported the remark and had identified the person who had uttered it. Where, as in the instant case, the alleged facts were such as to cast very serious doubt on the impartiality of one of the jurors, the Assize Court was, the applicant submitted, under an obligation to take formal note of it, failing which it would be denying the accused the opportunity of being tried by an impartial tribunal. In short, the Assize Court and the Court of Cassation should have reacted. 44. The Government conceded that a court containing a juror who had declared himself to be a racist could not be regarded as impartial. Nevertheless, it had to be established with certainty that such racist opinions were really held and evidence had to be brought to show that they could have influenced the conviction. In the instant case, however, Mrs M. ’ s statement was not, the Government continued, sufficiently reliable or supported to amount to evidence capable of objectively casting doubt on the jury ’ s impartiality. For one thing, it conflicted with what the applicant ’ s lawyers had said and, for another, the sentence "What ’ s more, I ’ m a racist" was just as likely to have been uttered as a joke or in connection with another case or solely in relation to the applicant ’ s co-defendant, an Algerian national, and not to Mr Remli himself, who had French nationality. It was therefore not possible to consider that it had been established that there was a doubt as to the impartiality of a member of the jury that had tried the applicant. Furthermore, a court could not be expected to verify all the remarks that a juror might make before being drawn by lot. In the instant case, the juror in question had not been challenged. Thereafter it was the impartiality of the jury itself that was relevant. In the instant case, however, it was difficult to describe the jury as a whole as biased, especially as under the Code of Criminal Procedure any decision unfavourable to an accused had to be taken by a majority of at least eight. 45. In the Commission ’ s opinion, the statement drawn up by Mrs M. contained no inconsistencies and made it possible to identify with accuracy the person who had made the remark. As the Assize Court had not verified the alleged facts, the applicant was reasonably entitled to call the juror ’ s impartiality into question, and his fears in this respect were objectively justified. There had therefore been a breach of Article 6 para. 1 (art. 6-1) of the Convention. 46. The Court refers to the principles laid down in its case-law concerning the independence and impartiality of tribunals, which apply to jurors as they do to professional and lay judges (see the Holm v. Sweden judgment of 25 November 1993, Series A no. 279-A, p. 14, para. 30). When it is being decided whether in a given case there is a legitimate reason to fear that a particular judge lacks impartiality, the standpoint of the accused is important but not decisive. What is decisive is whether this fear can be held to be objectively justified (see, among other authorities, the Saraiva de Carvalho v. Portugal judgment of 22 April 1994, Series A no. 286-B, p. 38, para. 35, and the Padovani v. Italy judgment of 26 February 1993, Series A no. 257-B, p. 20, para. 27). 47. The Court notes that in the instant case the Rhône Assize Court had to try Mr Remli and his co-defendant, both of them of North African origin, and that a third person, Mrs M., certified in writing that she had heard one of the jurors say : "What ’ s more, I ’ m a racist." It is not for the Court to rule on the evidential value of Mrs M. ’ s written statement or on whether the racist remark attributed to the juror in question was actually made. It notes merely that Mrs M. ’ s statement - which contained a serious allegation in the context of the case - was filed with the Assize Court by the applicant ’ s lawyers, who asked the court to take formal note of it. The court dismissed their application without even examining the evidence submitted to it, on the purely formal ground that it was "not able to take formal note of events alleged to have occurred out of its presence". Nor did it order that evidence should be taken to verify what had been reported - and, if it was established, take formal note of it as requested by the defence - although it could have done so. Consequently, the applicant was unable either to have the juror in question replaced by one of the additional jurors or to rely on the fact in issue in support of his appeal on points of law (see paragraph 21 above). Nor could he challenge the juror, since the jury had been finally empanelled (see paragraph 17 above) and no appeal lay against the Assize Court ’ s judgment other than on points of law (see paragraph 16 above). 48. Like the Commission, the Court considers that Article 6 para. 1 (art. 6-1) of the Convention imposes an obligation on every national court to check whether, as constituted, it is "an impartial tribunal" within the meaning of that provision (art. 6-1) where, as in the instant case, this is disputed on a ground that does not immediately appear to be manifestly devoid of merit. In the instant case, however, the Rhône Assize Court did not make any such check, thereby depriving Mr Remli of the possibility of remedying, if it proved necessary, a situation contrary to the requirements of the Convention. This finding, regard being had to the confidence which the courts must inspire in those subject to their jurisdiction, suffices for the Court to hold that there has been a breach of Article 6 para. 1 (art. 6-1). II. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION 49. Under Article 5 0 (art. 50) of the Convention, "If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party." A.Non -pecuniary damage 50. Mr Remli claimed 1,000,000 French francs (FRF) in respect of non-pecuniary damage. 51. The Delegate of the Commission invited the Court to assess that damage on an equitable basis. 52. Like the Government, the Court considers that the finding of a breach of Article 6 para. 1 (art. 6-1) constitutes in itself sufficient just satisfaction. B. Retrial or reduction of sentence 53. The applicant further sought a retrial by an assize court affording all the guarantees of impartiality or, failing that, a reduction of his life sentence to fifteen years ’ imprisonment. 54. Like the Government and the Delegate of the Commission, the Court points out that Article 50 (art. 50) does not give it jurisdiction to make such an order against a Contracting State (see, for example, the Saïdi v. France judgment of 20 September 1993, Series A no. 261-C, p. 57, para. 47). C. Costs and expenses 55. Mr Remli sought FRF 166,896 (including value-added tax - VAT) for costs and expenses, that is to say FRF 118,600 for those incurred in the national courts and FRF 48,296 for those incurred before the Convention institutions. 56. The Government maintained that the applicant had not provided vouchers for these expenses, so that the claim should be disallowed or, failing that, the question of the application of Article 50 (art. 50) should be reserved. They added that at all events, costs and expenses incurred in the national courts should not be reimbursed. 57. The Delegate of the Commission considered that the reimbursement of costs and expenses had to be limited to those incurred in the national and international legal systems in order to remedy the alleged breach. 58. The Court notes that the applicant gave particulars of his claims in his memorial and his supplementary observations and, making its assessment on an equitable basis, awards him FRF 60,000, including VAT. D. Default interest 59. According to the information available to the Court, the statutory rate of interest applicable in France at the date of adoption of the present judgment is 6.65% per annum. | The Court held that there had been a violation of Article 6 § 1 of the Convention. It noted in particular that Article 6 § 1 imposed an obligation on every national court to check whether, as constituted, it was “an impartial tribunal” where, as in the applicant’s case, this was disputed on a ground that did not immediately appear to be manifestly devoid of merit. In the instant case, however, the Assize Court had not made any such check, thereby depriving the applicant of the possibility of remedying, if it proved necessary, a situation contrary to the requirements of the Convention. This finding, regard being had to the confidence which the courts must inspire in those subject to their jurisdiction, sufficed for the Court to hold that there has been a breach of Article 6 § 1. |
281 | (Suspected) terrorists | II. RELEVANT DOMESTIC LAW 20. Article 117 of the Code of Criminal Procedure provides, inter alia : “ As long as the accused is in detention on remand, he may at any time apply for a court hearing to determine whether the arrest warrant is to be revoked or whether its execution is to be suspended in accordance with Article 116. ” 21. Article 230 of the Code of Criminal Procedure provides, inter alia : “No trial shall be held in respect of a person who is absent.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 22. The applicant complained that his detention on remand had lasted an excessively long time. He relied on Article 5 § 3 of the Convention, which provides : “Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” A. Admissibility 1. Loss of standing as a victim 23. The Government contended that the applicant could no longer claim to be a victim because the Regional Court had explicitly acknowledged that his detention on remand had lasted an unusually long time and had taken this fact into account when determining his sentence. 24. The Court reiterates that a decision or measure favourable to the applicant does not in principle deprive the individual concerned of his status of victim within the meaning of Article 34 of the Convention (see Labita v. Italy [GC], no. 26772/95, § 142, ECHR 2000 ‑ IV; Amuur v. France, 25 June 1996, § 36, Reports of Judgments and Decisions 1996-III; and Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999 - VI). However, as the Convention leaves to each Contracting State, in the first place, the task of securing the enjoyment of the rights and freedoms it enshrines (see Cordier v. Germany ( dec .), no. 71741/01, 19 January 2006 ), this general rule is subject to an exception when the national authorities have acknowledged either expressly or in substance, and then afforded redress for, the breach of the Convention (see Eckle v. Germany, 15 July 1982, § 66, Series A no. 51; Jansen v. Germany ( dec .), no. 44186/98, 12 October 2000; and Beck v. Norway, no. 26390/95, § 27, 26 June 2001). In cases concerning the failure to observe the reasonable-time requirement guaranteed by Article 6 § 1 of the Convention, the national authorities can afford adequate redress in particular by reducing the applicant ’ s sentence in an express and measurable manner (see Eckle, cited above, § 66, and Beck, cited above, § 27). The Court has held that such a reduction of the sentence is also capable of affording adequate redress for a violation of Article 5 § 3 in cases in which the national authorities had failed to hear within a reasonable time the case of an applicant held in detention on remand (see Dzelili v. Germany, no. 65745/01, § 83, 10 November 2005 ). 25. Applying these principles to the present case, the Court observes that, although the Convention forms an integral part of the law of the Federal Republic of Germany (see Eckle, cited above, § 67) and there was accordingly nothing to prevent the Regional Court from holding, if appropriate, that the length of the applicant ’ s detention on remand had been in breach of the Convention, either expressly or in substance, the latter court merely conceded that the impugned detention had lasted an “unusually long” time (see paragraph 16 above ). Furthermore, the Court is not satisfied that the applicant was afforded adequate redress for the alleged violation because the Regional Court failed to specify to what extent the applicant ’ s sentence had been reduced on account of the length of his detention on remand (see Dzelili, cited above, § 85). 26. The Court therefore considers that the Regional Court ’ s statement concerning the unusual length of the applicant ’ s detention did not deprive the latter of his status of victim within the meaning of Article 34 of the Convention. 2. Exhaustion of domestic remedies 27. The Government maintained that the applicant had exhausted domestic remedies only in respect of his detention until 24 May 2000, the date of the final decision by a domestic court concerning his request for release. They pointed out that, once a certain period had elapsed after that decision, the applicant could have lodged a further application for release. As he had not availed himself of the opportunity to institute fresh proceedings before the domestic courts after the Federal Constitutional Court ’ s decision of 24 May 2000, he had failed to exhaust domestic remedies in respect of his detention after that date. 28. The applicant did not submit any observations in reply within the time-limit fixed by the Court. 29. The Court refers to its case-law to the effect that an applicant should not usually be required to use at very short intervals a remedy which by its nature might be repeated an indefinite number of times (see Rieme v. Sweden, 22 April 1992, § 50, Series A no. 226 ‑ B, and Guzzardi v. Italy, 6 November 1980, § 80, Series A no. 39 ). The re-examination of a case may, however, be appropriate where new facts have emerged which could furnish a separate basis for a fresh decision. In cases of continued detention for instance, the prolongation of the detention in itself may under certain circumstances justify a re-examination of the question of release (see Lynas v. Switzerland, no. 7317/75, Commission decision of 6 October 1976, Decisions and Reports 6, p. 141, at p. 167 ). 30. In the present case, the applicant had been held in detention on remand for exactly four years when the Federal Constitutional Court refused to examine his constitutional complaint. Under German law, the applicant could have lodged a further application for release at any time after that decision (see paragraph 20 above). However, having regard to the fact that on 13 November 2001 the Regional Court convicted the applicant and ordered his continued detention because of the persisting danger of his absconding, it is rather doubtful whether such a request in the period of time preceding the latter decision would have had any prospect of success. In any event, given that the applicant ’ s detention on remand within the meaning of Article 5 § 3 ended with his conviction by the Regional Court on 13 November 2001 (see Labita, cited above, § 147), that is, eighteen months after the decision of the Federal Constitutional Court, the Court is not satisfied that the institution of fresh proceedings would have shortened the length of his detention on remand to a significant extent. 31. The Court therefore holds that the Government ’ s preliminary objection concerning the exhaustion of domestic remedies must be dismissed. 32. The Court further notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. Period to be taken into consideration 33. The period to be taken into consideration under Article 5 § 3 started with the applicant ’ s transfer to Germany on 24 May 1996 (see Nedyalkov v. Bulgaria, no. 44241/98, § 61, 3 November 2005, and De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, § 71, Series A no. 12) and ended on 13 November 2001 with his conviction by the Berlin Regional Court (see paragraph 30 above). The applicant ’ s detention on remand thus lasted five years and almost six months. 2. Reasonableness of the length of detention 34. The applicant submitted that the length of his detention on remand could not be regarded as justified for the purposes of Article 5 § 3 of the Convention. The Government contested this view. 35. The Court reiterates that the issue of whether a period of detention is reasonable cannot be assessed in abstracto. Whether it is reasonable for an accused to remain in detention must be assessed in each case according to its special features and on the basis of the reasons given in the domestic decisions and of the well-documented facts mentioned by the applicant in his applications for release. Continued detention can be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty (see W. v. Switzerland, 26 January 1993, § 30, Series A no. 254-A, and Labita, cited above, § 152). 36. The persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices. In such cases, the Court must establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds were “relevant” and “sufficient”, the Court must also ascertain whether the competent national authorities displayed “special diligence” in the conduct of the proceedings (see I.A. v. France, 23 September 1998, § 102, Reports 1998-VII, and Labita, cited above, § 153). ( a ) General approach 37. The Court notes at the outset that the present case relates to large - scale offences committed in the context of international terrorism. States combating this form of terrorism may be faced with extraordinary difficulties. The Court, whose role it is to examine measures taken in this regard by Contracting States as to their conformity with the Convention, is not oblivious of these difficulties. It sees no reason to depart from the general approach it has adopted in previous cases of a similar nature (see Klass and Others v. Germany, 6 September 1978, §§ 48-49 and 59, Series A no. 28; Brogan and Others v. the United Kingdom, 29 November 1988, § 48, Series A no. 145 ‑ B; Murray v. the United Kingdom, 28 October 1994, § 47, Series A no. 300 ‑ A; Pantano v. Italy, no. 60851/00, § 70, 6 November 2003; and Van der Tang v. Spain, 13 July 1995, § 75, Series A no. 321 ). However, in the context of the issues arising in the present case, the Court considers that the specific nature of these offences and, in particular, the difficulties intrinsic to the investigation of offences committed by criminal associations acting on a global scale call for special consideration. It will bear this context in mind when assessing the reasonableness of the length of the applicant ’ s continued detention, in particular the grounds for his detention and the conduct of the proceedings in the light of the complexity of the case. ( b ) Grounds for continued detention 38. As regards the grounds for the applicant ’ s continued detention, the Court notes that the competent judicial authorities advanced three principal reasons for not suspending the arrest warrant, namely that the applicant remained under a strong suspicion of having committed the crimes of which he was accused, the serious nature of these offences and the fact that the applicant would be likely to abscond if released, given the sentence which he risked incurring if found guilty as charged. 39. The Court accepts that the reasonable suspicion that the applicant committed the offences with which he had been charged, being based on cogent evidence, persisted throughout the trial leading to his conviction. It also agrees that the alleged offences were of a serious nature. 40. As regards the danger of the applicant ’ s absconding, the Court observes that the possibility of a severe sentence alone is not sufficient after a certain lapse of time to justify continued detention based on the danger of flight (see Wemhoff v. Germany, 27 June 1968, § 14, Series A no. 7, and B. v. Austria, 28 March 1990, § 44, Series A no. 175). In the present case the national courts also relied on other relevant circumstances, including the fact that the applicant had been extradited from Lebanon to Germany for the purposes of criminal proceedings in the context of international terrorism. He had neither a fixed dwelling nor social ties in Germany which might have prevented him from absconding if released. Accordingly, the Court is satisfied that a substantial risk of the applicant ’ s absconding persisted throughout his detention and accepts the domestic courts ’ finding that no other measures to secure his presence would have been appropriate. It further observes that under German legislation no trial can be held in respect of an accused who has absconded and whose whereabouts are unknown (see paragraph 21 above ). 41. Consequently, the Court concludes that there were relevant and sufficient grounds for the applicant ’ s continued detention. ( c ) Conduct of the proceedings 42. It remains to be ascertained whether the judicial authorities displayed “special diligence” in the conduct of the proceedings. 43. The Court takes the view that the applicant ’ s case was extremely complex. It concerned serious charges against him and four co-defendants and necessitated the hearing of 169 witnesses. The case had a terrorist and international background and, moreover, involved 106 joint plaintiffs. 44. As to the conduct of the proceedings by the judicial authorities, the parties agreed that no delay in the proceedings had been attributable to the German courts and authorities, which had displayed the necessary diligence throughout the proceedings. The Court notes that, following the applicant ’ s indictment on 30 January 1997, his trial in the Berlin Regional Court began on 5 September 1997. Hearings took place on 281 separate days with on average two hearings per week until the Regional Court ’ s decision of 13 November 2001. The hearings were regularly attended by five defendants, their 15 lawyers, 106 joint plaintiffs and their 29 lawyers. Accordingly, having regard to the difficulties intrinsic to the prosecution of offences committed in the context of international terrorism, the competent judicial authorities cannot be said to have displayed a lack of special diligence in handling the applicant ’ s case. 45. In the light of these various factors, the Court finds that the competent national court acted with the necessary special diligence in conducting the proceedings in the applicant ’ s case. ( d ) Overall assessment 46. The Court has found in previous cases that detention on remand exceeding five years constituted a violation of Article 5 § 3 of the Convention (see Korchuganova v. Russia, no. 75039/01, § 77, 8 June 2006; I.A. v. France, cited above, § 112; and Khudoyorov v. Russia, no. 6847/02, § 189, 8 November 2005 ). 47. The present case involved a particularly complex investigation and trial concerning serious offences of international terrorism which caused the death of three victims and serious suffering to more than a hundred. Following his extradition from Lebanon in 1996, the sole reason for the applicant ’ s presence in Germany was to stand trial for these offences. 48. In these exceptional circumstances, the Court concludes that the length of the applicant ’ s detention can still be regarded as reasonable. There has accordingly been no violation of Article 5 § 3 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE CONVENTION 49. The applicant complained that the length of his detention on remand violated the presumption of innocence. He relied on Article 6 § 2 of the Convention, which provides : “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.” 50. The Court observes that this complaint is based on the same facts as the complaint under Article 5 § 3 and must be likewise declared admissible (see paragraph 32 above). 51. Given that the Court takes into account the presumption of innocence when assessing whether the length of a period of pre-trial detention was justified (see Kudła v. Poland [GC], no. 30210/96, § 110, ECHR 2000 ‑ XI, and Labita, cited above, § 152), no separate question arises under Article 6 § 2. There is accordingly no need to examine the complaint regarding the length of the applicant ’ s detention on remand under this Article as well. III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 52. In his first letter to the Court, the applicant submitted that the length of the criminal proceedings against him had not been proportionate. However, he also observed that the German authorities could not be held responsible for the unusual length of the impugned proceedings. In his subsequent submissions, the applicant pointed out that the national authorities had observed their obligation to proceed speedily throughout the proceedings and that the length of the proceedings was rather due to the complexity of the case and the number of persons involved in the proceedings. 53. The Government argued that the applicant had obviously not intended to raise the length-of-proceedings complaint. 54. The Court notes that the applicant ’ s submissions on this point are disputable as he pointed out that the German authorities and courts could not be held responsible for the unusual length of the proceedings. Furthermore, he failed to submit any clarification in response to the Government ’ s allegation that he had not complained of the length of the proceedings. The Court therefore finds that the applicant failed to substantiate his length-of-proceedings complaint with sufficient clarity. 55. Even assuming that domestic remedies have been exhausted, this part of the application is accordingly manifestly ill-founded and must be rejected as inadmissible pursuant to Article 35 of the Convention. | The Court held that there had been no violation of Article 5 § 3 (right to be tried within reasonable time) of the Convention, finding that, in the exceptional circumstances of the present case, the length of the applicant’s detention could be regarded as reasonable. The Court observed in particular that the case had concerned a particularly complex investigation and trial into large-scale offences which had been committed in the context of international terrorism. It also noted that States combating terrorism may be faced with extraordinary difficulties. The Court therefore accepted the reasons given by the German courts for the applicant’s continued detention and took the view that the competent judicial authorities could not be said to have displayed a lack of special diligence in handling his case. |
606 | Display of religious symbols in State-school classrooms | II. DEVELOPMENT OF THE RELEVANT DOMESTIC LAW AND PRACTICE 17. The obligation to hang crucifixes in primary school classrooms was laid down in Article 140 of royal decree no. 4336 of 15 September 1860 of the Kingdom of Piedmont-Sardinia, promulgated in accordance with Law no. 3725 of 13 November 1859, which provided: “each school must without fail be equipped with ... a crucifix ” (Article 140). In 1861, the year which saw the birth of the Italian State, the 1848 Statute of the Kingdom of Piedmont-Sardinia became the Constitution of the Kingdom of Italy; it provided in particular: “the Roman Catholic Apostolic religion shall be the only religion of the State [ and ] other existing creeds shall be tolerated in conformity with the law”. 18. The capture of Rome by the Italian army on 20 September 1870, following which the city was annexed and proclaimed capital of the new Kingdom of Italy, caused a crisis in relations between the State and the Catholic Church. By Law no. 214 of 13 May 1871 the Italian State unilaterally regulated relations with the Church, granting the Pope a number of privileges for the orderly conduct of religious activity. According to the applicants, the display of crucifixes in schools fell little by little into disuse. 19. During the fascist period the State took a series of measures aimed at ensuring compliance with the obligation to display the crucifix in classrooms. For instance, on 22 November 1922 the Ministry of Education sent out a circular (no. 68) with the following wording: “ ... in the last few years in many of the Kingdom's primary schools the image of Christ and the portrait of the King have been removed. That is a manifest and intolerable breach of the regulations and especially an attack on the dominant religion of the State and the unity of the Nation. We therefore order all municipal administrative authorities in the Kingdom to restore, to those schools which lack them, the two sacred symbols of the faith and the consciousness of nationhood.” On 30 April 1924 royal decree no. 965 of 30 April 1924 was adopted. This decree laid down the internal regulations governing middle schools ( ordinamento interno delle giunte e dei regi istituti di istruzione media ). Article 118 provided : “Each school must have the national flag and each classroom must have a crucifix and a portrait of the King”. Article 119 of royal decree no. 1297 of 26 April 1928, approving the general regulations governing the provision of primary education ( approvazione del regolamento generale sui servizi dell'istruzione elementare ), provides that the crucifix must form part of the “necessary equipment and supplies in school classrooms”. 20. The Lateran Pacts, signed on 11 February 1929, marked the “ Conciliation” of the Italian State and the Catholic Church. Catholicism was confirmed as Italy's official religion, Article 1 of the Conciliation Treaty being worded as follows: “ Italy recognizes and reaffirms the principle established in the first Article of the Italian Constitution dated March 4 1848, according to which the Roman Catholic Apostolic religion is the only State religion.” 21. In 1948 Italy adopted its republican Constitution, Article 7 of which provides: “The State and the Catholic Church, each in its own order, shall be independent and sovereign ... their relations shall be regulated by the Lateran Pacts [and] amendments to the Pacts accepted by both parties shall not require proceedings to revise the Constitution.” Article 8 provides: “All religious creeds shall be equally free before the law ... religious creeds other than Catholicism shall have the right to organise in accordance with their own statutes, in so far as these are not incompatible with the Italian legal order [and] their relations with the State shall be determined by the law on the basis of agreements with their respective representatives”. 22. The Protocol to the new concordat, of 18 February 1984, ratified by Law no. 121 of 25 March 1985, states that the principle laid down in the Lateran Pacts, that the Catholic religion is the only State religion, is no longer in force. 23. In a judgment of 12 April 1989 (no. 203), rendered in a case which raised the question of the non-compulsory nature of Catholic religious instruction in State schools, the Constitutional Court held that the principle of secularism was derived from the Constitution, ruling that it implied not that the State should be indifferent to religions but that it should guarantee the protection of the freedom of religion in a context of confessional and cultural pluralism. Dealing in the present case with an application concerning the conformity of the presence of crucifixes in State - school classrooms with the principle of secularism, the Constitutional Court ruled that it did not have jurisdiction, since the texts which required the presence of the crucifix were only regulations ( decision of 15 December 2004, no. 389; see paragraph 14 above ). When called upon to examine this question, the Consiglio di Stato held that, regard being had to the meaning that should be attached to it, the presence of the crucifix in State- school classrooms was compatible with the principle of secularism ( judgment of 13 February 2006, no. 556; see paragraph 16 above). In a different case, the Court of Cassation had taken the contrary view to that of the Consiglio di Stato in the context of a prosecution for refusing to serve as a scrutineer in a polling station on the ground that a crucifix was displayed there. In its judgment of 1 March 2000 (no. 439), it held that the presence of the crucifix infringed the principles of secularism and the impartiality of the State, and the principle of the freedom of conscience of those who did not accept any allegiance to that symbol. It expressly rejected the argument that displaying the crucifix was justified in that it was the symbol of “an entire civilisation or the collective ethical conscience” and – here the Court of Cassation cited the terms used by the Consiglio di Stato in an opinion of 27 April 1988 (no. 63) – also symbolised “a universal value independent of any specific religious creed”. 24. On 3 October 2002 the Minister of Education, Universities and Research issued the following instruction (no. 2666): “ ... The Minister ... Considering that the presence of crucifixes in classrooms is founded on the provisions in force, that it offends neither against religious pluralism nor against the objectives of multicultural education of Italian schools and that it cannot be considered a limitation of the freedom of conscience guaranteed by the Constitution, since it does not refer to a specific creed but constitutes only an expression of Christian civilisation and culture, and that it therefore forms part of the universal heritage of mankind; Having assessed, with respect for different allegiances, convictions and beliefs, the desirability of requiring all schools, within the limits of their own autonomy and by decision of their competent collegiate organs, to set aside part of their premises to be used, without any obligation and without any fixed hours being appointed, for contemplation and meditation by those members of the school community who so wish; Issues the following instruction : The Ministry's competent service ... shall take the necessary measures to see to it that : 1) school governors ensure the presence of crucifixes in classrooms; 2) all schools, within the limits of their own autonomy, and by decision of the members of their collegiate organs, set aside part of their premises to be used, without any obligation and without any fixed hours being appointed, for contemplation and meditation by those members of the school community who so wish ... ”. 25. Articles 19, 33 and 34 of the Constitution are worded as follows: Article 19 “Everyone is entitled to freely profess their religious beliefs in any form, individually or with others, and to promote them and celebrate rites in public or in private, provided that they are not offensive to public morality.” Article 33 “The Republic guarantees the freedom of the arts and sciences, which may be freely taught. The Republic lays down general rules for education and establishes State schools of all branches and grades. ... ” Article 34 “Schools are open to everyone. Elementary education, given for at least eight years, is compulsory and free. ... ” III. OVERVIEW OF LAW AND PRACTICE IN THE MEMBER STATES OF THE COUNCIL OF EUROPE WITH REGARD TO THE PRESENCE OF RELIGIOUS SYMBOLS IN STATE SCHOOLS 26. In the great majority of member States of the Council of Europe the question of the presence of religious symbols in State schools is not governed by any specific regulations. 27. The presence of religious symbols in State schools is expressly forbidden only in a small number of member States: the former Yugoslav Republic of Macedonia, France (except in Alsace and the département of Moselle) and Georgia. It is only expressly prescribed – in addition to Italy – in a few member States, namely: Austria, certain administrative regions of Germany ( Länder ) and Switzerland ( communes ), and Poland. Nevertheless, such symbols are found in the State schools of some member States where the question is not specifically regulated, such as Spain, Greece, Ireland, Malta, San Marino and Romania. 28. The question has been brought before the supreme courts of a number of member States. In Switzerland the Federal Court has held a communal ordinance prescribing the presence of crucifixes in primary school classrooms to be incompatible with the requirements of confessional neutrality enshrined in the Federal Constitution, but without criticising such a presence in other parts of the school premises (26 September 1990; ATF 11 6 1 a 252). In Germany the Federal Constitutional Court has ruled that a similar Bavarian ordinance was contrary to the principle of the State's neutrality and difficult to reconcile with the freedom of religion of children who were not Catholics (16 May 1995; BVerfGE 93,1). The Bavarian parliament then issued a new ordinance maintaining the previous measure, but enabling parents to cite their religious or secular convictions in challenging the presence of crucifixes in the classrooms attended by their children and introducing a mechanism whereby, if necessary, a compromise or a personalised solution could be reached. In Poland the Ombudsman referred to the Constitutional Court an ordinance of 14 April 1992 issued by the Minister of Education prescribing in particular the possibility of displaying crucifixes in State- school classrooms. The Constitutional Court ruled that the measure was compatible with the freedom of conscience and religion and the principle of the separation of Church and State guaranteed by Article 82 of the Constitution, given that it did not make such display compulsory (20 April 1993; no. U 12/32). In Romania the Supreme Court set aside a decision of the National Council for the Prevention of Discrimination of 21 November 2006 recommending to the Ministry of Education that it should regulate the question of the presence of religious symbols in publicly run educational establishments and, in particular, authorise the display of such symbols only during religious studies lessons or in rooms used for religious instruction. The Supreme Court held in particular that the decision to display such symbols in educational establishments should be a matter for the community formed by teachers, pupils and pupils'parents (11 June 2008; no. 2393). In Spain the High Court of Justice of Castile and Leon, ruling in a case brought by an association militating in favour of secular schooling which had unsuccessfully requested the removal of religious symbols from schools, held that the schools concerned should remove them if they received an explicit request from the parents of a pupil (14 December 2009; no. 3250). THE LAW I. ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL No. 1 AND ARTICLE 9 OF THE CONVENTION 29. The applicants complained of the fact that crucifixes were affixed to the wall in the classrooms of the State school attended by the second and third applicants. They argued that this infringed the right to education, guaranteed by Article 2 of Protocol No. 1 in the following terms : “No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.” They also contended that these facts infringed their right to the freedom of thought, conscience and religion enshrined in Article 9 of the Convention, which provides as follows : “1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.” A. The Chamber's judgment 30. In its judgment of 3 November 2009 the Chamber held that there had been a violation of Article 2 of Protocol No. 1 taken together with Article 9 of the Convention. 31. First of all, the Chamber derived from the principles relating to the interpretation of Article 2 of Protocol No. 1 established in the Court's case-law an obligation on the State to refrain from imposing beliefs, even indirectly, in places where persons were dependent on it or in places where they were particularly vulnerable, emphasising that the schooling of children was a particularly sensitive area in that respect. The Court went on to say that among the plurality of meanings the crucifix might have the religious meaning was predominant. It accordingly considered that the compulsory and highly visible presence of crucifixes in classrooms was capable not only of clashing with the secular convictions of the first applicant, whose children attended at that time a State school, but also of being emotionally disturbing for pupils of non-Christian religions or those who professed no religion. On that last point, the Chamber emphasised that the “negative” freedom of religion was not limited to the absence of religious services or religious education : it extended to practices and symbols expressing, in particular or in general, a belief, a religion or atheism. It added that this “negative right” deserved special protection if it was the State which expressed a belief and dissenters were placed in a situation from which they could not extract themselves if not by making disproportionate efforts and sacrifices. According to the Chamber, the State had a duty to uphold confessional neutrality in public education, where school attendance was compulsory regardless of religion, and which had to seek to inculcate in pupils the habit of critical thought. It observed in addition that it could not see how the display in State-school classrooms of a symbol that it was reasonable to associate with the majority religion in Italy could serve the educational pluralism which was essential for the preservation of “democratic society” within the Convention meaning of that term. 32. The Chamber concluded that “the compulsory display of a symbol of a particular faith in the exercise of public authority in relation to specific situations subject to governmental supervision, particularly in classrooms, restrict[ed] the right of parents to educate their children in conformity with their convictions and the right of schoolchildren to believe or not believe”. The practice infringed those rights because “the restrictions [were] incompatible with the State's duty to respect neutrality in the exercise of public authority, particularly in the field of education” ( § 57 of the judgment). B. Arguments of the parties 1. The Government 33. The Government did not raise an objection of inadmissibility. 34. They regretted that the Chamber had not had available to it a comparative law study of relations between the State and religions and on the question of the display of religious symbols in State schools. They asserted that the Chamber had thus deprived itself of an essential element, since such a study would have shown that there was no common approach in Europe in these fields, and would accordingly have led it to the finding that the member States had a particularly wide margin of appreciation; consequently, the Chamber, in its judgment, had failed to take that margin of appreciation into consideration, thus ignoring one fundamental aspect of the problem. 35. The Government also criticised the Chamber's judgment for deriving from the concept of confessional “ neutrality” a principle excluding any relations between the State and a particular religion, whereas neutrality required the public administrative authorities to take all religions into account. The judgment was accordingly based on confusion between “ neutrality” ( an “ inclusive concept” ) and “secularism ( an “exclusive concept”). Moreover, in the Government's view, neutrality meant that States should refrain from promoting not only a particular religion but also atheism, “secularism” on the State's part being no less problematic than proselytising by the State. The Chamber's judgment was thus based on a misunderstanding and amounted to favouring an irreligious or antireligious approach of which the applicant, as a member of the Union of atheists and rationalist agnostics, was asserted to be a militant supporter. 36. The Government went on to argue that it was necessary to take account of the fact that a single symbol could be interpreted differently from one person to another. That applied in particular to the sign of the cross, which could be perceived not only as a religious symbol, but also as a cultural and identity-linked symbol, the symbol of the principles and values which formed the basis of democracy and western civilisation; it appeared, for instance, on the flags of a number of European countries. Whatever the evocative power of an “image” might be, in the Government's view, it was a “passive symbol”, whose impact on individuals was not comparable with the impact of “active conduct”, and no one had asserted in the present case that the content of the teaching provided in Italy was influenced by the presence of crucifixes in classrooms. That presence was the expression of a “national particularity”, characterised notably by close relations between the State, the people and Catholicism attributable to the historical, cultural and territorial development of Italy and to a deeply rooted and long - standing attachment to the values of Catholicism. Keeping crucifixes in schools was therefore a matter of preserving a centuries-old tradition. The Government argued that the right of parents to respect for their “family culture” ought not to infringe the community's right to transmit its culture or the right of children to discover it. Moreover, by contenting itself with a “potential risk” of emotional disturbance in finding a breach of the rights to education and freedom of thought, conscience and religion, the Chamber had considerably widened the scope of those provisions. 37. Referring in particular to the Otto-Preminger-Institut v. Austria judgment of 20 September 1994 ( Series A no. 295-A), the Government contended that, although account should be taken of the fact that the Catholic religion was that of a large majority of Italians, this was not in order to make that fact into an aggravating circumstance, as the Chamber had done. On the contrary, the Court should acknowledge and protect national traditions and the prevailing popular feeling, and leave each State to maintain a balance between opposing interests. Moreover, it was the Court's case-law that school curricula or provisions establishing the preponderance of the majority religion did not in themselves point to undue influence on the part of the State or attempted indoctrination, and that the Court should respect constitutional traditions and principles relating to relations between the State and religions – including in the present case the particular approach to secularism which prevailed in Italy – and take into account the context of each State. 38. Considering in addition that the second sentence of Article 2 of Protocol No. 1 was applicable only to school curricula, the Government criticised the Chamber's judgment for the finding of a violation without any indication of how the mere presence of a crucifix in the classrooms where the first applicant's children were taught was capable of substantially reducing her ability to bring them up in conformity with her convictions, the only reason given being that pupils would feel that they were being educated in a school environment marked by a particular religion. That reason was erroneous when judged by the yardstick of the Court's case-law, from which it could be seen in particular, firstly that the Convention did not prevent member States from having a State religion, or from showing a preference for a particular religion, or from providing pupils with more extensive religious teaching in relation to the dominant religion, and secondly that account had to be taken of the fact that the educational influence of parents was much greater than the school's. 39. In the Government's view, the presence of crucifixes in classrooms made a legitimate contribution to enabling children to understand the national community in which they were expected to integrate. An “environmental influence” was all the more improbable because children in Italy received an education which helped them to develop a critical outlook on the question of religion, in a dispassionate atmosphere from which any form of proselytising was excluded. Moreover, Italy had opted for a benevolent approach to minority religions in the school environment: Italian law currently conferred the right to wear Islamic headscarves and other apparel or symbols with a religious connotation; the beginning and end of Ramadan were often celebrated in schools; religious instruction was permitted for all recognised creeds; and the needs of pupils belonging to minority faiths were taken into account, with Jewish pupils, for example, being entitled not to sit examinations on Saturdays. 40. Lastly, the Government emphasised the need to take into account the right of parents who wanted crucifixes to be kept in classrooms. That was the wish of the majority in Italy and was also the wish democratically expressed in the present case by almost all the members of the school's governing body. Removing crucifixes from classrooms in such circumstances would amount to “abuse of a minority position” and would be in contradiction with the State's duty to help individuals satisfy their religious needs. 2. The applicants 41. The applicants submitted that the display of crucifixes in the classrooms of the State school attended by the second and third applicants constituted an illegitimate interference with their right to the freedom of thought and conscience and infringed the principle of educational pluralism in that it was the expression of the State's preference for a particular religion in a place where conscience was formed. By expressing that preference the State was also disregarding its obligation to give special protection to minors against any form of propaganda or indoctrination. Moreover, according to the applicants, since the educational environment was thus marked by a symbol of the dominant religion, the display of the crucifix which they complained of infringed the second and third applicants'right to receive an open and pluralistic education aimed at the development of a capacity for critical judgement. Lastly, as the first applicant was in favour of secularism, it infringed her right to have her children educated in conformity with her own philosophical convictions. 42. The applicants argued that the crucifix was without a shadow of a doubt a religious symbol and trying to attribute a cultural value to it savoured of an attempt to maintain a hopeless last-ditch defence. Nor did anything in the Italian legal system justify the assertion that it was a symbol of national identity: according to the Constitution, it was the flag which symbolised that identity. Moreover, as the German Federal Constitutional Court had pointed out in its judgment of 16 May 1995 ( see paragraph 2 8 above ), giving the crucifix a profane meaning would move it away from its original meaning and help divest it of its sacred nature. As to the assertion that it was merely a “passive symbol”, this ignored the fact that like all symbols – and more than all others – it gave material form to a cognitive, intuitive and emotional reality which went beyond the immediately perceptible. The German Federal Constitutional Court had, moreover, made that finding, holding in the judgment cited above that the presence of crucifixes in classrooms had an evocative character in that it represented the content of the faith it symbolised and served as “publicity material” for it. Lastly, the applicants pointed out that in the Dahlab v. Switzerland decision of 15 February 2001 (no. 42393/98, ECHR 2001-V), the Court had noted the particular power that religious symbols exerted in the school environment. 43. The applicants contended that every democratic State had a duty to guarantee the freedom of conscience, pluralism, equal treatment of beliefs and the secular nature of institutions. The principle of secularism required above all neutrality on the part of the State, which should keep out of the religious sphere and adopt the same attitude with regard to all religious currents. In other words, neutrality obliged the State to establish a neutral space within which everyone could freely live according to his own beliefs. By imposing religious symbols, namely crucifixes, in classrooms, the Italian State was doing the opposite. 44. The approach advocated by the applicants was thus clearly distinct from State atheism, which amounted to denying the freedom of religion by imposing a secular viewpoint in an authoritarian manner. Seen in terms of the State's impartiality and neutrality, secularism was on the contrary a means of securing the religious and philosophical freedom of conscience of all. 45. The applicants further contended that it was essential to give special protection to minority beliefs and convictions, in order to preserve those who held them from a “despotism of the majority”, and that too was a reason for removing crucifixes from classrooms. 46. In conclusion, the applicants argued that although, as the Government maintained, removing crucifixes from State - school classrooms would take away part of Italian cultural identity, keeping them there was incompatible with the foundations of western political thought, the principles of the liberal State and a pluralist, open democracy, and respect for the individual rights and freedoms enshrined in the Italian Constitution and the Convention. C. Submissions of the third-party interveners 1. The Governments of Armenia, Bulgaria, Cyprus, the Russian Federation, Greece, Lithuania, Malta and the Republic of San Marino 47. In their joint observations submitted at the hearing, the Governments of Armenia, Bulgaria, Cyprus, the Russian Federation, Greece, Lithuania, Malta and the Republic of San Marino indicated that in their view the Chamber's reasoning had been based on a misunderstanding of the concept of “neutrality”, which the Chamber had confused with “secularism”. They pointed out that there was a huge diversity of Church-State arrangements in Europe and that more than half the population of Europe lived in non-secular States. They added that State symbols inevitably had a place in state education and that many of these had a religious origin, the Cross – which was both a national and a religious symbol – being the most visible example. In their view, in non-secular European States the presence of religious symbols in the public space was widely tolerated by the secular population as part of national identity. States should not have to divest themselves of part of their cultural identity simply because that identity was of religious origin. The position adopted by the Chamber was not an expression of the pluralism manifest in the Convention system, but an expression of the values of a secular State. To extend it to the whole of Europe would represent the “Americanisation” of Europe in that a single and unique rule and a rigid separation of Church and State would be binding on everyone. In their submission, favouring secularism was a political position that, whilst respectable, was not neutral. Accordingly, in the educational sphere a State that supported the secular as opposed to the religious was not being neutral. Similarly, removing crucifixes from classrooms where they had always been would not be devoid of educational consequences. In reality, whether the State opted to allow or prohibit the presence of crucifixes in classrooms, the important factor was the degree to which the curriculum contextualised and taught children tolerance and pluralism. The intervening Governments acknowledged that there might be circumstances where the arrangements by the State were unacceptable. The burden of proof should remain on the individual, however, and the Court should intervene only in extreme cases. 2. The Government of the Principality of Monaco 48. The intervening Government declared that they shared the viewpoint of the respondent Government according to which the crucifix was a “passive symbol” that was found on the coats of arms and flags of many States and in the instant case reflected a national identity rooted in history. Furthermore, being indivisible, the principle of State neutrality required the authorities to refrain from imposing a religious symbol where there had never been one and from withdrawing one that had always been there. 3. The Government of Romania 49. The intervening Government submitted that the Chamber had taken insufficient account of the wide margin of appreciation available to the Contracting States where sensitive issues were involved and that there was no European-wide consensus. They pointed out that the Court's case-law recognised in particular that the States enjoyed a wide margin of appreciation regarding the wearing of religious symbols in State schools; in their submission, the same should apply to the display of religious symbols in such schools. They also pointed out that the Chamber judgment had been based on the premise that the display of religious symbols in State schools breached Article 9 of the Convention and Article 2 of Protocol No. 1, which conflicted with the principle of neutrality because, where applicable, Contracting States were compelled to intervene with a view to removing those symbols. In their view, that principle was better served where decisions of this type were taken jointly by teachers, pupils and parents. In any event, as it was not associated with particular religious obligations, the presence of the crucifix in classrooms did not sufficiently affect the religious feelings of those concerned for there to be a violation of the aforementioned provisions. 4. The non-governmental organisation Greek Helsinki Monitor 50. According to the intervening organisation, the crucifix could not be perceived as anything other than a religious symbol, so that displaying it in State-school classrooms could be seen as an institutional message advocating a particular religion. It pointed out that in the case of Folgerø the Court had held that the participation of pupils in religious activities could in fact influence them, and considered that the same was true where they were taught in classrooms where a religious symbol was displayed. It also drew the Court's attention to the fact that children or parents who were bothered by this might refrain from protesting for fear of reprisals. 5. The non-governmental organisation Associazione nazionale del libero Pensiero 51. The intervening organisation, which considered that the presence of religious symbols in State-school classrooms was incompatible with Article 9 of the Convention and Article 2 of Protocol No. 1, submitted that the restrictions imposed on the applicants'rights were not “ prescribed by law” within the meaning of the Court's case-law. It pointed out in that connection that displaying the crucifix in State-school classrooms was prescribed not by law but by regulations adopted during the fascist era. It added that those regulations had in any event been implicitly repealed by the Constitution of 1947 and the Law of 1985 ratifying the agreements amending the Lateran Pacts of 1929. It pointed out that the Criminal Division of the Court of Cassation had ruled accordingly in a judgment of 1 March 2000 (no. 4273) in a similar case relating to crucifixes displayed in polling stations and that it had confirmed that approach in a judgment of 17 February 2009 concerning crucifixes displayed in courtrooms (without, however, ruling on the merits). There was therefore a conflict of case-law between the Consiglio di Stato – which, on the contrary, held that the relevant regulations were applicable – and the Court of Cassation that affected the principle of legal security, which was the pillar of a State governed by the rule of law. As the Constitutional Court had declined jurisdiction, there was no mechanism in Italy whereby this conflict could be resolved. 6. The non-governmental organisation European Centre for Law and Justice 52. The intervening organisation submitted that the Chamber had wrongly addressed the question raised by the case, which was whether the Convention rights invoked by the first applicant had been violated merely on account of the presence of the crucifix in classrooms. Its view was that they had not. Firstly, the “ personal convictions ” of the first applicant's children had not been violated because they had neither been compelled to act against their conscience nor prevented from acting according to their conscience. Secondly, their “innermost convictions” and the first applicant's right to ensure their education in conformity with her own philosophical convictions had not been violated because her children had neither been forced to believe nor prevented from not believing. They had not been indoctrinated; nor had they been the subject of misplaced proselytism. The intervening organisation submitted that the Chamber had been mistaken in holding that a State's decision to display crucifixes in classrooms was contrary to the Convention (which was not the question that had been submitted to it). In doing so, the Chamber had created “a new obligation relating not to the first applicant's rights, but to the nature of the “ educational environment”. In the intervening organisation's submission, it was because it had been unable to establish that the first applicant's children's “innermost or personal convictions ” had been violated on account of the presence of the crucifix in the classrooms that the Chamber had created a new obligation to ensure that the educational environment was entirely secular, thus exceeding the scope of the application and the limits of its jurisdiction. 7. The non-governmental organisation Eurojuris 53. The intervening organisation agreed with the Chamber's conclusions. After reiterating the relevant provisions of Italian positive law – and underscoring the constitutional value of the principle of secularism – it referred to the principle established in the Court's case-law to the effect that school should not be a place for proselytism or preaching. It also referred to cases in which the Court had examined the question of the wearing of Islamic veils in educational establishments. It went on to point out that the presence of crucifixes in Italian State-school classrooms had been prescribed not by law but by regulations inherited from the fascist era which reflected a confessional conception of the State today that was incompatible with the principle of secularism laid down in positive constitutional law. It firmly rejected the reasoning of the Italian Administrative Court, according to which prescribing the presence of crucifixes in State-school classrooms was still compatible with that principle because they symbolised secular values. In its submission, it was a religious symbol with which non-Christians did not identify. Moreover, by obliging schools to display it in State-school classrooms the State conferred a particular dimension on a given religion, to the detriment of pluralism. 8. The non-governmental organisations International Commission of Jurists, Interights and Human Rights Watch 54. The intervening organisations submitted that the compulsory display of religious symbols such as the crucifix in State-school classrooms was incompatible with the principle of neutrality and the rights guaranteed to pupils and their parents under Article 9 of the Convention and Article 2 of Protocol No. 1. In their submission, educational pluralism was an established principle, upheld not only in the Court's case-law but also in the case-law of a number of supreme courts and in various international instruments. Furthermore, the Court's case-law supported a duty of State neutrality and impartiality as among religious beliefs in the provision of public services, including education. They pointed out that this principle of impartiality was recognised not only by the Italian, Spanish and German Constitutional Courts but also, in particular, by the French Conseil d'Etat and the Swiss Federal Court. They added that, as several supreme courts had held, State neutrality as among religious beliefs was particularly important in the classroom because, school being compulsory, children were vulnerable to indoctrination at school. They went on to reiterate the Court's finding that, although the Convention did not prevent States from imparting through teaching or education information or knowledge of a religious or philosophical kind, they had to ensure that this was done in an objective, critical and pluralistic manner, and free of any indoctrination. They stressed that the same applied to all functions carried out in the area of education and teaching, including the organisation of the school environment. 9. The non-governmental organisations Zentralkomitee der deutschen katholiken, Semaines sociales de France and Associazioni cristiane lavoratori italiani 55. The intervening organisations stated that they agreed with the Chamber that, whilst the crucifix had a plural meaning, it was primarily the central symbol of Christianity. They added, however, that they disagreed with its conclusion, and found it difficult to understand how the presence of crucifixes in classrooms could be “emotionally disturbing” for some pupils or hinder the development of their critical thinking. In their submission, that presence alone could not be equated with a religious or philosophical message; it should rather be interpreted as a passive way of conveying basic moral values. The question accordingly had to be regarded as one that fell within the competence of the State when deciding on the curriculum in schools; parents had to accept that certain aspects of State-school education could not be entirely in keeping with their convictions. They added that a State's decision to display crucifixes in State-school classrooms did not mean that it pursued an aim of indoctrination prohibited by Article 2 of Protocol No. 1. They maintained that a balance had to be found in the present case between the rights and interests of believers and non-believers, between the fundamental rights of individuals and the legitimate interests of society, and between the formulation of standards relating to fundamental rights and maintaining the diversity existing in Europe. In their submission, the Court should leave a wide margin of appreciation to the States in this area because the organisation of the relationship between the State and religion varied from one country to another and – in particular regarding the place of religion in State schools – was deeply rooted in the history, tradition and culture of a country. 10. Thirty-three members of the European Parliament acting collectively 56. The interveners pointed out that the Court was not a constitutional court and had to respect the principle of subsidiarity and recognise a particularly broad margin of appreciation in favour of Contracting States not only regarding the relationship between the State and religion but also where they carried out their functions in the area of education and teaching. In their view, by taking a decision whose effect would be to make it compulsory to remove religious symbols from State schools, the Grand Chamber would be sending a radical ideological message. They added that it was clear from the Court's case-law that a State which, for reasons deriving from its history or its tradition, showed a preference for a particular religion did not exceed that margin. Accordingly, in their opinion, the display of crucifixes in public buildings did not conflict with the Convention, and the presence of religious symbols in the public space should not be seen as a form of indoctrination but the expression of a cultural unity and identity. They added that in this specific context religious symbols had a secular dimension and should therefore not be removed. D. The Court's assessment 57. In the first place, the Court observes that the only question before it concerns the compatibility, in the light of the circumstances of the case, of the presence of crucifixes in Italian State - school classrooms with the requirements of Article 2 of Protocol No. 1 and Article 9 of the Convention. Thus it is not required in this case to examine the question of the presence of crucifixes in places other than State schools. Nor is it for the Court to rule on the compatibility of the presence of crucifixes in State - school classrooms with the principle of secularism as enshrined in Italian law. 58. Secondly, the Court emphasises that the supporters of secularism are able to lay claim to views attaining the “ level of cogency, seriousness, cohesion and importance” required for them to be considered “convictions” within the meaning of Articles 9 of the Convention and 2 of Protocol No. 1 ( see Campbell and Cosans v. the United Kingdom, 25 February 1982, § 36, Series A no. 48 ). More precisely, their views must be regarded as “philosophical convictions”, within the meaning of the second sentence of Article 2 of Protocol No. 1, given that they are worthy of “respect'in a democratic society'”, are not incompatible with human dignity and do not conflict with the fundamental right of the child to education (ibid. ). 1. The case of the first applicant a. General principles 59. The Court reiterates that in the area of education and teaching Article 2 of Protocol No. 1 is in principle the lex specialis in relation to Article 9 of the Convention. That is so at least where, as in the present case, the dispute concerns the obligation laid on Contracting States by the second sentence of Article 2 to respect, when exercising the functions they assume in that area, the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions ( see Folgerø and Others v. Norway [GC], no. 15472/02, § 84, ECHR 2007 ‑ VIII, § 8 4). The complaint in question should therefore be examined mainly from the standpoint of the second sentence of Article 2 of Protocol No. 1 ( see also Appel-Irrgang and Others v. Germany (dec.), no. 45216/07, ECHR 2009 ‑ ... ). 60. Nevertheless, that provision should be read in the light not only of the first sentence of the same Article, but also, in particular, of Article 9 of the Convention ( see, for example, Folgerø, cited above, § 84 ), which guarantees freedom of thought, conscience and religion, including the freedom not to belong to a religion, and which imposes on Contracting States a “duty of neutrality and impartiality”. In that connection, it should be pointed out that States have responsibility for ensuring, neutrally and impartially, the exercise of various religions, faiths and beliefs. Their role is to help maintain public order, religious harmony and tolerance in a democratic society, particularly between opposing groups ( see, for example, Leyla Şahin v. Turkey [GC], no. 44774/98, § 107, ECHR 2005 ‑ XI ). That concerns both relations between believers and non-believers and relations between the adherents of various religions, faiths and beliefs. 61. The word “respect” in Article 2 of Protocol No. 1 means more than “ acknowledge ” or “ take into account ”; in addition to a primarily negative undertaking, it implies some positive obligation on the part of the State (see Campbell and Cosans, cited above, § 37). Nevertheless, the requirements of the notion of “respect”, which appears also in Article 8 of the Convention, vary considerably from case to case, given the diversity of the practices followed and the situations obtaining in the Contracting States. As a result, the Contracting States enjoy a wide margin of appreciation in determining the steps to be taken to ensure compliance with the Convention with due regard to the needs and resources of the community and of individuals. In the context of Article 2 of Protocol No. 1 that concept implies in particular that this provision cannot be interpreted to mean that parents can require the State to provide a particular form of teaching (see Bulski v. Poland (dec.), nos. 46254/99 and 31888/02). 62. The Court would also refer to its case-law on the place of religion in the school curriculum (see essentially Kjeldsen, Busk Madsen and Pedersen v. Denmark, 7 December 1976, §§ 50-53, Series A no. 23; Folgerø, cited above, § 84; and Hasan and Eylem Zengin v. Turkey, no. 1448/04, §§ 51 and 52, ECHR 2007 ‑ XI ). According to those authorities, the setting and planning of the curriculum fall within the competence of the Contracting States. In principle it is not for the Court to rule on such questions, as the solutions may legitimately vary according to the country and the era. In particular, the second sentence of Article 2 of Protocol No. 1 does not prevent States from imparting through teaching or education information or knowledge of a directly or indirectly religious or philosophical kind. It does not even permit parents to object to the integration of such teaching or education in the school curriculum. On the other hand, as its aim is to safeguard the possibility of pluralism in education, it requires the State, in exercising its functions with regard to education and teaching, to take care that information or knowledge included in the curriculum is conveyed in an objective, critical and pluralistic manner, enabling pupils to develop a critical mind particularly with regard to religion in a calm atmosphere free of any proselytism. The State is forbidden to pursue an aim of indoctrination that might be considered as not respecting parents'religious and philosophical convictions. That is the limit that the States must not exceed ( see judgments cited above in this paragraph, §§ 53, 84 (h) and 52 respectively). b. Assessment of the facts of the case in the light of the above principles 63. The Court does not accept the Government's argument that the obligation laid on Contracting States by the second sentence of Article 2 of Protocol No. 1 concerns only the content of school curricula, so that the question of the presence of crucifixes in State- school classrooms would fall outside its scope. It is true that a number of cases in which the Court has examined this provision concerned the content and implementation of the school curriculum. Nevertheless, as the Court has already emphasised, the obligation on Contracting States to respect the religious and philosophical convictions of parents does not apply only to the content of teaching and the way it is provided; it binds them “in the exercise” of all the “functions” – in the terms of the second sentence of Article 2 of Protocol No. 1 – which they assume in relation to education and teaching ( see essentially Kjeldsen, Busk Madsen and Pedersen, cited above, § 50; Valsamis v. Greece, 18 December 1996, § 27, Reports of Judgments and Decisions 1996 ‑ VI; Hasan and Eylem Zengin, cited above, § 49; and Folgerø, cited above, § 84 ). That includes without any doubt the organisation of the school environment where domestic law attributes that function to the public authorities. It is in that context that the presence of crucifixes in Italian State - school classrooms is to be placed ( see Article 118 of royal decree no. 965 of 30 April 1924, Article 119 of royal decree no. 1297 of 26 April 1928 and Articles 159 and 190 of legislative decree no. 297 of 16 April 1994 – paragraphs 14 and 19 above ). 64. In general, the Court considers that where the organisation of the school environment is a matter for the public authorities, that task must be seen as a function assumed by the State in relation to education and teaching, within the meaning of the second sentence of Article 2 of Protocol No. 1. 65. It follows that the decision whether crucifixes should be present in State - school classrooms forms part of the functions assumed by the respondent State in relation to education and teaching and, accordingly, falls within the scope of the second sentence of Article 2 of Protocol No. 1. That makes it an area in which the State's obligation to respect the right of parents to ensure the education and teaching of their children in conformity with their own religious and philosophical convictions comes into play. 66. The Court further considers that the crucifix is above all a religious symbol. The domestic courts came to the same conclusion and in any event the Government have not contested this. The question whether the crucifix is charged with any other meaning beyond its religious symbolism is not decisive at this stage of the Court's reasoning. There is no evidence before the Court that the display of a religious symbol on classroom walls may have an influence on pupils and so it cannot reasonably be asserted that it does or does not have an effect on young persons whose convictions are still in the process of being formed. However, it is understandable that the first applicant might see in the display of crucifixes in the classrooms of the State school formerly attended by her children a lack of respect on the State's part for her right to ensure their education and teaching in conformity with her own philosophical convictions. Be that as it may, the applicant's subjective perception is not in itself sufficient to establish a breach of Article 2 of Protocol No. 1. 67. The Government, for their part, explained that the presence of crucifixes in State- school classrooms, being the result of Italy's historical development, a fact which gave it not only a religious connotation but also an identity-linked one, now corresponded to a tradition which they considered it important to perpetuate. They added that, beyond its religious meaning, the crucifix symbolised the principles and values which formed the foundation of democracy and western civilisation, and that its presence in classrooms was justifiable on that account. 68. The Court takes the view that the decision whether or not to perpetuate a tradition falls in principle within the margin of appreciation of the respondent State. The Court must moreover take into account the fact that Europe is marked by a great diversity between the States of which it is composed, particularly in the sphere of cultural and historical development. It emphasises, however, that the reference to a tradition cannot relieve a Contracting State of its obligation to respect the rights and freedoms enshrined in the Convention and its Protocols. As regards the Government's opinion on the meaning of the crucifix, the Court notes that the Consiglio di Stato and the Court of Cassation have diverging views in that regard and that the Constitutional Court has not given a ruling (see paragraphs 16 and 23 above). It is not for the Court to take a position regarding a domestic debate among domestic courts. 69. The fact remains that the Contracting States enjoy a margin of appreciation in their efforts to reconcile exercise of the functions they assume in relation to education and teaching with respect for the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions (see paragraphs 6 1 -62 above). That applies to organisation of the school environment and to the setting and planning of the curriculum ( as the Court has already pointed out : see essentially the judgments cited above in the cases of Kjeldsen, Busk Madsen and Pedersen, §§ 50-53; Folgerø, § 84; and Zengin, §§ 51-52; paragraph 62 above). The Court therefore has a duty in principle to respect the Contracting States'decisions in these matters, including the place they accord to religion, provided that those decisions do not lead to a form of indoctrination (ibid.). 70. The Court concludes in the present case that the decision whether crucifixes should be present in State - school classrooms is, in principle, a matter falling within the margin of appreciation of the respondent State. Moreover, the fact that there is no European consensus on the question of the presence of religious symbols in State schools (see paragraphs 2 6 - 28 above) speaks in favour of that approach. This margin of appreciation, however, goes hand in hand with European supervision (see, for example, mutatis mutandis, Leyla Şahin, cited above, § 110), the Court's task in the present case being to determine whether the limit mentioned in paragraph 69 above has been exceeded. 71. In that connection, it is true that by prescribing the presence of crucifixes in State- school classrooms – a sign which, whether or not it is accorded in addition a secular symbolic value, undoubtedly refers to Christianity – the regulations confer on the country's majority religion preponderant visibility in the school environment. That is not in itself sufficient, however, to denote a process of indoctrination on the respondent State's part and establish a breach of the requirements of Article 2 of Protocol No. 1. The Court refers on this point, mutatis mutandis, to the previously cited Folgerø and Zengin judgments. In the Folgerø case, in which it was called upon to examine the content of “Christianity, religion and philosophy” (KRL) lessons, it found that the fact that the syllabus gave a larger share to knowledge of the Christian religion than to that of other religions and philosophies could not in itself be viewed as a departure from the principles of pluralism and objectivity amounting to indoctrination. It explained that in view of the place occupied by Christianity in the history and tradition of the respondent State – Norway – this question had to be regarded as falling within the margin of appreciation left to it in planning and setting the curriculum (see Folgerø, cited above, § 89). It reached a similar conclusion in the context of “religious culture and ethics” classes in Turkish schools, where the syllabus gave greater prominence to knowledge of Islam on the ground that, notwithstanding the State's secular nature, Islam was the majority religion practised in Turkey (see Zengin, cited above, § 63). 72. Furthermore, a crucifix on a wall is an essentially passive symbol and this point is of importance in the Court's view, particularly having regard to the principle of neutrality (see paragraph 60 above). It cannot be deemed to have an influence on pupils comparable to that of didactic speech or participation in religious activities (see on these points Folgerø and Zengin, cited above, § 94 and § 64 respectively). 73. The Court observes that, in its judgment of 3 November 2009, the Chamber agreed with the submission that the display of crucifixes in classrooms would have a significant impact on the second and third applicants, aged eleven and thirteen at the time. The Chamber found that, in the context of public education, crucifixes, which it was impossible not to notice in classrooms, were necessarily perceived as an integral part of the school environment and could therefore be considered “ powerful external symbols” within the meaning of the decision in Dahlab, cited above (see §§ 54 and 55 of the judgment). The Grand Chamber does not agree with that approach. It considers that that decision cannot serve as a basis in this case because the facts of the two cases are entirely different. It points out that the case of Dahlab concerned the measure prohibiting the applicant from wearing the Islamic headscarf while teaching, which was intended to protect the religious beliefs of the pupils and their parents and to apply the principle of denominational neutrality in schools enshrined in domestic law. After observing that the authorities had duly weighed the competing interests involved, the Court held, having regard above all to the tender age of the children for whom the applicant was responsible, that the authorities had not exceeded their margin of appreciation. 74. Moreover, the effects of the greater visibility which the presence of the crucifix gives to Christianity in schools needs to be further placed in perspective by consideration of the following points. Firstly, the presence of crucifixes is not associated with compulsory teaching about Christianity ( see the comparative - law information set out in Zengin, cited above, § 33). Secondly, according to the indications provided by the Government, Italy opens up the school environment in parallel to other religions. The Government indicated in this connection that it was not forbidden for pupils to wear Islamic headscarves or other symbols or apparel having a religious connotation; alternative arrangements were possible to help schooling fit in with non-majority religious practices; the beginning and end of Ramadan were “often celebrated” in schools; and optional religious education could be organised in schools for “all recognised religious creeds” (see paragraph 39 above). Moreover, there was nothing to suggest that the authorities were intolerant of pupils who believed in other religions, were non-believers or who held non-religious philosophical convictions. In addition, the applicants did not assert that the presence of the crucifix in classrooms had encouraged the development of teaching practices with a proselytising tendency, or claim that the second and third applicants had ever experienced a tendentious reference to that presence by a teacher in the exercise of his or her functions. 75. Lastly, the Court notes that the first applicant retained in full her right as a parent to enlighten and advise her children, to exercise in their regard her natural functions as educator and to guide them on a path in line with her own philosophical convictions ( see, in particular, Kjeldsen, Busk Madsen and Pedersen and Valsamis, cited above, §§ 54 and 31 respectively ). 76. It follows from the foregoing that, in deciding to keep crucifixes in the classrooms of the State school attended by the first applicant's children, the authorities acted within the limits of the margin of appreciation left to the respondent State in the context of its obligation to respect, in the exercise of the functions it assumes in relation to education and teaching, the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions. 77. The Court accordingly concludes that there has been no violation of Article 2 of Protocol No. 1 in respect of the first applicant. It further considers that no separate issue arises under Article 9 of the Convention. 2. The case of the second and third applicants 78. The Court considers that, when read as it should be in the light of Article 9 of the Convention and the second sentence of Article 2 of Protocol No. 1, the first sentence of that provision guarantees schoolchildren the right to education in a form which respects their right to believe or not to believe. It therefore understands why pupils who are in favour of secularism may see in the presence of crucifixes in the classrooms of the State school they attend an infringement of the rights they derive from those provisions. However, it considers, for the reasons given in connection with its examination of the first applicant's case, that there has been no violation of Article 2 of Protocol No. 1 in respect of the second and third applicants. It further considers that no separate issue arises in the case under Article 9 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION 79. The applicants submitted that because the second and third applicants had been exposed to the crucifixes displayed in the classrooms of the State school they attended, all three of them, not being Catholics, had suffered a discriminatory difference in treatment in relation to Catholic parents and their children. Arguing that “the principles enshrined in Article 9 of the Convention and Article 2 of Protocol No. 1 are reinforced by the provisions of Article 14 de la Convention ”, they complained of a violation of the latter Article, which provides: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” 80. The Chamber held that, regard being had to the circumstances of the case and the reasoning which had led it to find a violation of Article 2 of Protocol No. 1 taken together with Article 9 of the Convention, there was no cause to examine the case under Article 14 also, whether taken separately or in conjunction with those provisions. 81. The Court, which notes that little argument has been presented in support of this complaint, reiterates that Article 14 of the Convention has no independent existence, since it has effect solely in relation to the enjoyment of the rights and freedoms safeguarded by the other substantive provisions of the Convention and its Protocols. Proceeding on the assumption that the applicants wished to complain of discrimination regarding their enjoyment of the rights guaranteed by Article 9 of the Convention and Article 2 of Protocol No. 1 on account of the fact that they were not adherents of the Catholic religion and that the second and third of them had been exposed to the sight of crucifixes in the classrooms of the State school they attended, the Court does not see in those complaints any issue distinct from those it has already determined under Article 2 of Protocol No. 1. There is accordingly no cause to examine this part of the application. | In its Grand Chamber judgment, the European Court of Human Rights held that there had been no violation of Article 2 (right to education) of Protocol No. 1 to the European Convention on Human Rights, and that no separate issue arose under Article 9 (freedom of thought, conscience and religion) of the Convention. It found in particular that the question of religious symbols in classrooms was, in principle, a matter falling within the margin of appreciation of the State – particularly as there was no European consensus as regards that question – provided that decisions in that area did not lead to a form of indoctrination. The fact that crucifixes in State-school classrooms in Italy conferred on the country’s majority religion predominant visibility in the school environment was not in itself sufficient to denote a process of indoctrination. Moreover, the presence of crucifixes was not associated with compulsory teaching about Christianity; and there was nothing to suggest that the authorities were intolerant of pupils who believed in other religions, were non-believers or who held non-religious philosophical convictions. Lastly, the applicant had retained her right as a parent to enlighten and advise her children and to guide them on a path in line with her own philosophical convictions. |
1,041 | Prohibition of discrimination (Article 14 of the Convention) and General prohibition of discrimination (Article 1 of Protocol No. 12 to the Convention) | II. RELEVANT NATIONAL AND INTERNATIONAL LAW A. Domestic law and practice 1. National Insurance contributions (NICs) 37. NICs are payable by employees and the self-employed who earn income over a set limit and by employers in respect of employees earning over a set limit. It is also possible for individuals who are not liable to pay compulsory contributions, because for example they are resident outside the United Kingdom, to make voluntary contributions to protect the right to certain social security benefits. The amounts paid by employees and employers depend on income. In the current tax year (2009 / 10), employees earning between GBP 110 and GBP 844 per week pay 11% of their income, with an additional 12.8% paid by the employer. The basic rate for the self-employed is currently GBP 2.40 per week and the voluntary contributions rate is GBP 12.05 per week. 38. The social security benefits paid for from NICs include contribution - based jobseeker ’ s allowance, incapacity benefit (now replaced by employment and support allowance), maternity allowance, widow ’ s benefit, bereavement benefit, retirement pensions of certain categories, child ’ s special allowance and guardian ’ s allowance. These benefits are financed on a “pay as you go” basis from NICs paid in the current year. If necessary, additional funding can be provided from money received in income tax and other forms of taxation, but this has not been necessary since 1998. NICs also partly pay for the cost of the National Health Service. 2. State pension 39. The basic State pension is, in the current financial year 2009/10, GBP 95.25 per week. To qualify for a State pension, it is necessary to have reached State pension age and to have paid or been credited with (or have a husband, wife or civil partner who has been paid or been credited with) NICs for a sufficient number of “qualifying years”. The State pension age is currently 65 for men and 60 for women. It will increase gradually for women from 2010, so that by 2020 it will be 65 for both sexes. At present, men need 44 qualifying years by the age of 65 to get a full basic State pension and women who reach the age of 60 before 2010 need 39 qualifying years. The Pensions Act 2007 reduced the number of qualifying years needed for a full basic State pension to 30 for people who reach State pension age on or after 6 April 2010. A percentage of the full basic State pension is payable to an individual without the full number of qualifying years. To get the minimum basic State pension (25%) it is normally necessary to have 10 or 11 qualifying years. 40. Individuals resident in the United Kingdom who do not have sufficient qualifying years to entitle them to a State pension may be entitled to non-contributory welfare benefits, such as means-tested income support and housing benefit. 3. Pension uprating and reciprocal agreements 41. Under section 150 of the Social Security Administration Act 1992, the Secretary of State is required to make an order each year to increase the basic State pension to maintain its value “ in relation to the general level of prices obtaining in Great Britain ”. 42. Although the basic State pension is payable to individuals resident outside the United Kingdom, non-residents are disqualified from receiving uprated pensions. Instead, unless or until they return to live in the United Kingdom, they continue to receive the State pension at the weekly rate applicable in the year in which they emigrated or, if they emigrated before reaching retirement age, at the rate applicable in the year in which they attained retirement age. A non-resident who returns to the United Kingdom for a short period receives the uprated pension while in the United Kingdom, but, when he returns to his country of residence, the pension reverts to its previous amount. 43. The exception to this rule concerns individuals who move to States which have concluded a bilateral reciprocal social security agreement with the United Kingdom which provides for the pensions paid to qualifying individuals to be uprated in line with United Kingdom inflation. 44. States enter into bilateral agreements to provide on a reciprocal basis for wider social security cover for workers and their families moving between the party countries than is available under national legislation alone. Each results from negotiations between the party States, taking into account the scope for reciprocity between the two social security schemes. In all cases the agreement establishes the social security scheme which is to be applied to persons moving from one country to work in the other. Generally, the scheme applicable is that of the country of employment. Whether a reciprocal social security agreement with another country is entered into depends on various factors, among them the numbers of people moving from one country to the other, the benefits available under the other country ’ s scheme, how far reciprocity is possible and the extent to which the advantages to be gained by an agreement outweigh the additional expenditure likely to be incurred by each State. Where an agreement is in place, the flow of funds may differ depending on the level of each country ’ s benefits and the number of people going in each direction. 45. Of the bilateral agreements entered into by the United Kingdom which cover more than liability for contributions, nearly all cover retirement pensions and widow ’ s/bereavement benefits. The majority also cover sickness, incapacity and maternity benefits. Some cover unemployment and child benefits. Where access to a benefit covered by the agreement is dependent on contributions, the agreement generally provides for aggregation of the contributions paid in each country. Each country then calculates a pro-rata pension based on contributions made in that country. Where access to a benefit depends on a period of residence, the agreement is likely to provide for residence in one country to count as residence in the other. Where benefit is paid in one country taking account of residence/contributions in the other, there is usually a provision for reimbursement of the former by the latter. Not all reciprocal agreements to which the United Kingdom is a party, therefore, involve the payment of pension uprating to United Kingdom expatriates. 46. The United Kingdom has reciprocal social security agreements providing for pension uprating with all European Economic Area (EEA) States and with Barbados, Bermuda, Bosnia and Herzegovina, Croatia, the Federal Republic of Yugoslavia, Israel, Jamaica, Japan, Jersey and Guernsey, South Korea, Mauritius, New Zealand, Philippines, Turkey and the United States of America. Residents of the EEA countries and the countries listed above who qualify for a United Kingdom State pension receive the same level of uprating as United Kingdom residents; the uprating is based on the rate of inflation in the United Kingdom and no regard is paid to inflation in the country of residence. 47. All the above agreements were concluded between 1948 and 1992, and from 1979 onwards the agreements were to fulfil earlier commitments made by the United Kingdom Government. Since June 1996, the Government ’ s policy has been that future reciprocal agreements should normally be limited to resolving questions of liability for social security contributions. Agreements with Australia, New Zealand and Canada came into force in 1953, 1956 and 1959 respectively, but these did not require payment of uprated pensions. The agreement with Australia was terminated by Australia as from 1 March 2001, because of the refusal of the United Kingdom to pay uprated pensions to its pensioners living in Australia. 48. During the passage of the Pensions Bill through Parliament in 1995, amendments tabled in both Houses, calling for uprating to be paid to all expatriate pensioners, were defeated by large majorities. According to the Government, it would cost approximately GBP 4 billion (4 thousand million) to pay the backdated claims to uprating of all United Kingdom pensioners resident abroad in “frozen” countries together with an ongoing annual bill of over GBP 500 million ( 0.79 % of the GBP 62.7 billion spent in total by the United Kingdom in 2008/09 on pensions). B. Relevant international law 49. Article 69 of the 1952 International Labour Organization ’ s Social Security (Minimum Standards) Convention (“the 1952 ILO Convention”) provides that a benefit to which a protected person would otherwise be entitled in compliance with the 1952 ILO Convention (including old - age benefit) may be suspended, in whole or in part, by national law as long as the person concerned is absent from the territory of the State concerned. The above provision is echoed in Article 68 of the 1964 European Code of Social Security and Article 74 § 1 (f) of the 1990 European Code of Social Security (Revised ). 50. Part IV of the 1982 ILO Convention concerning the Establishment of an International System for the Maintenance of Rights in Social Security envisages that equal treatment of the nationals of the Contracting Parties in respect of social security rights, including the retention of benefits arising out of social security legislation whatever the movements the persons protected might undertake between Contracting States, may be secured by the conclusion of appropriate bilateral and multilateral agreements. Bilateral agreements are the most utilised method of coordination of social security laws and vary greatly in both personal and material scope. Some bilateral agreements cover only nationals of the Contracting Parties, while others apply to any person who has been covered by the social security systems of at least one of the Contracting Parties. They sometimes cover both contributory and non-contributory benefits; sometimes they are confined to contributory benefits only. 51. In April 2008 a Council of Europe initiative to draw up a new framework agreement for the coordination of social security schemes within the member States, to enable in particular the export of benefits throughout the Council of Europe region, was abandoned when it became clear that most countries preferred to maintain the present system of bilateral agreements (see CM(2008)71, paragraph 11, 17 April 2008). THE LAW 52. All the applicants complained that the failure to uprate their pensions violated their rights under Article 1 of Protocol No. 1 taken alone and in conjunction with Article 14. Six of the applicants also complained, under Article 8 of the Convention taken in conjunction with Article 14, that the failure to uprate their pensions had touched on their decisions to live with their families outside the United Kingdom in a discriminatory manner. Article 14 provides: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” Article 1 of Protocol No. 1 provides: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” Article 8 provides: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” I. ADMISSIBILITY ISSUES A. The Chamber ’ s conclusions 53. The Chamber declared the complaint under Article 1 of Protocol No. 1 taken alone inadmissible, on the ground that this provision did not guarantee the right to acquire possessions or to receive a social security benefit or pension payment of any kind or amount, unless provided for by national law. It declared the complaint under Article 14 taken in conjunction with Article 1 of Protocol No. 1 admissible and, without making any decision as to its admissibility, decided that it was not necessary to examine the complaint under Article 14 taken in conjunction with Article 8. B. The parties ’ submissions 54. The applicants submitted that their complaint under Article 1 of Protocol No. 1 had two limbs. Firstly, they claimed that the imposition of a residence condition on the right to receive uprated pension payments involved a deprivation or interference with the right to an uprated pension. Secondly, they complained that, without uprating, the year-on-year reduction in the value of the pension eroded the possession it represented. They claimed that the Chamber had been wrong to declare the complaint under Article 1 of Protocol No. 1 inadmissible. Moreover, they claimed that the Chamber had addressed only the first limb of this complaint. 55. The applicants accepted that, among them, only Ms Carson had brought domestic proceedings. However, they reasoned that once the House of Lords had found against her, there would have been no purpose in the other applicants attempting to pursue a domestic remedy. While it was true that the complaint under Article 14 taken in conjunction with Article 8 had not been raised in the national proceedings, the applicants should nonetheless be permitted to pursue it before the Court, since the Government had not previously challenged it on grounds of non-exhaustion and since the applicants were elderly and should not be required to wait any longer for a conclusion. 56. The Government submitted, firstly, that the application should be declared inadmissible for non -exhaustion as far as it related to the twelve applicants other than Ms Carson, since they had not brought any domestic proceedings. Secondly, they contended that in any event the complaint under Article 14 taken in conjunction with Article 8 should be declared inadmissible for non-exhaustion since it had never been raised before the domestic courts. C. The Court ’ s assessment 57. With regard, firstly, to the question under Article 1 of Protocol No. 1 taken alone, the Court considers that what the applicants refer to as the second limb of their complaint amounts to no more than a restatement of the first limb. There is no right under national law for a resident of a country which has not concluded a reciprocal agreement with the United Kingdom to have his pension increased annually in line with inflation in the United Kingdom. The Chamber ’ s decision to declare the complaint under Article 1 of Protocol No. 1 taken alone inadmissible was a final decision and this part of the application is not, therefore, before the Grand Chamber (see K. and T. v. Finland [GC], no. 25702/94, § 141, ECHR 2001-VII, and Šilih v. Slovenia [GC], no. 71463/01, §§ 119-21, 9 April 2009). 58. As regards the Government ’ s preliminary objections, the Court considers that it would be wrong to declare the complaint under Article 1 of Protocol No. 1 inadmissible as regards the twelve applicants who did not bring domestic proceedings. Once Ms Carson ’ s case had been rejected by the House of Lords, these applicants would have had no prospect of success before the domestic courts. 59. However, it considers that the complaint under Article 14 taken in conjunction with Article 8 should be declared inadmissible. The applicants do not contend that the available domestic remedies would not have been effective and Ms Carson pursued her complaints under Article 14 of the Convention and Article 1 of Protocol No. 1 through three tiers of the domestic courts, which gave considered and detailed judgments. In contrast, the issues arising under Article 14 taken in conjunction with Article 8 have never been raised before the domestic courts. 60. In conclusion, therefore, the Court rejects the Government ’ s preliminary objection as to the admissibility of the complaints of the applicants other than Ms Carson. It accepts the Government ’ s objection, however, as regards the applicants ’ complaint under Article 14 taken in conjunction with Article 8, which it declares inadmissible. II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL No. 1 A. The Court ’ s general approach 61. The Court has established in its case-law that only differences in treatment based on an identifiable characteristic, or “status”, are capable of amounting to discrimination within the meaning of Article 14 ( see Kjeldsen, Busk Madsen and Pedersen v. Denmark, 7 December 1976, § 56, Series A no. 23 ). Moreover, in order for an issue to arise under Article 14 there must be a difference in the treatment of persons in analogous, or relevantly similar, situations ( see D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 175, ECHR 2007 -IV, and Burden v. the United Kingdom [GC], no. 13378/05, § 60, ECHR 2008). Such a difference in treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The Contracting State enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment ( see Burden, cited above, § 60 ). The scope of this margin will vary according to the circumstances, the subject-matter and the background. A wide margin is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy. Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the Court will generally respect the legislature ’ s policy choice unless it is “manifestly without reasonable foundation” ( see Stec and Others v. the United Kingdom [GC], no. 65731/01 and 65900/01, § 52, ECHR 2006 -VI ). 62. The Court observes at the outset that, as with all complaints of alleged discrimination in a welfare or pensions system, it is concerned with the compatibility with Article 14 of the system, not with the individual facts or circumstances of the particular applicants or of others who are or might be affected by the legislation (see, for example, Stec and Others, cited above, §§ 50-67; Burden, cited above, §§ 58-66; and Andrejeva v. Latvia [GC], no. 55707/00, §§ 74-92, ECHR 2009). Much is made in the applicants ’ submissions and in those of the third - party intervener of the extreme financial hardship which may result from the policy not to uprate pensions and of the effect that this might have on the ability of certain persons to join their families abroad. However, the Court is not in a position to make an assessment of the effects, if any, on the many thousands in the same position as the applicants and nor should it try to do so. Any welfare system, to be workable, may have to use broad categorisations to distinguish between different groups in need (see Runkee and White v. the United Kingdom, nos. 42949/98 and 53134/99, § 39, 10 May 2007). As in the cases cited above, the Court ’ s role is to determine the question of principle, namely whether the legislation as such unlawfully discriminates between persons who are in an analogous situation. B. Whether the facts underlying the complaint fall within the scope of Article 1 of Protocol No. 1 63. The Court notes that Article 14 complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. The application of Article 14 does not necessarily presuppose the violation of one of the substantive rights guaranteed by the Convention. The prohibition of discrimination in Article 14 thus extends beyond the enjoyment of the rights and freedoms which the Convention and Protocols require each State to guarantee. It applies also to those additional rights, falling within the general scope of any Article of the Convention, for which the State has voluntarily decided to provide. It is necessary but it is also sufficient for the facts of the case to fall “within the ambit” of one or more of the Convention Articles (see Stec and Others v. the United Kingdom ( dec. ) [GC], nos. 65731/01 and 65900/01, § 39, ECHR 2005 ‑ X, and Andrejeva, cited above, § 74 ). 64. The Chamber found that although there was no obligation on a State under Article 1 of Protocol No. 1 to create a welfare or pension scheme, if a State did decide to enact legislation providing for the payment as of right of a welfare benefit or pension – whether conditional or not on the prior payment of contributions – that legislation had to be regarded as generating a proprietary interest falling within the ambit of Article 1 of Protocol No. 1 for persons satisfying its requirements ( see the decision in Stec and Others, cited above, § 54). In the present case, therefore, the facts fell within the scope of Article 1 of Protocol No. 1. 65. The Grand Chamber agrees with this finding, which is not, moreover, disputed by the Government. C. Whether “country of residence” falls within the phrase “ or other status” in Article 14 1. The Chamber ’ s conclusions 66. The Chamber held that, in the circumstances of the case, ordinary residence, like domicile and nationality, was to be seen as an aspect of personal status and that place of residence, applied as a criterion for the differential treatment of citizens in the granting of State pensions, was a ground falling within the scope of Article 14. 2. The parties ’ submissions 67. The applicants submitted that the Chamber ’ s conclusion on this point was manifestly correct, for the reasons it gave. Its treatment of residence as an aspect of personal status was also consistent with the approach of “other pre-eminent constitutional courts”, such as the Supreme Court of Canada, which, in Godbout v. Longueuil (City) [ 1997 ] SCR 844, characterised an individual ’ s choice of place of residence as a “quintessentially private decision going to the very heart of personal or individual autonomy”. The applicants further submitted that it was artificial and inaccurate to treat an individual ’ s country of residence as a matter of free choice, since it might be driven by the need or desire to be close to family members. 68. Before the domestic courts, the Government conceded that Ms Carson ’ s foreign residence was a ground protected under Article 14 as falling within the phrase “or other status ” (see paragraphs 28 and 30 above). In their observations before the Court, however, the Government contended that place of residence was not within the concept of “other status”, since it was a matter of choice, rather than an inherent personal characteristic or deeply held conviction or belief. 69. The third - party interveners, Age Concern and Help the Aged, emphasised the importance of family support in old age and referred to research indicating that the existence of family ties outside the United Kingdom could be an important factor in the decision to emigrate. 3. The Court ’ s assessment 70. The Grand Chamber agrees with the Chamber ’ s conclusions on this issue. It has established in its case-law that only differences in treatment based on a personal characteristic (or “status” ) by which persons or groups of persons are distinguishable from each other are capable of amounting to discrimination within the meaning of Article 14 ( see Kjeldsen, Busk Madsen and Pedersen, cited above, § 56). However, the list set out in Article 14 is illustrative and not exhaustive, as is shown by the words “any ground such as” (in French notamment ) (see Engel and Others v. the Netherlands, 8 June 1976, § 72, Series A no. 22). It further notes that the words “other status” (and a fortiori the French equivalent toute autre situation ) have been given a wide meaning so as to include, in certain circumstances, a distinction drawn on the basis of a place of residence. Thus, in previous cases the Court has examined under Article 14 the legitimacy of alleged discrimination based, inter alia, on domicile abroad ( see Johnston and Others v. Ireland, 18 December 1986, §§ 59-61, Series A no. 112) and registration as a resident ( see Darby v. Sweden, 23 October 1990, §§ 31-34, Series A no. 187). In addition, the Commission examined complaints about discrepancies in the law applying in different areas of a single Contracting State ( see Lindsay and Others v. the United Kingdom, no. 8364/78, Commission decision of 8 March 1979, Decisions and Reports 15, p. 247, and Gudmundsson v. Iceland, no. 23285/94, Commission decision of 17 January 1996, unreported). It is true that regional differences of treatment, resulting from the application of different legislation depending on the geographical location of an applicant, have been held not to be explained in terms of personal characteristics (see, for example, Magee v. the United Kingdom, no. 28135/95, § 50, ECHR 2000- VI). However, as also pointed out by Stanley Burnton J (see paragraphs 26-28 above), these cases are not comparable to the present case, which involves the different application of the same pensions legislation to persons depending on their residence and presence abroad. 71. In conclusion, the Court considers that place of residence constitutes an aspect of personal status for the purposes of Article 14. D. Whether the applicants are in a relevantly similar position to pensioners receiving uprating 1. The Chamber ’ s conclusions 72. The Chamber held that, given that the United Kingdom ’ s social security and pension system was primarily designed to provide a minimum standard of living for those resident within its territory, the applicants were not in a relevantly similar position to British pensioners who decided to remain in the country. It was “hesitant ” to find an analogy between the positions of pensioners, such as the applicants, who did not receive uprating and pensioners resident in countries which had concluded bilateral agreements with the United Kingdom providing for uprating. In this connection, it noted that NICs were only one part of the United Kingdom ’ s complex system of taxation and that the National Insurance Fund was one of a number of sources of revenue used to pay for the social security and National Health systems. It did not therefore consider the applicants ’ payment of NICs during their working lives in the United Kingdom to be of any more significance than the fact that they might have paid income tax or other taxes while domiciled there. Moreover, even between States in close geographical proximity, such as the United States of America and Canada, South Africa and Mauritius, or Jamaica and Trinidad and Tobago, differences in social security provision, taxation, rates of inflation, interest and currency exchange made it difficult to compare the respective positions of residents. 2. The parties ’ submissions ( a ) The applicants 73. The applicants contended that they were in a relevantly similar position to United Kingdom pensioners with the same employment and National Insurance records but now living either in the United Kingdom or in countries party to a reciprocal agreement providing for uprating. 74. They adopted the dissenting views expressed by Lord Carswell in the House of Lords and Judge Garlicki in the Chamber and argued that pensioners in each group would have spent a significant part of their working lives in the United Kingdom; all would have made the same NICs for the purpose of obtaining the basic State pension; all would have become entitled to the same amount of basic State pension at pensionable age. The State pension was a true contributory, or earned, benefit in that the level of entitlement was directly related to the number of years over which contributions are made. The United Kingdom authorities had themselves chosen to make the State pension, unlike other welfare benefits, payable to individuals resident abroad. 75. Moreover, regardless of the country of residence, all pensioners would have an identical interest in maintaining their standard of living beyond retirement. There was no evidence of any differences in the social and economic conditions applying in the countries where uprating was paid and those where it was not, nor any evidence that the United Kingdom based its approach on the existence of such differences. 76. It would be wrong to place too great an emphasis on the provisions of the 1952 ILO Convention or the 1964 European Code of Social Security (see paragraph 4 9 above). Both instruments focused on social security systems in general, rather than on contributory pensions in particular; there was no suggestion that either instrument authorised the suspension of some benefits to some individuals resident abroad, but not to others and there was no evidence that the United Kingdom ’ s approach had been informed by either instrument. 77. Under national law, the existence of a reciprocal agreement was not a requirement for the provision of uprated pensions. The existing pattern of reciprocal agreements was arbitrary and seeking to define the class of comparators by reference to their residence in a country with which the United Kingdom had entered into a reciprocal agreement was circular and amounted to no more than a restatement of the differential treatment complained of. 78. Finally, the applicants submitted that no weight should be given to the concession made by Ms Carson ’ s counsel in the domestic proceedings (that Article 14 would not be breached if the State pension was payable only to United Kingdom residents : see paragraph 35 above ). As her counsel had also pointed out later in the same hearing, the fact was that the United Kingdom had decided to adopt a scheme whereby it paid a pension to expatriates in recognition of their contributions and, having adopted such a system, it was irrational not to pay the same amount to everyone. In any event, the concession had been made on behalf of Ms Carson but not the other applicants and had been expressly withdrawn for the purposes of the application before the Court. ( b ) The Government 79. The Government adopted the reasoning and conclusions of the domestic courts and the Chamber. The applicants could not claim to be in an analogous situation to United Kingdom residents. Most national systems of social security and taxation were tailored to the particular country and intended to be national in character, as was recognised by international law. In the United Kingdom, social security benefits, including the State pension, were part of an interlocking system of taxation and social welfare intended to ensure minimum standards of living for those who lived in the country. It was no doubt in recognition of the national character of social security schemes that Ms Carson ’ s counsel agreed in the course of the domestic proceedings that she could have no complaint if the Government had paid no pensions whatever to people who had gone to live abroad (see paragraph 3 5 above). 80. Moreover, even if it could be assumed that inflation was common to all States, it would be artificial to isolate the single factor of inflation from other factors, such as different rates of growth and fluctuations in exchange rates. It would be practically impossible, or at least extraordinarily onerous, to require the State authorities to conduct a cost - of - living/value - based comparison between people living in the United Kingdom and those living in different foreign countries and if a decision were made to pay something to those living abroad, it could not be a finely calibrated amount based on analysis of the cost of living and value of sterling in each country. 81. Focusing simply on the NICs paid by the applicants involved a misleading oversimplification. Contributions required to be made by earners, employers and others to the National Insurance Fund could not properly be equated with or compared to contributions made to a private pension scheme. The National Insurance scheme was a social - insurance scheme, based on a universal pooling of resources. Contribution liability was related to a person ’ s ability to pay rather than to expectation of future entitlement. Not all contributory benefits were payable to non-residents. 82. The Government further contended that the applicants were not in a position analogous to pensioners living in States with which the United Kingdom had entered into reciprocal arrangements. The differences with this comparator group were founded, as the domestic courts at each level recognised, on the fact of reciprocal arrangements either being or not being in place with the relevant foreign State. Those arrangements were concluded in each case on the basis of judgments as to whether the proposed package of arrangements represented an acceptable, advantageous position for the United Kingdom. The applicants ’ argument necessarily involved the proposition that if a bilateral treaty in the social security sphere were entered into and conferred advantages on some people in relation to one or more aspects of social security, those advantages would necessarily have to be conferred on all others, living in all countries. The result would effectively negate the power to enter into bilateral treaties of this kind. 3. The Court ’ s assessment 83. As noted in paragraph 61 above, the Court has established in its case-law that, in order for an issue to arise under Article 14, the first condition is that there must be a difference in the treatment of persons in relevantly similar situations. 84. The applicants ’ principal argument in support of their claim to be in a relevantly similar situation to pensioners who receive uprating is that they also have worked in the United Kingdom and paid compulsory contributions to the National Insurance Fund. However, in common with the national courts and the Chamber, the Grand Chamber considers that the applicants ’ argument misconceives the relationship between NICs and the State pension. Unlike private pension schemes, where premiums are paid into a specific fund and where those premiums are directly linked to the expected benefit returns, NICs have no exclusive link to retirement pensions. Instead, they form a source of part of the revenue which pays for a whole range of social security benefits, including incapacity benefits, maternity allowances, widow ’ s benefits, bereavement benefits and the National Health Service. Where necessary, the National Insurance Fund can be topped-up with money derived from the ordinary taxation of those resident in the United Kingdom, including pensioners (see paragraph 38 above). The variety of funding methods of welfare benefits and the interlocking nature of the benefits and taxation systems have already been recognised by the Court (see the decision in Stec and Others, cited above, § 50). This complex and interlocking system makes it impossible to isolate the payment of NICs as a sufficient ground for equating the position of pensioners who receive uprating and those, like the applicants, who do not. As Lord Hoffmann observed (see paragraph 3 5 above): “ ... from the point of view of the citizens who contribute, National Insurance contributions are little different from general taxation which disappears into the communal pot of the consolidated fund. The difference is only a matter of public accounting. ” 85. The Court does not, therefore, consider that the payment of NICs is alone sufficient to place the applicants in a relevantly similar position to all other pensioners, regardless of their country of residence. Moreover, in relation to the comparison with pensioners living in the United Kingdom, it cannot be ignored that social security benefits, including State pensions, are part of a system of social welfare which exist to ensure certain minimum standards of living for residents of the United Kingdom. The duty imposed on the Secretary of State in the Social Security Administration Act 1992 to review the sums specified for the various benefits covered by the Act, including the State pension, is to determine “whether they have retained their value in relation to the general level of prices obtaining in Great Britain” (see paragraph 41 above). The scheme of the primary legislation is, as the Court of Appeal said, “entirely geared to the impact on the pension of price inflation in the United Kingdom” (see paragraph 30 above). The essentially national character of the social security system is itself recognised in the relevant international instruments, the 1952 ILO Convention and the 1964 European Code of Social Security, which empower the suspension of benefits to which a person would otherwise be entitled for as long as the person concerned is absent from the territory of the State concerned (see paragraph 4 9 above). 86. Given that the pension system is, therefore, primarily designed to serve the needs of those resident in the United Kingdom, it is hard to draw any genuine comparison with the position of pensioners living elsewhere, because of the range of economic and social variables which apply from country to country. Thus, the value of the pension may be affected by any one or a combination of differences in, for example, rates of inflation, comparative costs of living, interest rates, rates of economic growth, exchange rates between the local currency and sterling ( in which the pension is universally paid ), social security arrangements and taxation systems. As the Court of Appeal noted, it is inescapable that the grant of the uprate to all pensioners, wherever they might have chosen to live, would have random effects (see paragraph 30 above). Furthermore, as noted by the domestic courts, as non-residents the applicants do not contribute to the United Kingdom ’ s economy; in particular, they pay no United Kingdom tax to offset the cost of any increase in the pension (see, for example, paragraph 3 5 above). 87. Nor does the Court consider that the applicants are in a relevantly similar position to pensioners living in countries with which the United Kingdom has concluded a bilateral agreement providing for uprating. Those living in reciprocal agreement countries are treated differently from those living elsewhere because an agreement has been entered into; and an agreement has been entered into because the United Kingdom considered it to be in its interests. 88. States clearly have a right under international law to conclude bilateral social security treaties and indeed this is the preferred method used by the member States of the Council of Europe to secure reciprocity of welfare benefits (see paragraphs 50-51 above). Such treaties are entered into on the basis of judgments by both parties as to their respective interests and may depend on various factors, among them the numbers of people moving from one country to the other, the benefits available under the other country ’ s welfare scheme, how far reciprocity is possible and the extent to which the advantages to be gained by an agreement outweigh the additional expenditure likely to be incurred by each State in negotiating and implementing it (see paragraph 44 above). Where an agreement is in place, the flow of funds may differ depending on the level of each country ’ s benefits and the number of people going in each direction. It is the inevitable result of such a process that different conditions apply in each country depending on whether or not a treaty has been concluded and on what terms. 89. The Court agrees with Lord Hoffmann that it would be extraordinary if the fact of entering into bilateral arrangements in the social security sphere had the consequence of creating an obligation to confer the same advantages on all others living in all other countries. Such a conclusion would effectively undermine the right of States to enter into reciprocal agreements and their interest in so doing. 90. In summary, therefore, the Court does not consider that the applicants, who live outside the United Kingdom in countries which are not party to reciprocal social security agreements with the United Kingdom providing for pension uprating, are in a relevantly similar position to residents of the United Kingdom or of countries which are party to such agreements. It follows that there has been no discrimination and, therefore, no violation of Article 14 taken in conjunction with Article 1 of Protocol No. 1. | The Court held that there had been no violation of Article 14 (prohibition of discrimination) of the Convention in conjunction with Article 1 (protection of property) of Protocol No. 1 to the Convention. It found in particular that the applicants’ principal argument that, because they had worked in the United Kingdom and paid compulsory contributions to the National Insurance Fund, they were in a relevantly similar situation to pensioners who received uprating was misconceived. Moreover, as regards the comparison with pensioners living in the United Kingdom, it had to be remembered that the social-security system was essentially national in character with the aim being to ensure certain minimum standards of living for residents there. Nor did the Court lastly consider the applicants to be in a relevantly similar position to pensioners living in countries with which the United Kingdom had concluded a bilateral agreement providing for uprating. |
572 | Cases in which the Court found no violation of Article 4 of Protocol No. 4 | THE LAW ... II. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL No. 4 TO THE CONVENTION 69. The applicant complained of a violation of Article 4 of Protocol No. 4 to the Convention, which provides : “Collective expulsion of aliens is prohibited. ” 70. The Government contested this view. ... B. The merits 1. The parties ’ submissions ( a ) The Government 72. According to the Government, the complaint under Article 4 of Protocol No. 4 was devoid of purpose in so far as the applicant was still on French territory when he submitted the complaint. 73. The Government further claimed that the use by the French authorities of specific flights to transport a number of aliens to their countries of origin was based on practical considerations and could not be analysed as a practice of collective expulsion within the meaning of that provision. The introduction of such flights had been made necessary by the difficulty, and even impossibility, of obtaining seats on scheduled flights towards certain destinations, especially to countries to which there were few scheduled services from French airports. 74. The Government emphasised the legislative guarantees and the supervision exercised by the administrative courts over decisions to expel illegal immigrants, which were always examined on the basis of detailed individual circumstances, and particularly in the light of the alleged risks of a violation of Article 3 in the event of return to the country of origin. Thus, the administrative courts would have no choice but to set aside expulsion orders based on nationality or ethnic origin. 75. The Government considered that in the instant case the French authorities had complied with the Court ’ s case-law ( they referred to Andric v. Sweden ( dec .), no. 45917/99, 23 February 1999, and Čonka [ v. Belgium, no. 51564/99, ECHR 2002-I ] ) since no official statement announcing an intention on the part of the French authorities to conduct collective expulsions had preceded the introduction of reserved flights to Afghanistan and the applicant ’ s request had been responded to in an individualised and personal decision. When he was arrested on 21 September, and again on 14 December 2005, he was notified of a removal order issued against him on 14 December 2005, which concerned him personally and was a consequence of the direction to leave French territory issued to him on 5 July 2004, that is, more than a year previously. 76. Finally, the Government drew attention to the scale of the margin of appreciation enjoyed by the States in organising operations to expel aliens who were unlawfully present on French territory. ( b ) The applicant 77. The applicant submitted that in a large number of cases “grouped flights” were an expedient enabling the Government to return aliens to countries in which the major airlines no longer wished to land for security reasons. He noted that direct flights no longer existed to Somalia, Ethiopia and Afghanistan. In this connection, he stated that the Ministry of Foreign Affairs advised French nationals against travelling to Afghanistan. He also noted that since the “joint return operations” had proved excessively onerous, the police were governed by profitability objectives and were subject to considerable pressure when preparing such flights. 78. Contrary to what was argued by the Government, there was no effective individual and personalised examination of the risks in the event of return to the country of origin and French law provided no effective means of preventing the administrative authorities from carrying out collective expulsions. In this connection, the applicant emphasised the practical difficulties faced by a foreigner seeking to describe a risk of ill-treatment in the event of his or her removal from French territory. Furthermore, the administrative courts did not carry out a genuine individualised check of the lawfulness of the expulsion orders, since they merely validated the negative decisions issued by the OFPRA or the Refugee Appeals Board ... Finally, the administrative courts used the claim that an individualised removal order was issued in respect of every foreigner as a pretext for systematically dismissing arguments alleging a violation of Article 4 of Protocol No. 4. The individual decision, which was purely formal in nature, thus prevented acknowledgment of the collective nature of the removal. 79. In support of his allegations concerning the collective nature of the impugned expulsion order, the applicant submitted several witness statements asserting that the police had arrested a group of Afghans on 14 December 2005. On that occasion, the police officers had allegedly carried out a “selection” by asking the people in the Square de Verdun to specify their nationality, and then arresting only those who were Afghan. 80. The applicant further emphasised the importance of the circumstances preceding the “grouped flight” of 20 December 2005. He claimed that the flight in question had been planned : the Minister of the Interior had announced that it was imminent. Thus, as early as 27 July 2005, one day after a first Anglo-French “charter” flight expelling forty illegal Afghan immigrants, the Minister of the Interior had indicated that other flights were planned. The applicant annexed to his observations an article published on the website of Le Monde newspaper on 6 December 2005, quoting remarks made by the Minister of the Interior to the National Assembly: “ The Prime Minister and I are currently negotiating grouped flights with Iraq, Afghanistan and Somalia, in agreement with our English friends” in order to “return to their countries those people who believe that England is a new Eldorado and who end up in the Pale of Calais with no hope of finding either accommodation or employment. ” 2. The Court ’ s assessment 81. The Court draws attention to its case-law, whereby collective expulsion, within the meaning of Article 4 of Protocol No. 4, is to be understood as any measure compelling aliens, as a group, to leave a country, except where such a measure is taken on the basis of a reasonable and objective examination of the particular case of each individual alien in the group. Thus, the fact that a number of aliens are subject to similar decisions does not in itself lead to the conclusion that there is a collective expulsion if each person concerned has been given the opportunity to put arguments against his expulsion to the competent authorities on an individual basis ( see Andric, cited above ). 82. The Court further points out that, in order for a decision or measure favourable to the applicant to be sufficient to deprive him of his status as a victim, the national authorities must have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention ( see, among many other authorities, Lüdi v. Switzerland, 15 June 1992, § 34, Series A no. 238; Amuur v. France, 25 June 1996, § 36, Reports [ of Judgments and Decisions ] 1996 -III; Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999-VI; and Labita v. Italy [GC], no. 26772/95, § 142, ECHR 2000-IV). It is clear that these conditions were not fulfilled in the instant case, since it appears that the reason the applicant was not expelled on the collective flight of 20 December 2005 was because of the interim measure adopted by the Court on the basis of Rule 39 of its Rules of Court. The Government are therefore mistaken in alleging that the complaint under Article 4 of Protocol No. 4 has become devoid of purpose. 83. With regard to the nature of the examination conducted by the national authorities, the Court notes that, in the instant case, the applicant submitted two asylum requests to the French authorities, including one subsequent to the removal order issued against him. Those requests enabled him to set out the arguments against his expulsion to Afghanistan before the OFPRA and, in the context of the first request, the Refugee Appeals Board. In their decisions rejecting those requests, and particularly the request of 10 January 2006, the domestic authorities took account not only of the overall context in Afghanistan, but also of the applicant ’ s statements concerning his personal situation and the risks he would allegedly run in the event of a return to his country of origin. Accordingly, the Court notes that the applicant ’ s situation was indeed examined individually and provided sufficient grounds for the contested expulsion ( contrast, Čonka, cited above ). 84. In those circumstances, the Court considers that the applicant ’ s deportation from French territory would not amount to a violation of Article 4 of Protocol No. 4. ... | The Court held that there would be no violation of Article 4 of Protocol No. 4 to the Convention if the deportation decision were to be enforced. The French authorities, in their decision to refuse the asylum applications, had taken account of both the overall situation in Afghanistan and the applicant’s statements. The Court therefore found that the applicant’s case had been examined individually and provided sufficient grounds for his deportation. In this case the Court also held that there would be no violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention if the applicant were to be deported. |
486 | Reconciling professional and family life | II. RELEVANT DOMESTIC LAW AND PRACTICE ... 1 8. The relevant provisions of the Institutional Law on the Constitutional Court read as follows: ... Article 55 “1. A judgment granting constitutional protection ( amparo ) shall contain one or more of the following pronouncements: (a) a declaration of nullity of the decision, act or resolution that prevented the full exercise of protected rights and freedoms, specifying, where applicable, the scope of its consequences; (b) recognition of the public right or freedom [concerned] in the light of the constitutional provision relating to its substance; (c) full restoration of the appellant’s right or freedom and adoption, where appropriate, of measures conducive to its preservation; ...” THE LAW ... II. ALLEGED VIOLATION OF ARTICLE 6 § 1 COMBINED WITH ARTICLE 14 OF THE CONVENTION 36. The applicant complained of a violation of her right to a fair hearing within a reasonable time and also that she had been a victim of discrimination on grounds of sex. She further alleged that she had been unable to obtain redress for the violation of her fundamental right as acknowledged by the Constitutional Court. She relied on Articles 6 § 1 and 14 of the Convention, which read as follows: Article 6 “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing within a reasonable time ... by [a] ... tribunal ...” Article 14 “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” 37. The Government disagreed. 38. Since the Court is master of the characterisation to be given in law to the facts of the case, when giving notice of the present case to the parties it considered it appropriate to examine the applicant’s complaint from the point of view of the right of access to a court, of which the execution of a judgment given by any court must be regarded as an integral part (see, among other authorities, Hornsby v. Greece, 19 March 1997, § 40, Reports of Judgments and Decisions 1997 ‑ II). A. The parties’ submissions 39. The Government pointed out that in its judgment of 15 January 2007 the Constitutional Court had found in favour of the applicant and allowed her amparo appeal in respect of her complaint concerning the principle of non ‑ discrimination when in fact, as her child had reached the prescribed age limit by the time the execution proceedings were pending before the Constitutional Court, the applicant was no longer entitled to the reduced working hours she had applied for. In the Government’s submission, the fact that it was materially impossible to execute the Constitutional Court’s judgment did not constitute a violation of the right to a fair hearing in this case, unlike the facts examined in the Hornsby judgment (cited above), which concerned the administrative authorities’ delay in complying with court judgments. 40. As to the alleged infringement of the principle of non-discrimination, the Government submitted that the infringement had been acknowledged and remedied by the Constitutional Court. According to the Government, the principle of subsidiarity precluded the examination by the Court of the alleged violation of a right that had already been found by the domestic courts to have been violated. 41. The applicant, on the other hand, considered that as the Constitutional Court had set aside the judgment of the Madrid Employment Tribunal, no court had examined the merits of her claim. She referred to the Hornsby case cited above, and submitted that the fact that the Constitutional Court had set aside the judgments of the lower court did not suffice to make the proceedings compatible with Article 6 of the Convention. B. The Court’s assessment 42. The right of access to a court cannot oblige a State to have every single civil judgment executed, no matter what the judgment or the circumstances (see Sanglier v. France, no. 50342/99, § 39, 27 May 2003). In the present case the judgment in issue is the Constitutional Court’s judgment of 15 January 2007 which, after finding a violation of the principle of non-discrimination on grounds of sex, set aside the Madrid Employment Tribunal’s judgment of 25 September 2003 and ordered the that court to deliver a new judgment in keeping with the fundamental right in issue (see paragraph 11 above). 43. However, the Madrid Employment Tribunal failed to act on the Constitutional Court’s judgment of 15 January 2007 as required. In a second judgment, of 6 September 2007, the Employment Tribunal considered that the applicant’s request to work fewer hours went beyond the limits authorised by law and that she had not sufficiently justified the need for a reduction in her working hours (see paragraph 12 above). The applicant had thus been obliged to appeal once again to the Constitutional Court. In its decision of 12 January 2009 that court found that its judgment of 15 January 2007 had been incorrectly executed, and set aside the second judgment of the Madrid Employment Tribunal (see paragraph 14 above). 44. The Court reiterates that the State is required to provide litigants with a system whereby they are able to secure the proper execution of domestic court decisions. Its task is to consider whether the measures taken by the national authorities – a judicial authority in the instant case – to have the decisions concerned executed were adequate and sufficient (see Ruianu v. Romania, no. 34647/97, § 66, 17 June 2003), for when the competent authorities are required to take action to execute a judicial decision and fail to do so – or to do it properly – their inertia engages the responsibility of the State under Article 6 § 1 of the Convention (see, mutatis mutandis, Scollo v. Italy, 28 September 1995, § 44, Series A no. 315 ‑ C). 45. The Court observes that in the present case, in its decision of 12 January 2009, the Constitutional Court found a violation of the applicant’s right to the execution of its earlier judgment finding a violation of the principle of non-discrimination. The Court reiterates that a decision or measure in the applicant’s favour is not in principle sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see Brumărescu v. Romania [GC], no. 28342/95, § 50, ECHR 1999 ‑ VII, and Scordino v. Italy (no. 1) [GC], no. 36813/97, § 180, ECHR 2006 ‑ V). It notes that in spite of the two judgments of the Constitutional Court, the violation found by that domestic court has still not been repaired to this day. 46. The Court observes that the applicant’s initial intention was not to seek compensation but to obtain recognition of her right to work reduced hours in order to be able to look after her son before he reached the age of six. Her claim for compensation only came later, when her son was no longer young enough for her to have the right to work shorter hours. 47. In its decision of 12 January 2009 the Constitutional Court refused to award the applicant compensation in this respect and gave no indication as to any possibility of applying to another administrative or judicial body at a later stage. 48. It is true that because of the child’s age when the proceedings ended, it was no longer possible to afford the applicant reparation in kind for the infringement of her right found by the courts. It is not for the Court to tell the respondent State how it should provide for redress in the framework of the amparo appeal. It can only note that the protection afforded by the Constitutional Court proved ineffective in the present case. On the one hand the applicant’s request to work special hours was never answered on the merits, even though the two rulings against her by the Employment Tribunal were set aside. And on the other hand the applicant’s amparo appeal before the Constitutional Court served no purpose as that court found that Article 55 § 1 of the institutional Law on the Constitutional Court made no provision for compensation to redress a violation of a fundamental right. The failure to restore the applicant’s rights in full made the protection afforded by the Constitutional Court’s amparo appeal finding in her favour illusory in the present case. 49. The Court accordingly finds that there has been a violation of Article 6 § 1 in conjunction with Article 14 of the Convention. ... IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 54. Article 41 of the Convention provides “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 55. The applicant claimed EUR 40,986 in respect of non-pecuniary damage. This is the same amount she claimed before the Spanish Constitutional Court. 56. The Government considered that the finding of a violation by the Constitutional Court in itself constituted sufficient just satisfaction in the present case. In any event they did not agree with the assessment criterion used by the applicant to fix the amount claimed. 57. The Court considers that the applicant should be awarded EUR 16,000 in respect of non-pecuniary damage. B. Costs and expenses 58. The applicant claimed EUR 5,760 for the costs and expenses incurred in the proceedings before the Court, which is 12% of the amount she claimed in respect of non-pecuniary damage, but no bills have been produced. 59. The Government noted that this claim was unsubstantiated and considered it inappropriate to award a percentage of the amount awarded in respect of the applicant’s main claim to cover her costs and expenses. They left it to the Court’s judgment to fix the amount to be awarded. 60. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. Furthermore, under Rule 60 § 2 of the Rules of Court itemised particulars of any claim made under Article 41 of the Convention must be submitted, together with the relevant supporting documents or vouchers, failing which the Chamber may reject the claim in whole or in part (see Buscarini and Others v. Saint-Marin [GC], no. 24645/94, § 48, ECHR 1999-I, and Gómez de Liaño y Botella v. Spain, no. 21369/04, § 86, 22 July 2008). In the present case the applicant has failed to submit any invoices to substantiate her claim. The Court accordingly considers that no award should be made under this head and dismisses the claim. C. Default interest 61. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 6 § 1 (right to a fair hearing within a reasonable time) combined with Article 14 (prohibition of discrimination) of the Convention. It found that the violation of the principle of non-discrimination on grounds of sex, as established by the Spanish Constitutional Court’s ruling in favour of the applicant, had never been remedied on account of the non-enforcement of the relevant decision and the failure to provide her with compensation. |
22 | Military presence and political support | II. RELEVANT DOMESTIC LAW 157. The following provisions of domestic law of the Republic of Turkey ( including the “TRNC” ) are relevant for the purposes of the present application. A. Extradition 158. Article 9 § 1 of the former Turkish Criminal Code (Law no.765) provided that: “A request for the extradition to foreign states of a Turkish national on account of a criminal offence cannot be accepted.” 159. On 1 June 2005 a new Criminal Code (Law no. 5237) entered into force. Article 18 § 2 provided as follows: “A citizen cannot be extradited on account of a criminal offence except under the obligations arising out of [Turkey] being a party to the International Criminal Court. ” 160. The Law on International Judicial Cooperation in Criminal Matters (Law no. 6706), which entered into force on 5 May 2016, replaced Article 18 of Law no. 5237. Article 11 § 1 ( a ), concerning the extradition of Turkish nationals, provides as follows: “1. In the circumstances listed below an extradition request shall be rejected: (a) If the person whose extradition is requested is a Turkish citizen, except for the obligations arising out of [Turkey] being a party to the International Criminal Court; ... ” 161. Section 5 of the “TRNC” Law on Extradition of Criminals, Mutual Enforcement of Court Decisions and Judicial Cooperation ( Law 43/ 19 88), in so far as relevant, provides that extradition will be refused when, inter alia, the person whose extradition is sought is a national of the country to which the request is addressed (section 5(1)( C )) [ or ] if the crime that is the subject of the extradition request was committed, wholly or partially, in the requested state or in a place/location under its jurisdiction (section 5(1)( F )). Section 19 of the above -mentioned law provides for the reciprocity principle and states that this law applies in respect of countries which have executed agreements with the “ TRNC ” regarding matters that fall within the scope of this Law, on the basis of reciprocity. B. Criminal jurisdiction of the courts of the “TRNC” 162. Section 31(1) of the “TRNC” Courts of Justice Law (Law no. 9/1976) provides that without prejudice to the constitutional provisions, the appropriate Assize Court has jurisdiction to try, inter alia, offences punishable under the criminal law or any other law which has been committed (a) in the “TRNC” ( section 31(1)( a ); or (b) outside the “TRNC” but on the island of Cyprus ( section 31(1)( b ). 163. Pursuant to section 31(2 )( b ) offences committed outside the island of Cyprus are treated as if they had been committed within the jurisdiction of the “TRNC” Nicosia District Court ( Kıbrıs adası dışında işlenen suçlar Lefkoşa Kaza Mahkemesi yetki alanı içinde işlenmiş sayılır ). III. RELEVANT COUNCIL OF EUROPE INSTRUMENTS A. Extradition 164. The European Convention on Extradition of 13 December 1957 was ratified by Turkey on 7 January 1960 and entered into force in respect of Turkey on 18 April 1960. The four Additional Protocols to the Convention were ratified on 11 July 2016 (the Additional, Third and Fourth Protocols ) and 10 July 1992 (the Second Protocol ) and entered into force in respect of Turkey on 9 October 2016 (the Additional Protocol ), 8 October 1992 (the Second Protocol ) and 1 November 2016 (the Third and Fourth Protocols ). The Turkish Government have made, inter alia, a declaration in respect of the Additional Protocol and the Third and Fourth Additional Protocols concerning the Republic of Cyprus. In this they declared that their ratification of the above Protocols did not amount “to any form of recognition of the Greek Cypriot Administration ’ s pretention to represent the defunct ‘ Republic of Cyprus ’ as party” to these instruments, “nor should it imply any obligations on the part of Turkey to enter into any dealing with the so-called Republic of Cyprus within the framework” of these instruments. 165. This Convention was ratified by and entered into force in respect of Cyprus on 22 April 1971. The three Additional Protocols to the Convention were also ratified on 22 May 1979, 13 April 1984 and 7 February 2014 and entered into force in respect of Cyprus on 20 August 1979, 12 July 1984 and 1 June 2014 respectively. 166. The relevant provisions of this Convention read as follows: Article 6 – Extradition of nationals “ 1. (a) A Contracting Party shall have the right to refuse extradition of its nationals. ... (2) If the requested Party does not extradite its national, it shall at the request of the requesting Party submit the case to its competent authorities in order that proceedings may be taken if they are considered appropriate. For this purpose, the files, information and exhibits relating to the offence shall be transmitted without charge by the means provided for in Article 12, paragraph 1. The requesting Party shall be informed of the result of its request. ” Article 18 – Surrender of the person to be extradited “1.The requested Party shall inform the requesting Party by the means mentioned in Article 12, paragraph 1, of its decision with regard to the extradition. 2. Reasons shall be given for any complete or partial rejection. ...”. Article 27 – Territorial application “1. This Convention shall apply to the metropolitan territories of the Contracting Parties. ” B. Cooperation in criminal matters 1. The European Convention on Mutual Assistance in Criminal Matters 167. The European Convention on Mutual Assistance in Criminal Matters of 20 April 1959 was ratified by Cyprus on 24 February 2000 and entered into force on 24 May 2000. Cyprus ratified the two Additional Protocols on 24 February 2000 and 12 February 2015 respectively; they came into force in respect of Cyprus on 24 May 2000 and 1 June 2015. 168. Turkey ratified the Convention on 24 June 1969. It entered into force in respect of Turkey on 22 September 1969. Turkey ratified the two Additional Protocols on 29 March 1990 and 11 July 2016 respectively; they came into force in respect of Turkey on 27 June 1990 and 1 November 2016. The Turkish Government have made the same declaration as the one they made under the European Convention on Extradition in respect of the second Additional Protocol concerning the Republic of Cyprus (see paragraph 164 above). 169. Article 1 establishes an obligation on Contracting Parties to: “ ... promptly afford each other, in accordance with the provisions of this Convention, the widest measure of mutual assistance in proceedings in respect of offences the punishment of which, at the time of the request for assistance, falls within the jurisdiction of the judicial authorities of the requesting Party”. 170. Article 2 provides that assistance may be refused in the following circumstances: “(a) if the request concerns an offence which the requested Party considers a political offence, an offence connected with a political offence, or a fiscal offence; [or] (b) if the requested Party considers that execution of the request is likely to prejudice the sovereignty, security, ordre public or other essential interests of its country. 171. Article 3 provides that: “1. The requested Party shall execute in the manner provided for by its law any letters rogatory relating to a criminal matter and addressed to it by the judicial authorities of the requesting Party for the purpose of procuring evidence or transmitting articles to be produced in evidence, records or documents. 2. If the requesting Party desires witnesses or experts to give evidence on oath, it shall expressly so request, and the requested Party shall comply with the request if the law of its country does not prohibit it.” 2. The European Convention on the Transfer of Proceedings in Criminal Matters 172. The European Convention on the Transfer of Proceedings in Criminal Matters of 15 May 1972 was ratified by Cyprus on 19 December 2001 and entered into force in respect of Cyprus on 20 March 2002. Turkey ratified the Convention on 22 October 1978 and it entered into force in respect of Turkey on 28 January 1979. The Turkish Government have made a declaration that they do not consider themselves bound to carry out the provisions of the Convention “in relation to the Greek Cypriot Administration, which is not constitutionally entitled to represent alone the Republic of Cyprus”. 173. The relevant provisions of this Convention provide as follows: Article 3 “ Any Contracting State having competence under its own law to prosecute an offence may, for the purposes of applying this Convention, waive or desist from proceedings against a suspected person who is being or will be prosecuted for the same offence by another Contracting State. Having regard to Article 21, paragraph 2, any such decision to waive or to desist from proceedings shall be provisional pending a final decision in the other Contracting State. Article 6 “1. When a person is suspected of having committed an offence under the law of a Contracting State, that State may request another Contracting State to take proceedings in the cases and under the conditions provided for in this Convention. 2. If under the provisions of this Convention a Contracting State may request another Contracting State to take proceedings, the competent authorities of the first State shall take that possibility into consideration.” PROCEEDINGS BEFORE THE COURT 174. By a letter sent on 16 August 2007 the applicants ’ representatives submitted to the Court a letter with the applicants ’ details, an outline of the case and stating their Convention complaints against Cyprus and Turkey. They requested that this letter be considered as constituting a formal introduction of the applicants ’ complaints before the Court and asked the Registry to provide them with an application form. 175. The Court responded, by a letter of 24 August 2007, enclosing an application package. It pointed out: “You must send the duly completed application form and any necessary supplementary documents to the Court as soon as possible and at the latest within six months of the date of the present letter. No extension of this period is possible. If the application form and all the relevant documents are not sent within the above period, the file opened will be destroyed without further warning.” 176. The completed application form was received by the Court on 13 December 2007 and the application was registered. THE LAW I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION TAKEN ALONE AND IN CONJUNCTION WITH ARTICLE 13 177. The applicants complained that there had been a violation of Article 2 of the Convention by both the Cypriot and Turkish (including the “TRNC”) authorities on account of their failure to conduct an effective investigation into the deaths of their relatives, Elmas, Zerrin and Eylül Güzelyurtlu. They pointed to the failure of the respondent States to cooperate in the investigation of the murders and bring the suspects to justice. The applicants contended that where there had been a systemic failure to investigate certain killings after the perpetrators had escaped by crossing a dividing line; the substantive requirement of Article 2 had also been violated, as the domestic laws in place had not protected the right to life. 178. Article 2, in so far as relevant, reads as follows: “1. Everyone ’ s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.” 179. The applicants further complained under Article 13 of the Convention of the lack of an effective domestic remedy in respect of the above. They claimed that the prevailing political problems rendered any existing judicial domestic mechanisms ineffective and prevented any fruitful investigation from taking place. 180. Article 13 reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 181. At the outset, the Court finds that no issue arises in the case under the substantive limb of Article 2 § 1 and that the entirety of the applicants ’ complaints relate in substance to an alleged failure by the authorities of the respondent States to discharge their procedural obligations under that provision. A. Admissibility 182. The Turkish Government submitted that in so far as the application was directed against Turkey the applicants had failed to lodge their application within the six-month time-limit, as required by Article 35 § 1 of the Convention, and that they had not exhausted the domestic remedies available to them. The Cyprus Government submitted that to the extent that the application was directed against Cyprus it was manifestly ill-founded. 183. The Court will examine these pleas below. It first notes, however, that, while the Turkish Government made no plea as to the Court ’ s competence ratione loci to examine the complaints against them, the deaths of the applicants ’ relatives took place in the territory controlled by and under the jurisdiction of the Republic of Cyprus and it must examine this question of its own motion ( see Aliyeva and Aliyev v. Azerbaijan, no. 35587/08, § 56, 31 July 2014, and mutatis mutandis Blečić v. Croatia [GC], no. 59532/00, §§ 67-69, ECHR 2006 ‑ III). 1. In so far as the application is directed against Turkey ( a ) Compatibility ratione loci of the application 184. Article 1 of the Convention provides that: “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention.” 185. “Jurisdiction” under Article 1 is a threshold criterion. The exercise of jurisdiction is a necessary condition for a Contracting State to be able to be held responsible for acts or omissions imputable to it which give rise to an allegation of the infringement of rights and freedoms set forth in the Convention (see Catan and Others v. the Republic of Moldova and Russia [GC], nos. 43370/04, 8252/05 and 18454/06, § 103, ECHR 2012 (extracts), and Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, § 130, ECHR 2011 ). As the Court has emphasised, from the standpoint of public international law, the jurisdictional competence of a State is primarily territorial ( ibid., § 104 and § 131, respectively) and has only extended jurisdiction beyond territoriality in exceptional situations (see Hassan v. the United Kingdom [GC], no. 29750/09, §§ 74-80, ECHR 2014 ). 186. The Court recalls that generally the procedural obligation under Article 2 falls on the respondent State under whose jurisdiction the victim was at the time of death (see Emin and Others v. Cyprus (dec.), nos. 59623/08, 3706/09, 16206/09, 25180/09, 32744/09, 36499/09 and 57250/09, 3 June 2010, and Rantsev v. Cyprus and Russia, no. 25965/04, §§ 243-244, ECHR 2010 (extracts)). Nonetheless, as the Court explained in Rantsev, special elements in a case will justify departure from the general approach (ibid.). Where there are cross-border elements to an incident of unlawful violence leading to loss of life, the fundamental importance of Article 2 requires that the authorities of the State to which the suspected perpetrators have fled and in which evidence of the offence could be located, of their own motion, take effective measures in that regard (see O ’ Loughlin and Others v. the United Kingdom (dec.), no. 23274/04, 25 August 2005, and Cummins and Others v. the United Kingdom (dec.), no. 27306/05, 13 December 2005). Otherwise, those indulging in cross-border attacks will be able to operate with impunity and the authorities of the Contracting State where the unlawful attacks have taken place will be foiled in their own efforts to protect the fundamental rights of their citizens and, indeed, of any individuals within their jurisdiction. 187. In the present case, the Court observes that the suspected perpetrators of the murder of the applicants ’ relatives are or were within Turkey ’ s jurisdiction, either in the “TRNC” ( Cyprus v. Turkey [GC], no. 25781/94, § 77, ECHR 2001 ‑ IV ) or in mainland Turkey. The Turkish and “TRNC” authorities were informed of the crime and Red Notices concerning the suspects were published. These elements engage Turkey ’ s procedural obligation under Article 2 and thus justify departure from the general approach. 188. The Court notes that the “TRNC” authorities instituted their own criminal investigation in the case and that their courts have criminal jurisdiction over individuals who have committed crimes on the whole island of Cyprus ( compare Gray v. Germany, no. 49278/09, 2 2 May 2014, as well as Aliyeva, cited above, § 57 ). 189. In conclusion, the Court finds that the applicants ’ complaints against Turkey are compatible ratione loci with the provisions of the Convention. The extent and scope of the procedural obligation incumbent on Turkey in the circumstances of the case remains to be determined in the Court ’ s assessment of the merits of those complaints. 190. The Court will now turn to the Turkish Government ’ s inadmissibility pleas. (b) Exhaustion of domestic remedies ( i ) Submissions to the Court ( α ) The Turkish Government ’ s submissions 191. The Turkish Government submitted that the “TRNC” law provided civil, administrative and criminal remedies which, however, the applicants had not exhausted before filing their application with the Court. 192. Firstly, the applicants could have brought a civil action against the suspects before the relevant “TRNC” district court under the “TRNC” Civil Wrongs Law. As alleged by the applicants, the suspects in this case had been identified and there was enough evidence linking them to the murder of the applicants ’ relatives. The “TRNC” courts, pursuant to the Courts of Justice Law, had jurisdiction to hear civil cases where the defendant resided or worked in the “TRNC” and where the cause of action arose, in whole or in part, outside the territory of the “TRNC” but on the island of Cyprus (sections 24(1 )( b) and (c) of the “TRNC” Courts of Justice Law). Such an action could be brought by the husband, wife, parent or child of a deceased person who had been entitled at the time of his or her death to recover compensation from the person responsible (section 58(1) of the “TRNC” Civil Wrongs Law). The applicants had not had to wait for the initiation or conclusion of any criminal action before bringing such a civil action. 193. Secondly, the Turkish Government submitted that the applicants could have applied to the “TRNC” Supreme Court, sitting as the Court of Appeal ( Yargıtay ), for an order of mandamus to compel the “TRNC” authorities to cooperate with the Greek Cypriot police in order to secure the prosecution of the suspects in the “TRNC”. Under Article 151 § 3 of the “TRNC” Constitution, the Supreme Court had original jurisdiction to issue such an order. Moreover, the “TRNC” Supreme Court, sitting as the High Administrative Court, also had jurisdiction to order that whatever actions the administrative authority in question had failed to perform must be undertaken. 194. Thirdly, the applicants had had the right to bring a private criminal action against the suspects. On the basis of Article 158(4)(a) of the “TRNC” Constitution the Attorney-General had the power, in the public interest, to take over proceedings in respect of an offence, provided that the necessary evidence collected by the authorities of the other side was brought before the “TRNC” courts by the applicants in a private criminal action. The Government maintained that the applicants had been in a better position to access the evidence required – in respect of both civil and criminal proceedings – than the “TRNC” authorities. For example, the Greek Cypriot police had provided them with a copy of their report dated 17 February 2006. 195. Lastly, the applicants could have complained about a violation of Article 2 of the Convention before those “TRNC” district courts that applied the Convention. ( β ) The applicants ’ submissions 196. Relying on the judgment in Öneryıldız v. Turkey [GC] (no. 48939/99, § 93, ECHR 2004 ‑ XII), the applicants submitted that the failure to prosecute those responsible for endangering life had violated Article 2, irrespective of any other types of remedy which individuals might exercise on their own initiative. Therefore, the Government ’ s submissions concerning civil law remedies were misconceived. Furthermore, bringing their own criminal action had not been a practical option. The case of Öneryıldız constituted authority against such a course of action. Nor had it been open to the applicants to apply for a mandamus as, inter alia, “TRNC” law prohibited the extradition of “TRNC” nationals and therefore such a remedy would not have been effective or sufficient to provide redress. Lastly, they pointed out that all the evidence concerning the case had been provided to the “TRNC” authorities through the Court upon communication of the case in 2008. (ii ) The Court ’ s assessment 197. At the outset, the Court notes that, pursuant to Cyprus v. Turkey, ( cited above, §§ 82 ‑ 102 ) and numerous subsequent judgments (see, for instance, Kyriacou Tsiakkourmas and Others v. Turkey, no. 13320/02, §§ 157-158, 2 June 2015; Kallis and Androulla Panayi v. Turkey, no. 45388/99, § 32, 27 October 2009; Andreou v. Turkey (dec.), no. 45653/99, 3 June 2008; and Adalı v. Turkey, no. 38187/97, § 186, 31 March 2005 ), remedies available in the “TRNC” can be regarded as “domestic remedies” of the respondent State for the purposes of Article 35 § 1 of the Convention and that the question of their effectiveness is to be considered in the specific circumstances in which that question arises. That conclusion is not to be seen as in any way casting doubt on the view of the international community regarding the establishment of the “TRNC” or the fact that the Government of the Republic of Cyprus remained the sole legitimate government of Cyprus. In this connection, the Court had stressed in its Demopoulos and Others decision that “allowing the respondent State to correct wrongs imputable to it does not amount to an indirect legitimisation of a regime unlawful under international law” (see Demopoulos and Others v. Turkey (dec.) [GC], nos. 46113/99, 3843/02, 13751/02, 13466/03, 10200/04, 14163/04, 19993/04 and 21819/04, ECHR 2010 ). Thus, “TRNC” remedies may be taken into account in this context. 198. That said, as regards the Turkish Government ’ s argument that the applicants could have brought a civil action for damages against the suspects in the “TRNC” courts, the Court has repeatedly held that civil proceedings which are undertaken on the initiative of the next of kin, not the authorities, and which do not involve the identification or punishment of any alleged perpetrator, cannot be taken into account in the assessment of the State ’ s compliance with its procedural obligations under Article 2 of the Convention (see, for example, McKerr v. the United Kingdom, no. 28883/95, §§ 121 and 156, ECHR 2001 ‑ III). Otherwise, a Contracting State ’ s obligation under Article 2 of the Convention to conduct an investigation capable of leading to the identification and punishment of those responsible in cases of fatal assault might be rendered illusory if, in respect of complaints under that Article, an applicant would be required to exhaust an action leading only to an award of damages (see among many authorities, Jelić v. Croatia, no. 57856/11, § 64, 12 June 2014, and Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00, §§ 119-121, 24 February 2005). 199. Nor could the applicants be required, taking into account the obligation incumbent on the State authorities to act on their own motion in cases of deaths that occurred in suspicious circumstances ( see Rantsev, cited above, § 232 and Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 111, ECHR 2005 ‑ VII), to bring private criminal proceedings against the suspects, or to apply for an order of mandamus. The Court notes that the “TRNC” authorities opened a criminal investigation ex officio in the case. In the Court ’ s view, this investigation afforded the State an opportunity to put matters right since it could have resulted in the identification and the punishment of those responsible. The applicants were thus not required in addition to embark on any other remedies on the matter (see Haász and Szabó v. Hungary, nos. 11327/14 and 11613/14, § § 30-34, 13 October 2015). 200. Lastly, as regards the argument by the Turkish Government that the applicants should have invoked Article 2 before the “TRNC” courts, the Court notes that this reference is vague and unsubstantiated. 201. In view of the above, the Turkish Government ’ s plea of non-exhaustion must be dismissed. ( c ) Six-month time-limit ( i ) Submissions to the Court ( α ) The Turkish Government ’ s submissions 202. The Turkish Government considered that the application had been introduced outside of the six-month time-limit set by Article 35 § 1 of the Convention. 203. At the outset, the Turkish Government contested the date on which the application had been lodged with the Court. In their view the application had not been introduced on 16 August 2007 but on 7 January 2008, that is to say the date of the Court ’ s stamp on the application form. 204. Alternatively, should the Court consider that the six-month period began to run on 16 August 2007, the delay between date of the initial letter of intent and that of the submission of the application form (7 January 2008) had been such that the beginning of the initial correspondence had ceased to constitute the introduction of the application form. The Turkish Government relied on the decisions in Nee v. Ireland ( (dec.), no. 52787/99, 30 January 2003 ) and J.-P.P v. France ( no. 2212 3/93, Commission decision of 31 August 1994, Decisions and Reports (DR). 79-B, p. 72). They argued that that there were a number of possible starting dates for the six-month period in the present case; all of them, however, had fallen more than six months before the date of the lodging of the above application. 205. In the first place, the applicants had stated in their application form to the Court that it had become clear to them by the second week of February 2005 that the investigation had reached a stalemate. They should have therefore lodged their application by August 2005. Secondly, as could be seen from the letter dated 19 December 2005 sent by their representatives to the UNFICYP spokesman, the applicants must have received legal advice about their right to file an application before the Court before that date. Despite this they had still waited almost three years to lodge their application. Thirdly, in a letter dated 30 November 2006 to the Prime Minister of Turkey, the applicants ’ lawyer had stated that they had exhausted the possibilities for reaching the desired compromise through negotiation and mediation (see paragraph 122 above). In view of the above, and relying on Court ’ s decision in O ’ Loughlin (cited above), the Turkish Government argued that the applicants had realised long before they lodged their application that there would be no further investigation in respect of the case and had already been advised that they had grounds to bring an application to Strasbourg. Any attempts by the applicants to prolong the investigation by appealing to UNFICYP were irrelevant as the latter was not a domestic remedy to be exhausted for the purposes of Article 35 § 1. The applicants ’ representative had been informed of this in a letter dated 23 February 2006 sent to them by the SPA (see paragraph 149 above). ( β ) The applicants ’ submissions 206. The applicants stressed that in the letter of intent that they sent to the Court on 16 August 2007 they had set out their Convention complaints. 207. As for the six-month time-limit, this had not yet started to run in their case as their complaints concerned a continuing situation. Firstly, the criminal investigations were still continuing on both sides. The situation in their case could not be compared to that in O ’ Loughlin (cited above), where the delay in filing the application had been striking, there had not been an on-going murder investigation, and the United Kingdom Government had not been keen to prosecute. The Government of Turkey had admitted in their observations that the case file of the “TRNC” Attorney-General was still open and awaiting the submission of evidence by the Cypriot Government (see paragraphs 101 above and 241 below ). Furthermore, the applicants ’ letters to the President of the “TRNC” and the Prime Minister of Turkey had remained unanswered ( see paragraphs 121 and 122 above ). Secondly, the applicants were in fear of their lives as a result of the failure of the respondent Governments to cooperate and punish the perpetrators of the murders. There had been an attempt to murder the first applicant on 16 July 2007 and his bodyguard had been murdered in May 2009. 208. Lastly, the applicants argued that it had been reasonable to try to get the two sides to cooperate before lodging an application with the Court. ( ii ) The Court ’ s assessment ( α ) Date of introduction of the application 209. According to the Court ’ s case-law, as applicable at the relevant time, the date of introduction of an application was as a rule considered to be the date of the first communication from the applicant indicating an intention to lodge an application and giving some indication of the nature of the application (see Oliari and Others v. Italy, nos. 18766/11 and 36030/11, § 89, 21 July 2015 with further references). This was on the condition that a duly completed application form was then submitted within the time ‑ limit fixed by the Court (see, for instance, Kemevuako v. the Netherlands (dec.), no.65938/09, §§ 19-20, 1 June 2010). Such a first communication, which at the time could take the form of a letter sent by fax, would in principle interrupt the running of the six-month period (see Oliari and Others, cited above, § 89). 210. In the instant case, the first communication indicating the intention to lodge a case with the Court (together with the object of the application ) was sent by the applicants ’ representatives on 16 August 2007 (see paragraph 174 above). A completed application followed, in accordance with the instructions given by the Registry (see paragraphs 175 and 176 above ). The date of introduction in respect of the application was thus 16 August 2007. 211. It remains to be determined whether the application complies with the six-month rule. ( β ) Compliance with the six-month time-limit 212. As a rule, the six-month period runs from the date of the final decision in the process of exhaustion of domestic remedies. Where it is clear from the outset, however, that no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of, or from the date of knowledge of that act or its effect on or prejudice to the applicant ( see Mocanu and Others v. Romania [GC], nos. 10865/09, 45886/07 and 32431/08, § 259, ECHR 2014 (extracts), with further references). 213. In cases of a continuing situation, the period starts to run afresh each day and it is in general only when that situation ends that the six ‑ month period actually starts to run (ibid., § 261). However, where time is of the essence in resolving the issues in a case, there is a burden on the applicant to ensure that his or her claims are raised before the Court with the necessary expedition to ensure that they may be properly, and fairly, resolved ( ibid., § 262 ). This is particularly true with respect to complaints relating to any obligation under the Convention to investigate certain events. As the passage of time leads to the deterioration of evidence, time has an effect not only on the fulfilment of the State ’ s obligation to investigate but also on the meaningfulness and effectiveness of the Court ’ s own examination of the case. An applicant has to become active once it is clear that no effective investigation will be provided, in other words once it becomes apparent that the respondent State will not fulfil its obligation under the Convention ( ibid., § 261). 214. The Court has held in cases concerning the obligation to investigate under Article 2 of the Convention that where a death has occurred, applicants ’ relatives are expected to take steps to keep track of the investigation ’ s progress, or lack thereof, and to lodge their applications with due expedition once they are, or should have become, aware of the lack of any appropriate redress, including effective criminal investigation (see Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § 158, ECHR 2009, with further reference therein). In particular, as regards cases of unlawful or violent death, the Court has indicated that an applicant should bring such a case to the Court within a matter of months, or at most, depending on the circumstances, a few years after the events in question ( ibid., § 162). Where there is an investigation of sorts, even if plagued by problems, the Court accepts that applicants may reasonably wait for developments which could potentially resolve crucial factual or legal issues (ibid., §166). It is in the interests of not only the applicant but also the efficacy of the Convention system that the domestic authorities, who are best placed to do so, act to put right any alleged breaches of the Convention. 215. Applying those principles to the facts of the present case, the Court notes that following the death of their relatives on 15 January 2005 two parallel investigations were taken up by the Cypriot Government and the “TRNC” authorities. In the initial year and a half or so the investigations were intensive and there was a strong involvement on the part of UNFICYP to find a solution. The applicants were in contact with all the authorities concerned and UNFICYP in their efforts to help the investigations progress. Although it appears that the applicants started to lose hope because of the lack of cooperation by the two sides, the Court considers that it was reasonable for the applicants to wait for the ongoing investigations and the mediation via UNFICYP to yield results. Nor can it be said that the applicants waited unduly before introducing their complaints before the Court on 16 August 2007, two years and seven months after the death of their relatives. At the time that they lodged their application with the Court the Cypriot Government ’ s investigation was still continuing. As for the investigation in the “TRNC” no date has been given as to when the file of the case was classified as “non-resolved for the time being ”. This must, however, have been after 22 March 2007, for – as can been seen from the “TRNC” Police Chief Inspector ’ s report – investigative steps were taken on that date (see paragraph 99 above). There is no indication that the applicants were informed at the time of this development in the investigation. In any event, the application was still filed within six months of the above date. 216. In the light of the above, the Court finds that there was no lack of due diligence on the part of the applicants in lodging their application and that the Turkish Government ’ s plea concerning the timeliness of the applicants ’ complaints must also be dismissed. 2. The well-foundedness of the application 217. The Court considers that the applicants ’ complaint under Article 2 of the Convention raises serious questions of fact and law in respect of both respondent States which are of such complexity that their determination should depend on an examination on the merits. It cannot, therefore, be considered manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, and no other ground for declaring it inadmissible has been established. It must therefore be declared admissible, along with the related complaint under Article 13. B. Merits 1. Submissions of the parties (a) The applicants (i) With regard to the scope of the procedural obligation of the Respondent States 218. The applicants submitted that the crux of the problem was the persistent refusal of the respondent States to cooperate. This stemmed primarily from the fact that the Turkish Government did not recognise the Cypriot Government, and the latter in turn did not recognise the “TRNC”. All the authorities concerned had obstinately clung to their respective positions : the Cypriot Government had not been prepared to provide the “TRNC” with any evidence and had insisted on the surrendering of the suspects for trial in their courts; the “TRNC” had not been prepared to cooperate unless all evidence was provided and the suspects were prosecuted and tried in its own courts. As a result of this failure, despite cogent and compelling evidence, the perpetrators had not been punished. 219. The applicants submitted that there was a duty on States to cooperate with investigations held outside their jurisdiction or areas under their control. This arose from the primary obligation States had under Articles 1 and 2 of the Convention. When jurisdictions overlapped or were concurrent, Member States were under an obligation to cooperate in order to secure the right to life of persons within their jurisdictions. A finding that there was no such obligation would result in a “vacuum” of protection within the “legal space of the Convention” of the right to life (relying, mutatis mutandis, on Cyprus v. Turkey, cited above, § 78). 220. Referring to the principles established under Article 2 (relying, inter alia, on Angelova and Iliev v. Bulgaria ( no. 55523/00, § § 91-98, 26 July 2007 ) the applicants argued that the obligation to cooperate entailed (i) the duty to take steps to accommodate overlapping jurisdictions, and (ii) to have in place effective law- enforcement machinery that deterred the commission of life-endangering offences, dealt with extradition and/ or the ad hoc rendition of fugitive offenders and made provision for mutual assistance in their apprehension and punishment. Relying on O ’ Loughlin (cited above) the applicants submitted that the normal way to secure evidence and take measures in relation to suspected fugitive offenders was through early cooperation between the police and prosecutors of the States in question. This required establishing lines of communication and an exchange of information and evidence. 221. By way of example the applicants referred to the Guidance for Handling Criminal Cases with Concurrent Jurisdiction Between the United Kingdom and the United States of America (published in January 2007). This prescribed a three-stage approach: first, the early sharing of information between investigators and prosecutors, second, consultation between prosecutors, and third, in the event of failure to reach an agreement, the taking up of the issues by the State ’ s respective law officers with the aim of resolving them. The applicants also cited the European Convention on Mutual Assistance in Criminal Matters, to which both respondent States were parties, pursuant to which Member States had undertaken to provide each other with the widest measure of mutual assistance in criminal matters. 222. There was also an equivalent negative obligation on States not to have laws and practices that rendered extradition, rendition or mutual assistance impossible. 223. Here the respondent States ’ failure to cooperate had led to a gap in the protection of a fundamental human right. The respondent States were more concerned with their political agendas than with their obligations under Article 2. If there had been political will, a solution could have been found – for example, as in the Lockerbie case, the trial could have been held at a neutral venue ( The High Court of Justiciary (Proceedings in the Netherlands) (United Nations) Order 1998; (S.I. 1998 No. 2251) and United Nations Security Council Resolution 1192 of 27 August 1998 on the Lockerbie case). 224. The applicants also maintained that the respondent States had failed to comply with their obligations both under the European Convention on Extradition and under the European Convention on Mutual Assistance in Criminal Matters. (ii ) With regard to the responsibility of the Cypriot Government 225. Relying on Ilaşcu and Others v. Moldova and Russia ([GC], no. 48787/99, §§ 331-335, ECHR 2004 ‑ VII), the applicants argued that although the Cypriot Government were prevented from exercising effective control over the “TRNC” they still had a positive obligation under Article 1 of the Convention to secure for the applicants the rights guaranteed by the Convention. The existence of an unlawful breakaway administration did not absolve a state from its obligations under Articles 1 and 2. The Cypriot Government ’ s unwillingness to cooperate with any of the “TRNC” law enforcement agencies, directly or even indirectly through UNFICYP, and provide them with any evidence concerning the case, had been in violation of their procedural obligation to conduct an effective investigation within the area in which they had effective control (relying on Ilaşcu, cited above, §§ 331-335). They had further failed in their free- standing obligation to disclose to the applicants all witness statements taken by the authorities during the investigation (referring to Hugh Jordan v. the United Kingdom, no. 24746/94, 4 May 2001). 226. In the applicants ’ view, disclosing evidence to the “TRNC” police in order to enable the prosecution of the perpetrators did not in law amount to recognition of or support for the “TRNC” (relying on Ilaşcu, cited above, §§ 345-346). Nor did international law prohibit cooperation in police matters with unrecognised police entities. Indeed, police forces frequently had to cooperate with people they preferred not to have dealings with. The reasoning of the Court in its judgment in Cyprus v. Turkey (cited above, § 98) concerning the “TRNC” courts could be equally applied to the “TRNC” police. The applicants requested the Court to rule that providing evidence to enable the arrest of fugitive murderers did not imply recognition of the “TRNC” or that any such implication should be treated de minimis. 227. The applicants blamed the attitude of the Cypriot Government. It was evident that initially the “TRNC” authorities had not been averse to handing over the suspects for trial but their attitude had hardened following the Cypriot Government ’ s refusal to deal with them. Handing over the evidence would have secured at least the continued detention of the suspects. As the Cypriot Government had refused to provide the evidence, the “TRNC” authorities had not been able to take the requisite steps to hand over the suspects. 228. The argument of the Cypriot Government that they were not under an obligation to take measures vis-à-vis a separatist administration by surrendering part of their sovereignty in respect of crimes committed on their territory was not compatible with the principles established by the Court in Ilaşcu. The importance the Cypriot Government had attached to the safeguarding of its sovereignty had been disproportionate, bearing in mind the enormity of the crime and the non-derogatory nature of the right to life. Furthermore, they were a Contracting State to the 1972 European Convention on the Transfer of Proceedings in Criminal Matters and had agreed in principle to request other countries to prosecute persons suspected of having committed offences within the Cypriot Government ’ s jurisdiction. 229. Moreover, the applicants submitted that it was their counsel who had repeatedly raised the absence of evidence in writing of an extradition request at a meeting with the Attorney-General at his office in August 2008. The extradition requests had been made following this meeting. They pointed out that the Cypriot Government had not explained the delay in requesting the suspects ’ extradition following the issuance of the international arrest warrants. The manner in which the requests had been made was also questionable. (iii) With regard to the responsibility of the Turkish Government 230. Turkey had concurrent extra-territorial jurisdiction under Article 1 of the Convention as it exercised effective control of the “TRNC” and therefore had responsibility for the stance taken by the “TRNC” in the case ( Loizidou v. Turkey (merits), 18 December 1996, § 52, Reports of Judgments and Decisions 1996 ‑ VI ). This entailed a heavy obligation under Articles 1 and 2 of the Convention not to impede any murder investigation by another State in order to ensure that a safe haven was not created for murder suspects who had fled. There was also a positive obligation to cooperate fully in any such murder investigation ( relying on Ilaşcu, cited above, § 317). By refusing to engage at all with the Cypriot Government and to deal with the extradition requests, Turkey had been in breach of her procedural obligation under Article 2. 231. The applicants considered that the “TRNC” authorities had been wrong to claim the right to conduct a rival primary investigation knowing that they had no access to the locus delicti; it had been bound to be ineffective and doomed to fail in limine. The investigation conducted in the “TRNC” had not been genuine and had apparently been aimed at obtaining confessions. Furthermore, although there had been no indication that the evidence would be handed over, the “TRNC” authorities ’ insistence on holding a trial had only aggravated the situation. 232. Even though the “TRNC” authorities had received the evidence in the case through the Court following communication of the case in October 2009, they had not taken any action. Furthermore, following the murder of the first applicant ’ s bodyguard, two of the suspects had been in the hands of the “TRNC”. They should have been questioned about their involvement in the murder and asked to account for the presence of their DNA at the scene of the crime. The first suspect had given a statement on oath to the effect that he had been involved in the killings. Despite the Kyrenia Assize Court ’ s request that the evidence be referred to the “TRNC” Attorney-General no steps had been taken by the authorities. There had also been ballistic evidence establishing that the gun used in the murder of the first applicant ’ s bodyguard had been the same as the one that had been used in the attempt to kill the first applicant. Consequently, the applicants submitted that the “TRNC” authorities had evidence enabling them to start a prosecution for the murder of their relatives. The authorities ’ claim that they had not been able to do so due to the failure of the Cypriot Government to provide evidence had simply been an excuse and had been politically motivated. 233. It could not be ignored that the “TRNC” was an illegal entity and not recognised in international law. Its domestic laws on extradition and jurisdiction in respect of crimes committed outside its jurisdiction rendered it a safe haven for fugitive murderers. There was thus a clear lack of a legislative and administrative framework deterring the commission of murders in the areas controlled by the Cypriot Government. Furthermore, both the European Convention on Extradition and the European Convention on Mutual Assistance in Criminal Matters, to which Turkey was a party, applied to northern Cyprus, which came under Turkey ’ s effective control and lay within the Council of Europe ’ s espace juridique and thus its “metropolitan areas”. Turkey had not denounced these Conventions or made a reservation in respect of the “TRNC”. 234. Furthermore the Turkish Government could not argue that a trial in the Republic of Cyprus would be unfair due to the composition of the bench. (b) The Cypriot Government 235. The Cypriot Government submitted that they had taken all measures that had been within their power to secure the applicants ’ rights under Article 2. 236. The authorities had carried out an extensive investigation, which had included, inter alia, complete post - mortem, forensic and DNA examinations, the examination of a large number of exhibits found and collected from the scene of the crime and the victims ’ house, the tracing and questioning of numerous witnesses and obtaining statements from them, and the inspection of computer hard discs. The investigation had resulted in the identification of eight suspects. The authorities had been in contact with UNFICYP ’ s representatives for the purpose of negotiating with the “TRNC” authorities for the handing over of the suspects to the Republic. Information and evidential material had been transmitted to the “TRNC” authorities through UNFICYP for this purpose, domestic and international arrest warrants had been issued, and extradition requests had been made to the Turkish Government. 237. As the crime had been committed on the territory under its control, the Cypriot Government submitted that they had jurisdiction to try the suspects, both under domestic and international law. Under international law, the principal ground for the exercise of original jurisdiction was that of territoriality. The Court had acknowledged this in its judgment in the case of Rantsev (cited above, § 206). Furthermore, they also had jurisdiction under international law on the basis of both the active and the passive nationality principle: the victims had been and the suspects were members of the Republic ’ s Turkish Cypriot community and nationals of the Republic; the victims had had their ordinary residence in territory controlled by the Republic. Consequently, no question arose of overlapping or concurrent jurisdiction to try the crime between the Republic of Cyprus and Turkey and/or the separatist local administration in the Republic ’ s occupied territory. 238. The procedural obligation incumbent on the Cypriot Government under Article 2 did not include an obligation to cede part of its sovereignty and part of its legal right as a State to prosecute and try crimes committed on its territory to the authorities of a separatist local administration. Such an obligation was not compatible with the principles established in the Ilaşcu case (cited above, §§ 339-340). In that case the cooperation measures taken by the Moldovan authorities had been of a limited character and thus were not regarded as constituting support for the Transdniestrian regime. The present case was not comparable. It was not a matter of simple police cooperation. Abandonment of the principle would have undermined its efforts to re-establish control over northern Cyprus and the administration of criminal justice with regard to crimes committed on its territory not under military occupation by Turkey. A duty to cooperate could not impose an unreasonable, impossible or disproportionate burden on the authorities of the States concerned. 239. To the extent that the applicants relied on the European Convention on Mutual Assistance in Criminal Matters, they pointed out that assistance might be refused if the requested party considered that execution of the request was likely to prejudice the sovereignty, security, public order or other essential interests of its country. Thus they could rightly decline to hand over evidential material. Similarly, the European Convention on the Transfer of Proceedings in Criminal Matters was not relevant, as the Republic had never waived its right to prosecute and try the suspects. 240. As Turkey had effective control over northern Cyprus, there was a two-fold obligation on Turkey firstly to surrender the suspects, and secondly to communicate all relevant information concerning the suspects and the commission of the crime in order to assist the Republic ’ s efforts in bringing the suspects to justice. The “TRNC” authorities and Turkey, however, had failed to take any action to surrender the suspects. In particular the “TRNC” authorities had rejected a proposal by the Attorney-General of the Republic for all the evidence to be handed over to UNFICYP for it to determine whether it disclosed a prima facie case against the suspects, subject to an undertaking to surrender them if UNFICYP were to conclude that such evidence existed. Furthermore, the Turkish Government had failed to consider the extradition requests and to inform the Republic of a decision with reasons for their rejection as required by the European Convention on Extradition. Nor had they communicated any information or taken any steps to assist in any way the criminal investigation carried out by the Republic ’ s authorities. In fact the Cypriot Government had not been informed of any official investigation in northern Cyprus concerning the killings. The applicants had acknowledged this in their application to the Court. The Turkish Government had also failed to disclose to both the Court and the applicants developments in the case, and in particular, new evidence that had come to light following the statement that the first suspect gave during the murder trial of the first applicant ’ s bodyguard (see paragraphs 104-106 above ). (c ) The Turkish Government 241. The Turkish Government submitted that the “TRNC” authorities had conducted an in-depth investigation of the case. They had carried out a thorough examination of the evidence, and several statements had been collected from the suspects, possible suspects and various witnesses, over a considerably short space of time. The “TRNC” authorities had been willing to prosecute the suspects. They believed that the Greek Cypriot authorities would be handing over evidence enabling them to proceed with a trial. Their own investigation had not produced sufficient evidence to institute criminal proceedings. All eight suspects had been arrested and held in detention. Their detention had been extended by the appropriate “TRNC” courts a number of times. However, in the absence of adequate evidence, the authorities had not been able to apply under the relevant domestic law for the suspects ’ further detention on remand. As a result, the case file remained open, with the “TRNC” Attorney-General waiting for the evidence to be submitted by the Greek Cypriot authorities. When a copy of the investigation file had been received through the Court, the “TRNC” police authorities had questioned again the first and second suspects, who had not admitted their involvement in the incident. The cooperation of the Cypriot Government was still needed in order to ensure that witnesses, including the persons who had prepared the various reports in the investigation file, appeared before the “TRNC” courts to give evidence in court. 242. The “TRNC” authorities had worked closely with all concerned. They had held numerous meetings with UNFICYP in their efforts to ensure cooperation and the exchange of information on the murders. Seven meetings had been held between 24 January 2005 and 5 April 2005 which had dealt exclusively or in part with the case. They had made it clear that they did not have sufficient evidence to keep the suspects in custody and had warned UNFICYP that they would have to release them if such evidence was not secured. The Cyprus authorities had flatly rejected any cooperation between the two sides on the basis that this would have amounted to the recognition of the “TRNC”. 243. In so far as Turkey was concerned, the Turkish authorities had been informed of the search of the suspects by Greek Cypriot Interpol and had conducted inquiries into their identities. The fifth suspect – a Turkish national – had been arrested when he had entered Turkey following notification by Greek Cypriot Interpol. He had been questioned but as the authorities had not had any evidence to link him to the crime and in the absence of any extradition requests they had released him. The fifth suspect could have been prosecuted in Turkey if the file with the evidence had been provided. The Mersin public prosecutor had also requested the “TRNC” authorities for the investigation file concerning the first four suspects in order to evaluate the case with a view to prosecuting the fifth and seventh suspects. It had, however, been impossible to obtain the file from the Greek Cypriot authorities. 244. The Turkish Government pointed out that cooperation with the “TRNC” did not amount to its recognition. For instance, the “TRNC” authorities had cooperated with the United Kingdom authorities in criminal matters to ensure that criminals could be tried. The Turkish Government referred to a case as an example – that of Attorney - General v. Ozgay Yorgun ( “TRNC” Nicosia Assize Court, case no. 5719/99; TRNC” Supreme Court, appeal no. 67/99) – in which the United Kingdom authorities had provided witnesses and evidence for the prosecution of the suspects. 245. The Turkish Government maintained that to the extent that the applicants argued that the Court should impose an additional obligation on Turkey under Article 2 to comply with the European Convention on Extradition they had misunderstood the Court ’ s case-law. The applicants were in essence inviting the Court to create new obligations which were not already provided for in the Convention but were allegedly provided for under other international instruments. However, the main issue before the Court was the application of the Convention and not that of other bilateral or international instruments. 246. Even if the Court had decided to broaden its interpretation of Article 2 to include obligations under the European Convention on Extradition and European Convention on Mutual Assistance in Criminal Matters, the territorial applications of these Conventions only covered the metropolitan territories of Turkey, which did not include the “TRNC” (Article 27 § 1 of the European Convention on Extradition). Turkey had not entered and could not enter into a direct agreement with two or more Contracting Parties to extend its territories to the “TRNC” (Articles 25 (1) and 27(4)). Neither the Vienna Convention of 23 May 1969 on the Law of Treaties or any other Convention gave a different interpretation of “metropolitan territories”. The ordinary meaning was clear and there was no need to look into secondary meanings. Extradition was based on treaty law and did not constitute an obligation on States in customary law. 247. The Turkish Government emphasised that there were two separate legal regimes: the “TRNC” and Turkey. Extradition, mutual enforcement of judgments and judicial cooperation in the “TRNC” was regulated by Law No. 43/88. Under that law the “TRNC” could not extradite its own nationals and was obliged to reject a request for the extradition of its nationals from any foreign country, including Turkey. Furthermore, the “TRNC” was obliged to refuse extradition when the crime that was the subject matter of the extradition request had been committed fully or partly within its territory or where the “TRNC” courts had jurisdiction. Under the Courts of Justice Law the “TRNC” Assize Courts had jurisdiction to try the suspects as the crime had been committed on the island of Cyprus (section 31 (1)(b)). To the extent that the applicants relied on what had been said by the Deputy Prime Minister of the “TRNC” in the meeting of 26 January 2005 with UNFICYP officials (see paragraph 141 above) concerning the possible surrender of the suspects, the Turkish Government clarified that what was meant was that the “TRNC” Attorney-General would review the evidence without excluding the possibility that the “TRNC” courts would apply other relevant domestic laws, as well as any other obligations regarding the non-extradition of citizens and human rights considerations, in order to effect this exchange. The Turkish Government stressed that the refusal of the Cypriot Government to submit the evidence gathered in the case had been based on purely policy, and not legal, grounds. The “TRNC” ‘ s decision to refuse to extradite, however, had been made on legal grounds. 248. In so far as Turkey was concerned, pursuant to Article 6 of the European Convention on Extradition, Turkey had the right not to extradite its own nationals. Extradition was a procedure which depended on the conditions laid down both in domestic law and the above -mentioned Convention. Each country had its own legal provisions concerning extradition. 249. In any event, the Turkish Government submitted that the extradition of the suspects could not have taken place for a number of reasons. Firstly, the necessary evidence had not been provided to the “TRNC” or Turkish authorities. Secondly, the extradition of the suspects for trial would have resulted in a violation of Articles 3, 5, 6 and 13 of the Convention due to the lack of proper judicial guarantees. In particular only Greek - Cypriot judges tried cases, which was contrary to the requirements of independence and impartiality under Article 6 of the Convention. Furthermore, as illustrated by Denizci and Others v. Cyprus, nos. 25316-25321/94 and 27207/95, ECHR 2001 ‑ V, Turkish Cypriot accused persons had sometimes been harassed by the Greek Cypriot authorities. 250. As regards the criminal proceedings against the first and second suspects for the murder of the first applicant ’ s bodyguard the Turkish Government stated that nothing had come to light in those proceedings that could have a decisive influence on their Convention obligations in the present application. The first suspect ’ s statement regarding his co-defendant, the second suspect, had been of doubtful evidential value. It had been confusing and unclear. Furthermore, he had retracted the statement in the course of the trial. He had not made any statements to the police, and indeed the Attorney - General ’ s office when reviewing the file had concluded that even if the first suspect had not retracted his statement, there had still not been enough evidence to bring charges against those suspects who had not admitted their involvement in the crime. 251. To the extent that the applicants complained under Article 13, there had been no breach of this provision as it had not been possible to bring the perpetrators to justice because of the refusal of the Cypriot Government to hand over the evidence in the case. (d) Third - party submissions by the AIRE Centre 252. The AIRE Centre noted that historically, agreements between Member States of the Council of Europe requiring cross-border cooperation in fighting crime had been intended to advance inter-governmental objectives, rather than focusing on the victim. This had been the case with the 1959 European Convention on Mutual Assistance in Criminal Matters and the 1990 Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crimes. 253. This had, however, changed recently with the 2005 Convention on Action against Trafficking in Human Beings and the 2007 Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse. These Conventions had shifted the emphasis in inter-governmental cooperation in criminal matters to fulfilling States ’ obligations towards the victims of human rights violations. Both Conventions were victim-centred and mandated cross-border cooperation “to the widest extent possible”. This shift in emphasis also reflected a growing consensus amongst the Member States of the Council of Europe that inter-governmental cooperation in criminal matters had to be approached from an ECHR perspective, that is to say it had to address the rights and needs of those who were victims. 254. At the level of the European Union, various provisions had been adopted to ensure cross-border cooperation between Member States. There had been an evolution from an inter-governmental model of cooperation towards an approach where cooperation contributed to the fulfilment of human rights obligations. The Council of the European Union had adopted various measures designed to ensure cross-border cooperation: the European Arrest Warrant, created by Framework Decision 2002/584/ JHA, and the European Evidence Warrant, created by Framework Decision 2008 / 978 / 1JHA. Both instruments were designed to operate in such a manner as to comply with the requirements of the ECHR (recitals 13 and 27 respectively). Furthermore, they both provided for an exception to the rule of double criminality for certain offences specifically listed in the Framework Decisions. These included the offences of murder, rape, arson, and sexual exploitation of children, which involved acts contrary to Articles 2, 3, 4 and 8 of the Convention. Such acts created obligations for the State on whose territory the crime had been committed, but also for the State within whose jurisdiction evidence or persons crucial to an effective investigation could be found. The AIRE Centre submitted that the positive obligations arising under the above -mentioned instruments mandated some level of confidence on the part of Contracting Parties either between each other or with other States so as to make essential cooperation in investigating acts contrary to those Articles possible. This was necessary to ensure that the rights guaranteed under the Convention were not theoretical and illusory but practical and effective ( İlhan v. Turkey [GC], no. 22277/93, § 91, ECHR 2000- VII). European Union law demonstrated a developing European consensus that inter-governmental cooperation in criminal matters had to be approached from a human rights perspective. 255. The AIRE Centre highlighted the numerous international law instruments providing for cross-border cooperation in criminal matters inside or outside of Europe. These included the United Nations Convention Against Transnational Organized Crime (2000), to which both Cyprus and Turkey were parties; the Inter-American Convention on Mutual Assistance in Criminal Matters (1992) and Additional Protocol (1993); the Inter-American Convention on the Taking of Evidence Abroad (1975) and Additional Protocol (1984); the ASEAN Treaty on Mutual Legal Assistance in Criminal Matters (2004); the Economic Community of West African States Convention on Mutual Assistance in Criminal Matters (1992); and the Mutual Assistance Pact between Member States of the Economic Community of Central African States (2002). 256. In conclusion, the AIRE Centre underlined the prevalence in European and international law of agreements relating to mutual assistance in criminal investigations. In Europe in particular there appeared to be a trend requiring cross-border cooperation when the offences raised issues under Articles 2, 3 and/or 4 of the Convention. This trend placed obligations on States to investigate such offences which had taken place outside their jurisdiction, if persons or evidence of importance to the investigation were within their territory. 2. The Court ’ s assessment (a) General principles 257. The Court reiterates that the obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State ’ s general duty under Article 1 of the Convention to “ secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force. The investigation must be, inter alia, thorough, impartial and careful (see Mustafa Tunç and Fecire Tunç v. Turkey [GC], no. 24014/05, § 169, 14 April 2015 ). 258. By requiring a State to take appropriate steps to safeguard the lives of those within its jurisdiction, Article 2 imposes a duty on that State to secure the right to life by putting in place effective criminal-law provisions to deter the commission of offences against the person, backed up by law-enforcement machinery for the prevention, suppression and punishment of breaches of such provisions. This obligation requires by implication that there should be some form of effective official investigation when there is reason to believe that an individual has sustained life-threatening injuries in suspicious circumstances, even where the presumed perpetrator of the fatal attack is not a State agent (ibid. , § 171). 259. In order to be “effective” as this expression is to be understood in the context of Article 2 of the Convention, an investigation must firstly be adequate. That is, it must be capable of leading to the establishment of the facts and, where appropriate, the identification and punishment of those responsible ( ibid. , § 172). The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record of injury and an objective analysis of clinical findings, including the cause of death. This obligation may include taking steps to secure relevant evidence located in other jurisdictions (see Rantsev, cited above §§ 241 and 245) or where the perpetrators are outside its jurisdiction, to seek their extradition (see Agache and Others v. Romania, no. 2712/02, § 83, 20 October 2009; see also, in relation to Article 3, Nasr and Ghali v. Italy, no. 44883/09, §§ 270-272, 23 February 2016). 260. Any deficiency in the investigation which undermines its capability of establishing the circumstances of the case or the person responsible will risk falling short of this standard (see Nachova, cited above, § 113 ). 261. The procedural obligation also requires that persons responsible for the investigations should be independent of anyone implicated or likely to be implicated in the events ( Mustafa Tunç, cited above, § 177); it imposes a requirement of promptness and reasonable expedition (ibid. , § 178); and in addition, it means that the investigation must be accessible to the victim ’ s family to the extent necessary to safeguard their legitimate interests (ibid. , § 179). (b) Application of the general principles to the present case 262. As the applicants ’ relatives ’ deaths took place in the territory controlled by the Republic of Cyprus and under that State ’ s jurisdiction, a procedural obligation arises in respect of Cyprus to investigate the death of the applicants ’ relatives. Furthermore, the Court has already ruled that Turkey ’ s procedural obligation is also engaged in the circumstances of the case (see paragraphs 187 and 189 above). 263. As observed above two parallel investigations were conducted into the killing of the applicants ’ relatives by the authorities of the Cypriot Government and the Turkish Government, including those of the “TRNC” (see paragraph 215 above). The applicants ’ complaint under Article 2 is twofold: firstly, they have a number of grievances concerning the respective investigations; secondly, they complain about the failure of respondent Governments to cooperate, resulting in an impasse in both their investigations and as a result in the investigation of the case as a whole. (i) The respective investigations 264. The Court will first address the applicants ’ criticisms of the respective investigations carried out by the authorities of the respondent States. It notes at the outset that the applicants have not called into question the independence of the investigations and that on the basis of the material before it no such issue arises. ( α ) Cyprus 265. It is undisputed that the investigation into the killing of the applicants ’ relatives started promptly and that numerous urgent and indispensable investigative steps were taken immediately upon the discovery of the victims ’ bodies. The police arrived quickly and sealed off the scene. A detailed on-the- spot investigation was conducted by the police and a forensic pathologist. An investigation was held on the same day at the victims ’ house, which was also secured and sealed off. Video recordings were made and photographs were taken during both on ‑ site inspections. Complete post-mortem examinations, during which photographs were taken and a video recording and a diary of action were made, were conducted the next day to determine the cause of the victims ’ death (see paragraphs 13 - 20 above). 266. In the framework of the investigation the Cypriot authorities, inter alia, collected and secured evidence, took statements from numerous witnesses, including the victims ’ relatives, carried out a ballistic examination and DNA tests, searched the records of vehicles that had gone through the crossing points, and examined the security system of the victims ’ house and computer hard discs (see paragraphs 21, 26, 28, 30 and 44 above). The investigative steps quickly led to the identification of eight suspects, the issuance of domestic and European arrest warrants and the publication of Red Notices following requests by the Cypriot police to Interpol (see paragraphs 27, 31, 35, 37 - 40 above ). The suspects were all added to the Cypriot Government ’ s “ stop list ” (see paragraphs 32 and 42 above ). It appears from the documents in the case file that the investigation was extended to the British bases and areas not controlled by the Cypriot Government (see paragraph 47 above). 267. On 24 April 2008 the case file was classified as “ otherwise disposed of” pending the arrests of the remaining suspects (see paragraphs 48 and 49 above ). 268. Following this, on 19 May 200 8, the case was transferred to the coroner and inquest proceedings were opened (see paragraph 50 above ). Despite contradictory submissions as to what happened at the first hearing, it is not contested that the applicants were informed of the inquest which the first applicant attended and that they were informed of the outcome (see paragraphs 50 and 120 above ). 269. The authorities arrested the eighth suspect when he crossed over to the Government controlled areas on 12 July 200 6 but had to release him for lack of evidence linking him to the crime. According to the police report, some of the allegations that had been made by him during questioning required further investigation in the “TRNC ” (see paragraph 45 above ). 270. The last step taken by the Cypriot authorities was on 4 November 2008, when extradition requests were made to Turkey concerning the six persons that remained suspects in the case (see paragraphs 55 - 57 above). No further steps have been taken since then pending the suspects ’ arrest. 271. The applicants ’ grievances against the Cypriot authorities in so far as their investigation is taken in isolation are twofold : they concern the extradition requests and the applicants ’ access to the investigation documents. 272. First, the applicants questioned whether the extradition requests had been made properly and complained about the delay on the part of the Cypriot authorities in making them. The Court notes that there is no indication that the requests were not made correctly or through the right channels. It is true that they were made more than three and half years after the issuance of the Red Notices. However, in the context of this particular case, this did not constitute any significant obstacle. It was clear very early on, following the publication of the Red Notices, that neither the Turkish nor the “TRNC” authorities were intending to surrender the suspects (see paragraphs 41, 127, 130 and 150 above). The extradition requests were simply returned to the Cypriot authorities without reply. Although both respondent States are Member States to the European Convention on Extradition there was no extradition treaty between them ( contrast Nasr and Ghali, cited above, § 271, 23 February 2016). Nor can the Cypriot Government be held liable for Turkey ’ s refusal to extradite (see Nježić and Štimac v. Croatia, no. 29823/13, § 65, 9 April 2015, and Palić v. Bosnia and Herzegovina, no. 4704/04, § 68, 15 February 2011). 273. Second, the applicants complained that the Cypriot authorities had not provided them with the evidence they had collected in the case, including all witness statements taken during the investigation. The Court reiterates that Article 2 does not require applicants to have access to police files, or copies of all documents during an ongoing inquiry, or for them to be consulted or informed about every step ( see, for example, Gürtekin and Others v. Cyprus, (dec.) nos. 60441/13 et al., § 29, 11 March 2014, and Charalambous and Others v. Turkey (dec.), nos. 46744/07 et al. , § 64, both with further references). It emphasises in this respect that disclosure or publication of police reports and investigative materials may involve sensitive issues with possible prejudicial effects on private individuals or other investigations and, therefore, cannot be regarded as an automatic requirement under Article 2 (see Gürtekin, § 29, cited above, and Ramsahai and Others v. the Netherlands [GC], no. 52391/99, § 347, ECHR 2007 ‑ II). Similarly, the investigating authorities cannot be required to indulge every wish of a surviving relative as regards investigative measures ( ibid., § 348, and Velcea and Mazăre v. Romania, no. 64301/01, § 113, 1 December 2009). However, the Court must examine whether the applicants were afforded access to the investigation to the extent necessary to safeguard their legitimate interests (see Giuliani and Gaggio v. Italy [GC], no. 23458/02, § 311, ECHR 2011 (extracts) ). 274. As can be seen from the material in the case file, the applicants were involved in the investigation from the very beginning. Meetings were held with the Cypriot police and the Attorney-General and the applicants received information from them (see paragraphs 44, 107 - 108, 111 - 112 and 114 - 116 above). They were informed of the progress in the investigation and of the inquest proceedings, which the first applicant attended (see paragraphs 50 and 120 ). They also received a police report about the case upon their request (see paragraph 117 above). The Court is thus not persuaded in the present case that the applicants were excluded from the investigative process to such a degree as would infringe the minimum standard under Article 2. 275. In reality the applicants ’ grievance stems from the refusal of the Cypriot authorities to transmit the case file to the “TRNC” authorities and their wish to remedy the situation. It is therefore intertwined with their complaint concerning lack of cooperation and will be examined in that context. ( β ) Turkey 276. The “TRNC” authorities reacted quickly following news of the murders and opened an investigation immediately on 17 January 2005, when the victims ’ bodies were taken to the “TRNC”. A statement was taken from the first applicant (see paragraph 64 above ). By the end of January 2005 all the suspects had been arrested on the basis of arrest warrants issued by the relevant “TRNC” district courts ( see paragraphs 65 - 87 above). The houses of the seven suspects who lived in the “TRNC” were searched on the basis of search warrants (see paragraphs 72 and 82 above). Statements were taken from the suspects, who were remanded in custody until their release on or around 11 February 2005 due to lack of evidence connecting them to the murders (see paragraph 92 above). The “TRNC” authorities also questioned another person whom they had identified as another possible suspect ( see paragraph 95 above). During the investigation statements were taken from the suspects and the applicants, as well as other persons who knew or were somehow connected to the suspects. Evidence was also collected (see paragraph 97 above). 277. Following his release from detention in the “TRNC”, the fifth suspect was arrested and questioned in Turkey on 15 February 2005. He was subsequently released, as the Turkish authorities did not have enough evidence to link him to the crime (see paragraph 94 above ). 278. Following the suspects ’ release, very few steps were taken by the “TRNC” authorities. Sometime after 22 March 2007 the file was classified as “non- resolved for the time being ” (see paragraphs 99 - 100 above). After that, nothing happened until February 2010, when the first and second suspects were questioned again by the “TRNC” police; the authorities subsequently received a copy of the Cypriot investigation file through the Court. This, however, did not lead to anything (see paragraph 102 above). Furthermore, following a statement made by the first suspect during his and the second suspect ’ s trial for the murder of the first applicant ’ s bodyguard, the “TRNC” Attorney-General reviewed the investigation file but there was still not enough other evidence to justify prosecution ( see paragraphs 104 - 105 above). 279. The applicants complained that the “TRNC” authorities had refused to investigate or prosecute the suspects. They also complained of a failure on the part of the “TRNC” authorities to take any steps, firstly when they had eventually obtained a copy of the file through the Court and secondly in respect of new evidence that had come to light during the trial of the first and second suspects in the above -mentioned proceedings (see paragraph 278 above). 280. It is evident from the material provided that the “TRNC” authorities carried out a substantial amount of work; thus, the Court finds little substance in the applicants ’ claim that they refused to investigate. They arrested and detained all suspects; even though the first four suspects were originally arrested in respect of charges related to theft and forgery, those charges were amended to premeditated murder (see paragraphs 65, 67, 68, 71, 74 and 75 above). The investigation did not result in any prosecutions because of a lack of evidence. Whilst it must be frustrating for the applicants that suspects were identified, arrested, questioned and then released, Article 2 cannot be interpreted as imposing a requirement on the authorities to launch a prosecution irrespective of the evidence which is available ( Nježić and Štimac, § 69, and Gürtekin, § 27, both cited above ). As the Court has held on numerous occasions, the procedural obligation under Article 2 is not an obligation of result, but of means (see Armani Da Silva v. the United Kingdom [GC], no. 5878/08, § 233, ECHR 2016). In this connection the Court notes that the suspects all denied involvement in the crime and the investigation carried out did not result in evidence linking them to the crime. Furthermore, although certain steps were taken by the “TRNC” authorities following the communication of the case and the trial of the first and second suspects, these did not lead to solid new evidence on which to base a prosecution. The “TRNC” and Turkish authorities had limited evidence at hand, as the crime was committed in the territory controlled by the Cypriot Government. In order to prosecute the suspects, the “TRNC” and Turkish authorities needed reliable evidence that would be admissible in a court. (γ) Conclusion 281. It is clear from the above that the authorities of the respondent States took a significant number of investigative steps promptly. The Court perceives no shortcomings that might call into question the overall adequacy of the respective investigations in themselves. The Court considers, however, that there is no need to make a finding under Article 2 on this matter, in view of the following. ( ii ) The procedural obligation and the lack of cooperation between the respondent States 282. The Court observes that both investigations reached a stalemate and the respective files were held in abeyance, pending further developments. Following the return of the extradition requests by Turkey on 24 November 2008 the Cypriot investigation came to a complete halt; the Cypriot Government still await the re-arrest and surrender of the suspects so they can try them. Similarly, the “TRNC” classified the file as “non-resolved for the time being” some time in 2007. Since then nothing concrete has been done. Although the first and second suspects were questioned again in 2010 this did not lead to anything. The Turkish Government are still waiting for all the evidence in the case to be handed over so they can try the suspects. Consequently, although the investigations remain open nothing has happened for more than eight years. All efforts through UNFICYP have proved fruitless due to the persistence of the respondent States in maintaining their respective positions. 283. There have been a few cases in which the Court has considered the extent of the procedural obligation in a cross-border or transnational/ transjurisdictional context. 284. In O ’ Loughlin (cited above) the applicants complained under Article 2 of the Convention that the United Kingdom authorities had failed to assist in the investigations and the inquests carried out in Ireland into the deaths resulting from the Dublin and Monaghan bombings of 17 May 1974. The suspects were in Northern Ireland. The Court stated that it did not have to decide whether, or to what extent, Article 2 could impose an obligation on one Contracting State to cooperate with inquiries or hearings conducted within the jurisdiction of another Contracting State concerning the use of unlawful force resulting in death, as the relevant complaint had been filed outside the six-month time-limit. Shortly afterwards, in Cummins (cited above), which concerned bombings in Dublin in December 1972 and January 1973, the Court declared similar complaints against the United Kingdom to be manifestly ill-founded, as a failure to cooperate with the investigations into the deaths and injuries had not been established. Since these decisions, in its judgment in Rantsev, the Court found that the corollary of the obligation on an investigating State to secure evidence located in other jurisdictions was a duty on the State where evidence was located to render any assistance within its competence and means sought under a legal assistance request by the State in which the death occurred ( Rantsev, cited above, § 245). It therefore found that the procedural obligation under Article 2 required the Cypriot authorities to seek assistance from Russia and that Russia had a corresponding obligation to assist the Cypriot authorities due to the fact that certain evidence had been located on its territory. The Court has therefore acknowledged that the procedural obligation under Article 2 mandates cooperation between states in securing available evidence. 285. The Court reiterates that in assessing whether there has been a violation of Article 2 in its procedural aspect, it will examine if the domestic authorities have done all that could be reasonably expected of them in the circumstances of the particular case (see, for example, Nježić and Štimac, cited above, § 68 ). In circumstances such as those of the present case, where the investigation of the unlawful killing unavoidably implicates more than one State, the Court finds that this entails an obligation on the part of the respondent States concerned to cooperate effectively and take all reasonable steps necessary to this end in order to facilitate and realise an effective investigation into the case overall. Such a duty is in keeping with the effective protection of the right to life as afforded by Article 2, which ranks as one of the most fundamental provisions in the Convention (see, among other authorities, Nachova, cited above, § 93). Indeed, any other finding would severely diminish the purpose of the protection guaranteed by Article 2 and render illusory the guarantees in respect of an individual ’ s right to life as any real possibility of elucidating the circumstances of the killing and bringing the perpetrators to justice would be hampered and lead to impunity for those responsible. The Convention is a system for the protection of human rights and it is of crucial importance that it is interpreted and applied in a manner that renders these rights practical and effective, not theoretical and illusory (see Varnava, cited above, § 160). 286. This is also consistent with the position taken by the relevant Council of Europe instruments which mandate inter-governmental cooperation in order to prevent and combat transnational crimes more effectively and to punish the perpetrators. The Court reiterates in this respect that it has never considered the provisions of the Convention as the sole framework of reference for the interpretation of the rights and freedoms enshrined therein. The Court further observes that it has always referred to the “living” nature of the Convention, which must be interpreted in the light of present-day conditions, and that it has taken account of evolving norms of national and international law in its interpretation of Convention provisions (see Rantsev, cited above, §§ 273-74 and Demir and Baykara v. Turkey [GC], no. 34503/97, §§ 6 5-68, 12 November 2008). 287. The nature and scope of the cooperation required by the States involved in meeting their procedural obligation under Article 2 will, inevitably, depend on the circumstances of the particular case. 288. To begin with, the Court stresses that it is not competent to review the Contracting Parties ’ compliance with instruments other than the European Convention on Human Rights and its Protocols, even if other international treaties may provide it with a source of inspiration it has no jurisdiction to interpret the provisions of such instruments (see Mihailov v. Bulgaria, no. 52367/99, § 3 3, 21 July 2005). It has no competence, therefore, to determine whether the respondent States have complied with their obligations under the European Convention on Extradition and the European Convention on Mutual Assistance, as the applicants suggest. 289. Furthermore, it is not for the Court to indicate which measures the authorities should take in order for the respondent States to comply with their obligations most effectively. The Court ’ s role is to verify that the measures actually taken were appropriate and sufficient in the circumstances of the case before it. It is not therefore for the Court to decide where the trial of the suspects should have taken place or to impose an obligation on a Member State to extradite. When faced with a partial or total failure to act, the Court ’ s task is to determine to what extent a minimum effort was possible and whether it should have been made ( see Ilaşcu, cited above, § 334). 290. It is clear from all the material before the Court, including the 2005 UN Secretary-General ’ s report on the UN operation in Cyprus (see paragraph 153 above ), that the respondent Governments were not prepared to make any compromise on their positions and find middle ground. This position arose from political considerations which reflect the long-standing and intense political dispute between the Republic of Cyprus and Turkey (see, mutatis mutandis, Demopoulos, cited above, § 83). 291. On the Cypriot Government ’ s side it is evident that what drove the unwillingness to cooperate was the refusal to lend (or the fear of lending ) any legitimacy to the “TRNC”. However, the Court does not accept that steps taken with the aim of cooperation in order to further the investigation in this case would amount to recognition, implied or otherwise of the “TRNC” (see Cyprus v. Turkey, cited above, §§ 61 and 238 ). Nor would it be tantamount to holding that Turkey wields internationally recognised sovereignty over northern Cyprus (see, mutatis mutandis, Demopoulos, cited above, §§ 95-96, and Foka v. Turkey, no. 28940/95, § § 83 -84, 24 June 2008 ). The United Kingdom, for example, has cooperated in criminal cases with the “TRNC” (see paragraphs 150 and 244 above) without affording it any recognition. 292. On the other hand, as the Government of the Republic of Cyprus remains the sole legitimate government of Cyprus (see Cyprus v. Turkey, cited above, §§ 14, 61 and 90), it finds it striking that the extradition requests made by the Cypriot Government were ignored by the Turkish Government, who have remained silent on the matter. 293. Although the respondent States had the opportunity to find a solution and come to an agreement under the brokerage of UNFICYP, they did not use that opportunity to the full. Any suggestions made in an effort to find a compromise solution or that the authorities concerned meet each other half way were met with downright refusal on the part of those authorities. The options put forward have included meetings on neutral territory between the Cypriot and “TRNC” police, UNFICYP and the Sovereign Base Areas police, the questioning of the suspects through “ the video recording interview method ” at the Ledra Palace Hotel in the UN buffer zone, the possibility of an ad hoc arrangement or trial at a neutral venue, the exchange of evidence (under certain conditions), and dealing with the issue on a technical services level (see paragraphs 131 - 133, 136, 137, 140 and 151 above). While a number of bi-communal working groups and technical committees have been set up – including one on criminal matters (see paragraphs 154 - 156 above) – it appears that none of these committees has taken up the present case with the purpose of furthering the investigation. 294. As a result of the respondent States ’ failure to cooperate, their respective investigations remain open and nothing has been done for more than eight years. In that regard, the Court would stress that the passage of time inevitably erodes the amount and quality of evidence available and the appearance of a lack of diligence casts doubt on the good faith of the investigative efforts (see Trubnikov v. Russia, no. 49790/99, § 92, 5 July 2005). Moreover, the very passage of time is liable to compromise the chances of investigation being completed (see M.B. v. Romania, no. 43982/06, § 64, 3 November 2011). It also prolongs the ordeal for the members of the family (see Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 86, ECHR 2002 ‑ II). 295. In the present, ultimately straightforward, case a considerable amount of evidence was collected and eight suspects were quickly identified, traced and arrested. The failure to cooperate directly or through UNFICYP resulted in their release. If there had been cooperation, in line with the procedural obligation under Article 2, criminal proceedings may have ensued against one or more of the suspects or the investigation may have come to a proper conclusion. 296. In view of the above, the Court finds that there has been a violation of Article 2 of the Convention under its procedural aspect by virtue of the failure of the respondent Governments to cooperate. 297. Having regard to the above conclusion, the Court is of the opinion that there is no need to examine separately the applicants ’ complaint under Article 13 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 298. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 1. Pecuniary damage (a) The parties ’ submissions (i) The applicants 299. The applicants claimed 40,000 euros (EUR) in respect of pecuniary damage. This sum represented the expenses incurred by the first applicant to protect his life : home security, the employment of a bodyguard ( who was murdered in 2009 ), travel expenses in respect of trips abroad following the attempt on his life and legal expenses incurred in proceedings that were brought against him for possessing a firearm in defence of his person. The applicants submitted that the above -mentioned sum had been calculated on “a rough and ready basis”, as they did not have any documents proving the expenses claimed. (ii) The Cypriot Government 300. The Cypriot Government did not comment on this head of claim. (iii) The Turkish Government 301. The Turkish Government submitted that there was no causal connection between the pecuniary damage claimed and the subject matter of the application, which had nothing to do with the first applicant ’ s right to life. (b) The Court ’ s assessment 302. The Court finds that the applicants ’ claim for pecuniary damage is unsubstantiated. It therefore rejects this claim. 2. Non-pecuniary damage (a) The parties ’ submissions (i) The applicants 303. In respect of non-pecuniary damage the applicants claimed the total sum of EUR 8 00,000 – EUR 4 0 0,000 from each respondent Government. This sum was composed of a claim in respect of each Government for EUR 100,000 by the first applicant and EUR 50,000 by each of the other applicants. 304. The applicants stressed how much unbearable anguish, pain, trauma and frustration they had suffered due to the gravity of the crime against their family and the failure of the authorities of the respondent Governments to cooperate and bring the perpetrators to justice. The applicants underlined that they had been treated with utter insensitivity and indifference. They invited the Court to condemn the callous attitude of the respondent Governments through the award of a substantial amount, even though this could not make up for the huge loss they had suffered. Furthermore, as a result of the respondent Governments ’ failure to investigate, apprehend, prosecute and punish those responsible for the murders, all the applicants, and in particular the first applicant, feared for their lives and lived in a permanent state of fear and anxiety. There had been an attempt on the first applicant ’ s life and his bodyguard had been murdered. He had also had to act as a conduit between the various authorities in the days and months immediately after the killings as they had not been cooperating. It was for these reasons that the first applicant ’ s claim under this head was higher. (ii) The Cypriot Government 305. The Cypriot Government contested the applicants ’ claims and submitted that they were excessive, bearing in mind the Court ’ s case-law. In this connection they referred to the case of Rantsev (cited above, § 342 ). (iii) The Turkish Government 306. In the Turkish Government ’ s submission the Court should refuse to make any award in respect of non-pecuniary damage as there was no violation to be compensated for. If the Court, however, were to find otherwise the finding of a violation would constitute in itself sufficient just satisfaction in respect of the alleged non-pecuniary damage. In any event, any just satisfaction should not lead to unjust enrichment. The sums claimed by the applicants were excessive, unjust and not compatible with those awarded by the Court in similar cases. They drew the Court ’ s attention to the amounts awarded in the cases of Solomou and Others v. Turkey, no. 36832/97, § 101, 24 June 2008, Isaak v. Turkey, no. 44587/98, § 139, 24 June 2008, and Kakoulli v. Turkey, no. 38595/97, § 140, 22 November 2005 ). (b) The Court ’ s assessment 307. The Court notes that it has found a violation of Article 2 under its procedural head on account of the Respondent Governments ’ failure to cooperate and thus provide an effective investigation into the death of the applicants ’ relatives. It also notes that it has found that no separate issue arises under Article 13 of the Convention. 308. As a result of the violation found the applicants suffered non-pecuniary damage which cannot be made good merely by the finding of a violation. 309. Regard being had to the reasons for which it has found a violation and the circumstances of the case, the Court, ruling on an equitable basis, as required by Article 41 of the Convention, decides that an award of EUR 8, 5 00 should be paid by each respondent Government to each of the applicants, plus any tax that may be chargeable on these amounts. B. Costs and expenses 1. The parties ’ submissions (a) The applicants 310. The applicants claimed a total of 40,000 pounds sterling (GBP) in respect of their lawyers ’ fees. The applicants submitted that this was the amount they had agreed upon with their lawyers and produced a letter of engagement (in which their lawyers ’ fee was stipulated) dated 5 December 2005, which had been signed by the fourth applicant. According to this agreement, the above -mentioned amount was broken down as follows: a fee of GBP 20,000 for all the work carried out by their representatives before the authorities of the respondent Governments and UNFICYP; and the total sum of GBP 20,000 for the costs and expenses incurred before the Court in the event that an application was made. In this respect, the agreement stipulated that each stage of the proceedings would cost a total of GBP 7,000: the first stage comprised the filing of the application; the second stage comprised work to be done for the preparation of pleadings in the event that the application was declared admissible and for any negotiations for a friendly settlement; the third stage, failing a settlement, comprised the preparation of the observations and/or representation at a hearing of the case. The total of GBP 21,000 was rounded down to GBP 20,000. No VAT would be chargeable. (b) The Cypriot Government 311. The Cypriot Government submitted that the applicants claimed costs which had not been necessarily incurred, were not reasonable as to quantum and were not substantiated by receipts. They therefore considered that their claim under this head should be rejected. (c) The Turkish Government 312. The Turkish Government submitted that the amounts claimed on the basis of the fee agreement were speculative or abstract and unsubstantiated. No timetable accounting for the actual work carried out had been submitted, and neither had any receipts or documents proving these costs been submitted. They referred to the Court ’ s judgment in Mohd v. Greece (no. 11919/03, §§ 29-32, 27 April 2006). In any event, the applicants could not claim costs incurred at the domestic level, while the amount claimed in respect of lodging the application form before the Court was excessive. 2. The Court ’ s assessment 313. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. Rule 60 of the Rules of Court further requires that an applicant submit itemised particulars of all claims, together with any relevant supporting documents. 314. The Court notes that the fee agreement, which was signed only by the fourth applicant before the lodging of the application, only refers to aggregate sums that have not been itemised. No reference is made to the specific work actually carried out, the number of hours worked and the hourly rate charged. The applicants have failed to provide any other supporting documents – such as itemised bills or invoices – substantiating their claim. 315. The Court accordingly makes no award under this head. C. Default interest 316. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court stressed that Turkey’s responsibility under the Convention could not be confined to the acts of its own soldiers and officials operating in northern Cyprus but was also engaged by virtue of the acts of the local administration (“the TRNC”), which survived by virtue of Turkish military and other support. Turkey, therefore, had jurisdiction under the Convention. |
799 | Verbal and / or physical harassment | II. RELEVANT DOMESTIC LAW A. The Constitution 1. Relevant provisions 61. The relevant provisions of the Constitution of the Republic of Croatia ( Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998 (consolidated text), 113/2000, 124/2000 (consolidated text), 28/2001 and 41/2001 (consolidated text), 55/2001 (corrigendum) and 76/2010) read as follows. Article 14 “Everyone in the Republic of Croatia shall enjoy rights and freedoms regardless of their race, colour, sex, language, religion, political or other belief, national or social origin, property, birth, education, social status or other characteristics. All shall be equal before the law.” Article 21 “Every human being has the right to life. ...” Article 23 “No one shall be subjected to any form of ill-treatment ... ...” Article 35 “Everyone has the right to respect for and legal protection of his or her private and family life, dignity, reputation and honour.” Article 140 “International agreements in force which were concluded and ratified in accordance with the Constitution and made public shall be part of the internal legal order of the Republic of Croatia and shall have precedence in terms of their legal effects over the [domestic] statutes. ...” 2. The Constitutional Court’s jurisprudence 62. In its decisions nos. U-I-892/1994 of 14 November 1994 (Official Gazette no. 83/1994) and U-I-130/1995 of 20 February 1995 (Official Gazette no. 112/1995) the Constitutional Court held that all rights guaranteed in the Convention and its Protocols were also to be considered constitutional rights having equal legal force to the provisions of the Constitution. B. The Criminal Code 63. The relevant part of the Criminal Code ( Kazneni zakon, Official Gazette no. 110/1997) reads as follows: Article 10 “Criminal legislation is not applicable in respect of a child who at the time when he or she committed a criminal offence was not yet 14.” C. The Minor Offences Act 64. The relevant part of the Minor Offences Act ( Prekršajni zakon, Official Gazette no 107/2007) reads as follows: Section 9 “(1) A person who at the time when a minor offence was committed was not yet 14 is not liable for the minor offence. (2) When a person under subsection 1 of this section frequently behaves in a manner which amounts to serious minor offences, the State body competent to act shall inform that person’s parents or guardians and the competent social welfare centre of the person’s behaviour. (3) A parent of ... a person to whom subsection 1 of this section applies shall be punished for a minor offence committed by that person where the minor offence committed is directly connected to failure to supervise that person ...” D. The Administrative Disputes Act 65. The Administrative Disputes Act ( Zakon o upravnim sporovima, Official Gazette of the Socialist Federal Republic of Yugoslavia no. 4/1977, and Official Gazette of the Republic of Croatia nos. 53/1991, 9/1992 and 77/1992 – in force until 31 December 2011) in its relevant part provided as follows: Section 66 “A request for the protection of a constitutionally guaranteed right or freedom ... if such a right or freedom has been violated by a final individual act [that is, decision], and no other judicial protection is secured, shall be decided by the [Administrative Court], by applying, mutatis mutandis, the provisions of this Act.” 66. Sections 67 to 76 provide for special proceedings for the protection of constitutionally guaranteed rights and freedoms from unlawful factual (physical) acts of public officials where no other judicial remedy is available. Under the case-law of the domestic courts, the protection against unlawful “acts” also includes omissions (for example, the Administrative Court, in its decision no. Us-2099/89 of 21 September 1989, and the Supreme Court, in its decision no. Gž-9/1993 of 6 April 1993, held that failure of the administrative authorities to carry out their own enforcement order constituted an “unlawful act” within the meaning of section 67 of the Administrative Disputes Act). 67. Under section 67 such proceedings are to be instituted by bringing an “action against an unlawful act” ( tužba za zaštitu od nezakonite radnje ) in the competent municipal court. The action must be brought against the public authority to which the factual act (or omission) is imputable (the defendant). 68. Under section 72 the action is to be forwarded to the public authority concerned for a reply within the time-limit set by the court conducting the proceedings. However, a decision may be adopted even without such a reply where the submissions made in the action provide a reliable basis for the decision. 69. Section 73 provides that the court decides on the merits of the case by a judgment. If it finds in favour of the plaintiff, the court orders the defendant to desist from the unlawful activity and, if necessary, orders restitutio in integrum. 70. Section 74 provides that in proceedings following an “action against an unlawful act” the court is to apply, mutatis mutandis, the provisions of the Civil Procedure Act. E. The Civil Obligations Act 71. The relevant part of the Civil Obligations Act ( Zakon o obveznim odnosima, Official Gazette nos. 35/2005 and 41/2008), which came into force on 1 January 2006 and abrogated the former 1978 Obligations Act, reads as follows: Rights of personalitySection 19 “(1) All natural persons or legal entities are entitled to the protection of their rights of personality [ prava osobnosti ] under the conditions provided by law. (2) Rights of personality within the meaning of this Act are the right to life, to physical and mental health, reputation, honour, dignity, name, privacy of personal and family life, liberty, etc. (3) A legal entity shall have all the above-mentioned rights of personality – apart from those related to the biological character of a natural person – and, in particular, the right to a reputation and good name, honour, name or company name, business secrecy, entrepreneurial freedom, etc.” Section 1046 “Damage is ... an infringement of rights of personality (non-pecuniary damage).” Request to desist from violating rights of personalitySection 1048 “Anyone may request a court or other competent authority to order the cessation of an activity which violates his or her rights of personality and the elimination of its consequences.” The relevant case-law 72. As to which rights of natural persons, apart from those enumerated in section 19 of the Civil Obligations Act, are to be considered rights of personality, it should be noted that only the following have so far been interpreted as rights of personality by the Croatian courts: the right to life, the right to physical and mental integrity (health), the right to liberty, the right to reputation and honour, the right to privacy of personal and family life, the right to secrecy of letters and personal manuscripts, the right to personal identity (in particular, the rights to one’s image, voice and name) and the moral rights of authors. 73. The relevant part of the Constitutional Court’s decision no. U ‑ III ‑ 1437/2007 of 23 April 2008, concerning the right to compensation in respect of rights of personality, reads as follows: “... Section 1046 of the Civil Obligations Act defines non-pecuniary damage as an infringement of rights of personality. In other words, any infringement of rights of personality amounts to non-pecuniary damage. Section 19(2) of the Civil Obligations Act defines rights of personality for the purposes of that Act as: the right to life, physical and mental health, reputation, honour, respect for one’s dignity and name, privacy of personal and family life, freedom and other aspects. ... [I]t is to be concluded that in this case there has been a violation of human, constitutional and personal values because the applicant was in prison conditions which were incompatible with the standards prescribed by the Enforcement of Prison Sentences Act and also with the legal standards under Article 25 § 1 of the Constitution. For that reason the courts are obliged to award compensation for the infringement of the applicant’s dignity. ...” F. The Prevention of Discrimination Act 74. The relevant part of the Prevention of Discrimination Act ( Zakon o suzbijanju diskriminacije, Official Gazette no. 85/2008) reads as follows. Section 1 “(1) This Act ensures protection and promotion of equality as the highest value of the constitutional order of the Republic of Croatia; creates conditions for equal opportunities and regulates protection against discrimination on the basis of race or ethnic origin or skin colour, gender, language, religion, political or other conviction, national or social origin, state of wealth, membership of a trade union, education, social status, marital or family status, age, health, invalidity, genetic inheritance, gender identity, expression or sexual orientation. (2) Discrimination within the meaning of this Act means putting any person in a disadvantageous position on any of the grounds under subsection 1 of this section, as well as his or her close relatives. ...” Section 8 “This Act shall be applied in respect of all State bodies ... legal entities and natural persons ...” Section 16 “Anyone who considers that, owing to discrimination, any of his or her rights has been violated may seek protection of that right in proceedings in which the determination of that right is the main issue, and may also seek protection in separate proceedings under section 17 of this Act.” Section 17 “A person who claims that he or she has been a victim of discrimination in accordance with the provisions of this Act may bring a claim and seek: (1) a ruling that the defendant has violated the plaintiff’s right to equal treatment or that an act or omission by the defendant may lead to the violation of the plaintiff’s right to equal treatment (claim for an acknowledgment of discrimination); (2) a ban on (the defendant’s) undertaking acts which violate or may violate the plaintiff’s right to equal treatment or an order for measures aimed at removing discrimination or its consequences to be taken (claim for a ban or for removal of discrimination); (3) compensation for pecuniary and non-pecuniary damage caused by the violation of the rights protected by this Act (claim for damages); (4) an order for a judgment finding a violation of the right to equal treatment to be published in the media at the defendant’s expense. ...” III. RELEVANT COUNCIL OF EUROPE DOCUMENTS A. Committee of Ministers 75. The relevant parts of Recommendation Rec(2004)10 of the Committee of Ministers to member States concerning the protection of the human rights and dignity of persons with mental disorder (adopted by the Committee of Ministers on 22 September 2004 at the 896th meeting of the Ministers’ Deputies) read as follows. “... Having regard, in particular: – to the Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 and to its application by the organs established under that Convention; ... Chapter II – General provisionsArticle 3 – Non-discrimination 1. Any form of discrimination on grounds of mental disorder should be prohibited. 2. Member States should take appropriate measures to eliminate discrimination on grounds of mental disorder. Article 4 – Civil and political rights 1. Persons with mental disorder should be entitled to exercise all their civil and political rights. 2. Any restrictions to the exercise of those rights should be in conformity with the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms and should not be based on the mere fact that a person has a mental disorder. ... Article 7 – Protection of vulnerable persons with mental disorders 1. Member States should ensure that there are mechanisms to protect vulnerable persons with mental disorders, in particular those who do not have the capacity to consent or who may not be able to resist infringements of their human rights. 2. The law should provide measures to protect, where appropriate, the economic interests of persons with mental disorder. ...” 76. The relevant parts of Recommendation Rec(2006)5 of the Committee of Ministers to member States on the Council of Europe Action Plan to promote the rights and full participation of people with disabilities in society: improving the quality of life of people with disabilities in Europe 2006-2015 (adopted by the Committee of Ministers on 5 April 2006 at the 961st meting of the Ministers’ Deputies) read as follows. “... Bearing in mind the Convention for the Protection of Human Rights and Fundamental Freedoms (ETS No. 5); ... 3.12. Action line No. 12: Legal protection 3.12.1. Introduction People with disabilities have the right to recognition everywhere as persons before the law. When assistance is needed to exercise that legal capacity, member States must ensure that this is appropriately safeguarded by law. Persons with disabilities constitute a varied population group, but all have in common, to a greater or lesser extent, the need for additional safeguards in order to enjoy their rights to the full and to participate in society on an equal basis with other members. The need to focus particular attention on the situation of persons with disabilities, in terms of the exercise of their rights on an equal basis with others, is confirmed by the initiatives taken in this area at national and international level. The principle of non-discrimination should be the basis of government policies designed to deliver equality of opportunity for people with disabilities. Access to the legal system is a fundamental right in a democratic society but people with disabilities can often face a number of barriers, including physical access difficulties. This requires a range of measures and positive actions, including general awareness raising among the legal professions about disability issues. 3.12.2. Objectives iii. to promote training on human rights and disability (both national and international) for law enforcement personnel, public officials, judiciary and medical staff; iv. to ensure that disabled victims of violence and abuse, including domestic, have access to the relevant support services, including redress; v. to prevent and combat violence, ill-treatment and abuse in all situations by supporting families, raising public awareness and education, promoting discussion and co-operation among relevant parties; viii. to ensure that relevant training is provided to all staff working in disability-specific institutional settings and mainstream support services; IV. RELEVANT UNITED NATIONS MATERIALS 79. The relevant parts of the Convention on the Rights of Persons with Disabilities (which was ratified by Croatia in August 2007 and came into force on 3 May 2008) read: Article 1 – Purpose “The purpose of the present Convention is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity. Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.” Article 4 – General obligations “1. States Parties undertake to ensure and promote the full realization of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability. To this end, States Parties undertake: a. to adopt all appropriate legislative, administrative and other measures for the implementation of the rights recognized in the present Convention; b. to take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities; c. to take into account the protection and promotion of the human rights of persons with disabilities in all policies and programmes; d. to refrain from engaging in any act or practice that is inconsistent with the present Convention and to ensure that public authorities and institutions act in conformity with the present Convention; e. to take all appropriate measures to eliminate discrimination on the basis of disability by any person, organization or private enterprise; ...” Article 5 – Equality and non-discrimination “1. States Parties recognize that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law. 2. States Parties shall prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds. 3. In order to promote equality and eliminate discrimination, States Parties shall take all appropriate steps to ensure that reasonable accommodation is provided. 4. Specific measures which are necessary to accelerate or achieve de facto equality of persons with disabilities shall not be considered discrimination under the terms of the present Convention.” Article 8 – Awareness-raising “1. States Parties undertake to adopt immediate, effective and appropriate measures: a. to raise awareness throughout society, including at the family level, regarding persons with disabilities, and to foster respect for the rights and dignity of persons with disabilities; b. to combat stereotypes, prejudices and harmful practices relating to persons with disabilities, including those based on sex and age, in all areas of life; c. to promote awareness of the capabilities and contributions of persons with disabilities. Measures to this end include: a. Initiating and maintaining effective public awareness campaigns designed: THE LAW I. ALLEGED VIOLATION OF ARTICLES 2, 3 AND 8 OF THE CONVENTION 80. The applicants complained that the State authorities had not given them adequate protection from harassment by children from their neighbourhood. They relied on Articles 2, 3 and 8 of the Convention, the relevant parts of which read as follows: Article 2 “1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. ...” Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Article 8 “1. Everyone has the right to respect for his private ... life ... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 1. The parties’ submissions (a) The Government’s submissions 81. The Government maintained that Articles 2 and 3 were not applicable to the circumstances of the present case. As regards Article 2, they argued that the applicants’ lives had never been put at risk in any way. As regards Article 3 of the Convention, the Government submitted that the requisite level of severity had not been reached since the harassment complained of had mostly been verbal while the injuries the first applicant had sustained on 4 April 2009 had been of a mild nature. They also submitted that the fact that the first applicant had expressed a wish to walk around showed that he had not been traumatised by the events in issue. 82. The Government also argued that the applicants had not exhausted all available domestic remedies. In the Government’s view the applicants should have brought a civil action for damages against the children concerned and their parents and also against the school the children were attending, or other authorities. Furthermore, they could have instituted minor-offences proceedings against the children’s parents. They could also have brought an “action against an unlawful act” against the relevant authorities under the Administrative Disputes Act. In the proceedings instituted upon such an action the competent court was obliged to act urgently. In a judgment upholding the action, the court would forbid any further unlawful act. The judgment had to be enforced within three days after it had been served on the parties. 83. As regards the events of 10 April and 13 May 2010, the Government submitted that the alleged perpetrators, P.B. and Z.B., were 14 at the time and that they could be held criminally responsible. Since the criminal inquiry was still ongoing, any complaint relating to these incidents was premature. (b) The applicants’ submissions 84. The applicants maintained in reply that they had been submitted to ongoing harassment which also included acts of physical violence against the first applicant and verbal violence against both applicants. Such harassment had disrupted their daily lives and caused them a significant level of constant stress and suffering, in particular in view of the first applicant’s medical condition. They argued that the ongoing pattern of harassment and abuse met the requisite intensity standard under Articles 3 and 8 of the Convention and that Article 2 of the Convention was also applicable given the escalation of violence against the first applicant in view of his extreme vulnerability and also in view of the likelihood, as demonstrated by research on disability hate crime, of low-level harassment turning into full-scale violence if left unchecked, possibly resulting in extreme circumstances in death or severe ill-treatment. 85. As to the exhaustion of domestic remedies, they argued that the domestic legal system did not provide any remedies affording redress in respect of disability hate crime; this was supported by the fact that the Government had not submitted any relevant case-law to support their assertions as to the availability and efficiency of the remedies they relied on. 86. As regards the possibility of bringing an action against the authorities on account of an unlawful act under section 67 of the Administrative Disputes Act, the applicants maintained that the admissibility requirements for that remedy – for example, that the unlawful act had to amount to a violation of the Constitution, that the remedy should be the last resort, and that the unlawful activity was ongoing at the time when the action was brought – made it ineffective in the case in issue. 87. As regards a possible civil action for damages against the parents of the children involved, the applicants argued that the Court had already held in cases against Croatia that effective deterrence against attacks on the physical integrity of a person required efficient criminal-law mechanisms that would have ensured adequate protection in that respect (they cited Sandra Janković v. Croatia, no. 38478/05, § 36, 5 March 2009). 88. As regards minor-offences proceedings, the applicants submitted that they applied only to minor offences against public peace and order and that therefore such a remedy was clearly inadequate in respect of the harm done to the applicants’ physical and psychological integrity. 89. As regards the Government’s contention that the application was premature in respect of the events of 10 April and 13 May 2010 since the investigation into those events was still ongoing, the applicants replied that they had never received any official information that any investigation into the matter had been instituted and that in any event there had been unjustified delays in the conduct of the authorities. Furthermore, the investigation concerned isolated incidents and not the applicants’ situation as a whole. 2. The Court’s assessment (a) The applicability of Articles 2, 3 and 8 of the Convention to the circumstances of the present case (i) In respect of the first applicant 90. The Court takes note of repeated incidents of violent behaviour towards the first applicant. The facts in issue concern frequent episodes of harassment in the period between 31 July 2008 and February 2011, amounting to about two and half years. The incidents concerned both verbal and physical harassment, including violent acts such as burning the first applicant’s hands with cigarettes, pushing him against an iron fence and hitting him with a ball. In view of the fact that all the incidents in the present case concerned a series of acts by a group of children and occurred over a prolonged period of time, the Court will examine them as a continuing situation. 91. The Court notes further that the incidents of harassment of the first applicant by children living in his neighbourhood and children attending a nearby primary school are well documented by, inter alia, police reports and medical reports. The latter show the adverse impact that these incidents have had on his physical and mental health. The reports concerning the first applicant indicate that he is suffering from serious mental disorders, but is a peaceful and benign individual who cannot and does not know how to defend himself from his abusers. Owing to the continued harassment against him, he has had to undergo psychotherapy, has often been scared and is under stress. His removal from the situation of harassment was recommended. 92. The first applicant made credible assertions that over a prolonged period of time he had been exposed to threats to his physical and mental integrity and had actually been harassed or attacked on a number of occasions. 93. In view of these facts, the Court considers that the State authorities had a positive obligation to protect the first applicant from the violent behaviour of the children involved. This obligation in the circumstances of the present case arises both under Articles 3 and 8 of the Convention. In the circumstances of the case the Court considers, however, that it suffices to analyse the first applicant’s complaints from the standpoint of Article 3 of the Convention only. 94. The Court reiterates that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the nature and context of the treatment, its duration, its physical and mental effects and, in some instances, the sex, age and state of health of the victim (see Costello-Roberts v. the United Kingdom, 25 March 1993, § 30, Series A no. 247-C, and A. v. the United Kingdom, 23 September 1998, § 20, Reports of Judgments and Decisions 1998 ‑ VI). 95. Treatment has been held by the Court to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering (see Labita v. Italy [GC], no. 26772/95, § 120, ECHR 2000-IV). Treatment has been considered “degrading” when it was such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance (see Hurtado v. Switzerland, 28 January 1994, opinion of the Commission, § 67, Series A no. 280-A, and Wieser v. Austria, no. 2293/03, § 36, 22 February 2007). 96. The Court considers that the harassment of the first applicant – which on at least one occasion also caused him physical injuries, combined with feelings of fear and helplessness – was sufficiently serious to reach the level of severity required to fall within the scope of Article 3 of the Convention and thus make this provision applicable in the present case (see Price v. the United Kingdom, no. 33394/96, § 24, ECHR 2001-VII, and Milanović v. Serbia, no. 44614/07, § 87, 14 December 2010). (ii) In respect of the second applicant 97. As regards the second applicant, the Court notes that she has not been exposed to any form of violence affecting her physical integrity. However, there is no doubt that the continued harassment of the first applicant – her disabled son, of whom she has been taking care – and the incidents of harassment which also concerned her personally, even in their milder forms, caused disruption to her daily life and her routines, which had an adverse effect on her private and family life. Indeed, the moral integrity of an individual is covered by the concept of private life. The concept of private life extends also to the sphere of the relations of individuals between themselves. 98. It follows that Article 8 is applicable to the circumstances of the present case as regards the complaints concerning the second applicant. (b) Exhaustion of domestic remedies 99. The Court points out that the purpose of Article 35 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Convention institutions. Consequently, States are dispensed from answering for their acts before an international body before they have had an opportunity to put matters right through their own legal system. The rule of exhaustion of domestic remedies referred to in Article 35 of the Convention requires that normal recourse should be had by an applicant only to remedies that relate to the breaches alleged and at the same time are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness; it falls to the respondent State to establish that these various conditions are satisfied (see Selmouni v. France [GC], no. 25803/94, §§ 74-75, ECHR 1999 ‑ V). 100. Article 35 provides for a distribution of the burden of proof. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was capable of providing redress in respect of the complaints invoked and offered reasonable prospects of success (see Akdivar and Others v. Turkey, 16 September 1996, § 68, Reports 1996 ‑ IV). 101. The Court would emphasise that the application of this rule must make due allowance for the context. Accordingly, it has recognised that Article 35 must be applied with some degree of flexibility and without excessive formalism (see Cardot v. France, 19 March 1991, § 34, Series A no. 200). It has further recognised that the rule of exhaustion of domestic remedies is neither absolute nor capable of being applied automatically; in reviewing whether the rule has been observed, it is essential to have regard to the particular circumstances of the individual case (see Van Oosterwijck v. Belgium, 6 November 1980, § 35, Series A no. 40). This means, amongst other things, that the Court must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned but also of the general legal and political context in which they operate as well as the personal circumstances of the applicants (see Akdivar and Others, cited above, § 69). 102. As regards the present case, the Court notes that the Government suggested that the applicants should have brought a civil action in damages against the parents of the children implicated in the acts of harassment and violence against the first applicant, adding that they also had the possibility of instituting minor-offences proceedings against the parents of these children. 103. In this connection, the Court notes that what is at stake in the present case is not the individual responsibility of the parents of the children involved but the alleged lack of an adequate response by the competent State authorities to the repeated acts of harassment and violence by children who, on account of their young age, cannot be criminally prosecuted under the national law. 104. As regards the Government’s contention that the application was premature because the children P.B., Z.B. and I.S., who had allegedly been involved in the events of 10 April and 13 May 2010, were 14 at the time and were therefore criminally liable, the Court firstly reiterates that individual criminal responsibility is not at issue in the present case. In any event, the incidents concerned took place in April and May 2010 and the Government have failed to show that any further steps were taken in addition to the police interviews conducted in July, August and September 2010 with the children in question. 105. However, some further remedies referred to by the Government call for an assessment of their effectiveness in the particular circumstances of the present case. The Court notes that sections 67 to 76 of the Administrative Disputes Act provide for an “action against an unlawful act” (see paragraphs 66 and 67 above), a judicial remedy open to anyone who considers that his or her rights or freedoms guaranteed by the Constitution have been violated by a public authority and that no other judicial remedy is available. This remedy and the remedy available under section 66 of the same Act against a “final individual act” (see paragraph 65 above) represent remedies of last resort, to be used in the absence of any other judicial protection, against decisions or other (factual) acts or omissions by public authorities that are capable of violating constitutionally guaranteed rights or freedoms. The rationale behind those remedies is that constitutional rights and freedoms are so precious that they cannot be left unprotected by the courts. 106. The Court also notes that the right not to be ill-treated and the right to respect for one’s private and family life are both guaranteed by the Croatian Constitution. Furthermore, the relevant case-law of the national courts shows that an action of this nature may also be brought in a situation of an omission to act, such as in the present case, where the applicants alleged that the national authorities had failed to take appropriate steps. However, certain issues arise as regards the effectiveness of such an action in the circumstances of the present case. 107. Firstly, the Government did not indicate which authority could be held responsible for a failure to take adequate measures. Since the remedy in issue is an “action against an unlawful act” (or omission), it is necessary to establish which body had a duty to act and on the basis of which law. Furthermore, an action in respect of an omission to act may only be brought against an individual public official who had a duty to act with a basis in law. It would be difficult in the present case to name an individual official who had such a duty. The Government, moreover, made no submissions in that respect. The Court notes in this connection that one aspect of the applicants’ complaint was that no State authority was obliged by law to take any measures in the situation complained of. 108. An action of this nature under the Administrative Disputes Act would entail the institution of proceedings in the ordinary civil courts. The Government have not indicated that the application of any kind of interim measures would be possible in such proceedings. However, the situation complained of by the applicants shows that they were continually harassed, at times almost on a daily basis, and the essence of their complaints lies in the fact that the national authorities, although aware of that situation, failed to take appropriate measures to prevent further harassment. Thus, the situation called for an immediate reaction by the State authorities. The Government have not shown that any of the remedies referred to by them could be capable of leading to such an immediate response to the situation of harassment. 109. Thus, regarding an “action against an unlawful act” and a civil action for damages against the State under the Civil Obligations Act, the Government have not shown that these remedies would have been capable of leading to the prompt and appropriate measures that were necessary in the circumstances of the present case. 110. At this juncture the Court reiterates that the rationale behind the requirement of the exhaustion of domestic remedies is the subsidiary nature of the Convention instruments, that is to say, the principle that the national authorities must first be given the opportunity to remedy the violation complained of. In this connection the Court notes that the second applicant repeatedly complained about the ongoing harassment to various national authorities, such as the police and the State Attorney’s Office, the competent social welfare centre and the school the children concerned attended. The Court considers that she thus gave the relevant authorities adequate opportunity to react to her allegations and put an end to the harassment complained of. She has therefore exhausted the available domestic remedies. 111. Furthermore, the applicants alleged deficiencies in the national system for the protection of persons with disabilities from acts of harassment and violence, including the legal framework within which the competent authorities are to operate and the mechanisms provided for. In this connection the Court notes that the Government have not shown that these issues could have been examined in any of the types of proceedings they relied on. 112. It follows that the applicants were not required to avail themselves also of the remedies suggested by the Government. In reaching this conclusion, the Court has taken into consideration the specific circumstances of the present case, as well as the fact that a right as fundamental as the right not to be subjected to inhuman and degrading treatment is at stake and that the Convention is intended to guarantee rights that are not theoretical or illusory, but rights that are practical and effective (see, for example, Matthews v. the United Kingdom [GC], no. 24833/94, § 34, ECHR 1999-I). Accordingly, the Government’s objection has to be dismissed. (c) Conclusion 113. The Court finds that the complaints under Articles 3 and 8 of the Convention are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further finds that they are not inadmissible on any other grounds. They must therefore be declared admissible. B. Merits 1. The parties’ submissions (a) The applicants’ submissions 114. The applicants firstly addressed the issue of violence against the first applicant as a disability hate crime. Studies relating to that issue showed that the rate of abuse and violence committed against persons with disabilities was considerably higher than the rate for the general population and was widespread. The most common forms of violence against people with intellectual disabilities were kicking, biting, name-calling, teasing, stealing, pushing, threatening, throwing objects at them, telling them to leave a building, hitting, shouting at them, swearing, demanding money, hair-pulling, throwing stones, spitting, poking, punching, beating and banging their head against a wall. People with disabilities frequently experienced violence on an ongoing basis perpetrated by the same people. Abuse was often perpetrated by gangs of youths who targeted the same person systematically, as in the present case. 115. Harassment against disabled persons was usually motivated by a perception of such persons as inferior. Violence and hostility might have wide-ranging consequences, including emotional, physical and sexual implications, or even the death of the victim. People with disabilities might be forced to restructure their daily lives in order to avoid risk. 116. In their submissions, the applicants also relied on the international sources cited above, in particular the United Nations Convention on the Rights of Persons with Disabilities and the obligations stemming from it. 117. The applicants submitted that they had been subjected to ongoing harassment and abuse for a period of over five years by a group of mostly unidentified children on account of their Serbian origin and the first applicant’s disability. The harassment had consisted mostly of verbal abuse and other forms of anti-social behaviour such as spitting, making noise, drawing insulting messages on the pavement, and causing damage to the applicants’ place of residence. It had caused the applicants intense suffering. Besides the physical harm resulting from the incidents mentioned above, the ongoing harassment had taken a very significant toll on the first applicant’s mental well-being as documented by his psychotherapist. 118. In addition, the applicants had had to change their daily routines. Daily walks in the park, sitting on a bench in the park and talking to people were crucial for the first applicant to develop an independent lifestyle and a sense of inclusion in the community. Because of the constant harassment by children from his neighbourhood, the first applicant had had to stop all these activities. 119. Relying extensively on the Court’s case-law as regards the State’s positive obligations under Articles 3 and 8 of the Convention, the applicants argued that the relevant State authorities had been under a duty to take positive measures to protect them from harm perpetrated by third parties. The second applicant had repeatedly informed the authorities of the abuse to which the applicants had been exposed but the authorities had largely failed to take any action to prevent ill-treatment from recurring. The authorities had thus been aware that the harassment against the first applicant had followed the same pattern. 120. However, despite their knowledge of the applicants’ situation, the relevant authorities had failed in their duty to put an end to the harassment and abuse. The applicants argued that there had been no clarity as to which authority was competent to address their situation. As to the Government’s contention that the police had reacted adequately to all complaints by the second applicant, they argued that the police had failed to grasp the full extent of the ongoing abuse and to prevent further abuse. The police had failed to identify the perpetrators; they would simply arrive at the scene and warn the children to go away. Such a relaxed approach by the police had failed in its deterrent effect. Furthermore, the police had addressed each instance of abuse as an isolated event, without comprehending the continuing nature of the situation. They had also failed to take any appropriate action, such as instituting minor-offences proceedings against the parents of the children involved. 121. The competent social welfare centre should have: investigated the case and established the relevant facts; invited the parents of the perpetrators to a meeting in order to establish their personal circumstances; issued protective measures to prevent the violence from recurring; advised or obliged the perpetrators and their parents to attend counselling; monitored the situation; and drawn up reports on the measures taken. However, the Susedgrad Social Welfare Centre had done none of the above. In 2009 it had taken measures against one of the minors involved in the cigarette-burn incident and placed him under the supervision of a social worker and then initiated court proceedings to place him in an institution for children with behavioural problems for a period of one year. However, all that had been done not because of the attack on the first applicant, but owing to the overall behavioural problems of the individual concerned. 122. As to the authorities of the school the children in question attended, the applicants maintained that although they had been entitled to take a range of disciplinary measures in cases of violent behaviour by pupils, including warnings, reprimands, severe reprimands and expulsion from school, they had failed to take any such measures. It was true, however, that the school authorities had taken some other measures, such as calling on parents and children to make sure that violent behaviour against the applicants ceased and organising meetings to tell pupils about the requirements of people with special needs. They had also facilitated interviews with the pupils concerned. However, these measures had not been capable of preventing further violence against the applicants. 123. Likewise, none of the other authorities had done much in order to prevent the violence against and harassment of the applicants. (b) The Government’s submissions 124. The Government argued that, save for the incidents reported to the police and documented by the police reports, the applicants had not proved that any further incidents had occurred. The Government submitted that the relevant authorities had taken all appropriate measures to protect the applicants from harassment. Each time the second applicant had called the police, the police had arrived in due time and interviewed the children concerned and warned them about their inappropriate behaviour. Each time a report had been drawn up by the police and sent to the State Attorney’s Office. 125. The school the children in question attended had also always reacted promptly to the applicants’ allegations of harassment. The school employees had often held discussions with the pupils and their parents about people with special needs. The parents had been told to discuss that issue with their children and the school headmaster had sent a letter to the parents to that effect. 126. As regards the incident of 4 April 2009, the Government submitted that the national authorities had taken all relevant steps in order to identify the perpetrator. Finally, it had been revealed that I.M. had burnt the first applicant’s hands with a cigarette. Since I.M., as a child below 14 years of age, could not be held criminally responsible, the applicants had been instructed to institute civil proceedings for damages. The competent State Attorney’s Office had informed both the Ombudswoman for Children and the competent social welfare centre of its findings. 127. As regards the events of 10 April and 13 May 2010, as well as the allegations of constant harassment of the first applicant, the police had interviewed the children P.B., Z.B. and I.S. The inquiry was ongoing and since all of them were already over 14 when the alleged acts had taken place, they could be held criminally responsible. 128. The Government argued that the above showed that the national authorities had acted promptly and diligently as regards each complaint submitted by the applicants and taken all steps and measures aimed at preventing further harassment. Since June 2010 there had been no further complaints. 129. The Government further submitted that the parents had a major responsibility in preventing their children from behaving inappropriately. The parents of the children involved had repeatedly been told by the school authorities, as well as the social services, about the problems with their children. 130. On the other hand, the second applicant as the first applicant’s mother should also bear a certain degree of responsibility in caring for him. It had been established that the first applicant needed help walking and required constant care from his mother. He had also been found to be suffering from epilepsy and was short-sighted. The social services had warned the second applicant not to let him out of the flat alone; heeding this warning would have solved all problems relating to his physical contact with others, and if she had always accompanied him outside, she would have been able to raise the other children’s awareness as regards her son. (c) The third-party intervener 131. The European Disability Forum viewed the issues in the present case through the lens of disability hate crime. It maintained that recognising a hate crime against persons with disabilities represented a challenge for many legal systems since the use of their vulnerability tended to prevent the law-enforcement agencies and courts from identifying the actions as a hate crime. Two separate studies in the United Kingdom had shown that, while people with disabilities were four times more likely than their non-disabled peers to be verbally and physically attacked, they were half as likely to report crimes to the police. 132. The third-party intervener further argued that hostile behaviour towards persons with disabilities that provoked violent attacks was inherently discriminatory since the victims were chosen because of their visible disability. It argued that the fear of persons with visible disabilities whose appearance was seen as “disturbing and unpleasant” was the dominant reason for violence against persons with disabilities. Such persons were often seen as inferior or responsible for their own condition, which put the burden on society as a whole. 133. Fear of the “different” was nourished only where the potential victim was perceived as vulnerable. The vulnerability of a disabled person was an opportunity for the offenders to carry out their attacks. This was especially pertinent in cases where persons with disabilities were attacked not for the purpose of robbing them or their property, but to humiliate and hurt their persona. 134. The European Disability Forum also submitted that the specific recognition of disability hate crime was a recent trend. Relying on Article 5 of the United Nations Convention on the Rights of Persons with Disabilities (cited above), it submitted that that Article confirmed the entitlement of persons with disabilities to protection on an equal basis to others. For the State, this again meant the ability to recognise and address discrimination based on the victim’s disability, and sufficient knowledge about disability to be able to apply the law with respect for the needs of persons with disabilities. In specific cases, observance of the non-discrimination principle might mean recognising the specific situation of persons with disabilities compared with their non-disabled peers. The second paragraph of Article 5 alluded to the obligation of the State to protect persons with disabilities against discrimination on all grounds. Again, meeting this obligation required extensive training of State agents. 135. The third-party intervener also pointed out that the United Nations Convention obliged the States Parties to “take all effective legislative, administrative, judicial or other measures to prevent persons with disabilities” from being subjected to violence, which also required training of those working in the field of the administration of justice. 136. In conclusion, the European Disability Forum submitted that, so far, disability hate crime had not received enough attention from law-makers and law-enforcement authorities. This had resulted in a failure to recognise disability hate crime as such, as well as in under-reporting and misunderstanding of that phenomenon. The response of the authorities to this problem should shift from reactive to proactive and be aimed at protecting persons with disabilities from all acts of violence. 2. The Court’s assessment (a) As regards the first applicant (i) General principles 137. The Court reiterates that Article 3 of the Convention must be regarded as one of the most fundamental provisions of the Convention and as enshrining core values of the democratic societies making up the Council of Europe (see Pretty v. the United Kingdom, no. 2346/02, § 49, ECHR 2002-III). In contrast to the other provisions in the Convention, it is cast in absolute terms, without exception or proviso, or the possibility of derogation under Article 15 of the Convention (see, inter alia, Chahal v. the United Kingdom, 15 November 1996, § 79, Reports 1996-V). 138. The Court reiterates that, as regards the question whether the State could be held responsible, under Article 3, for ill-treatment inflicted on persons by non-State entities, the obligation on the High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment or punishment, including such ill-treatment administered by private individuals (see, mutatis mutandis, H.L.R. v. France, 29 April 1997, § 40, Reports 1997-III). These measures should provide effective protection, in particular, of children and other vulnerable persons, and include reasonable steps to prevent ill-treatment of which the authorities had or ought to have had knowledge (see, mutatis mutandis, Osman v. the United Kingdom, 28 October 1998, § 116, Reports 1998-VIII, and E. and Others v. the United Kingdom, no. 33218/96, § 88, 26 November 2002). 139. Bearing in mind the difficulties in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, the scope of this positive obligation must, however, be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Not every claimed risk of ill-treatment, therefore, can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. For a positive obligation to arise, it must be established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk of ill-treatment of an identified individual from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. Another relevant consideration is the need to ensure that the police exercise their powers to control and prevent crime in a manner which fully respects the due process and other guarantees which legitimately place restraints on the scope of their action to investigate crime and bring offenders to justice, including the guarantees contained in Article 8 of the Convention (see Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, no. 13178/03, § 53, ECHR 2006-XI; Members of the Gldani Congregation of Jehovah’s Witnesses and Others v. Georgia, no. 71156/01, § 96, 3 May 2007; and Milanović, cited above, § 84; see also, mutatis mutandis, Osman, cited above, § 116). 140. The Court will therefore examine whether the respondent State, in dealing with the first applicant’s case, has been in breach of its positive obligations under Article 3 of the Convention. (ii) Application of these principles to the present case 141. The Court notes at the outset that acts of violence in contravention of Article 3 of the Convention would normally require recourse to the application of criminal-law measures against the perpetrators (see Beganović v. Croatia, no. 46423/06, § 71, 25 June 2009, as regards Article 3, and Sandra Janković, cited above, § 47, as regards Article 8). 142. However, in the present case most of the alleged perpetrators were children below 14 years of age, against whom, under the national system, it is not possible to apply any criminal-law sanctions. Furthermore, in the specific circumstances in issue, it might be that none of the acts complained of in itself amounts to a criminal offence, but that nevertheless in their entirety the incidents of harassment are incompatible with the requirements of Article 3 of the Convention. Therefore, the present case is to be distinguished from cases concerning the State’s procedural obligations under criminal law in respect of acts of ill-treatment contrary to Article 3 of the Convention, where the State authorities are under a duty to conduct of their own motion a thorough, effective and independent investigation. 143. The present case concerns the issue of the State’s positive obligations in a different type of situation, outside the sphere of criminal law, where the competent State authorities are aware of a situation of serious harassment and even violence directed against a person with physical and mental disabilities. It concerns the alleged lack of an adequate response to such a situation in order to properly address acts of violence and harassment that had already occurred and to prevent any such further acts. 144. In line with the above, the Court has examined, firstly, whether the relevant authorities were or should have been aware of the situation of harassment of and violence against the first applicant. 145. In this connection the Court notes that the documents in the case file show that as early as 31 July 2008 the second applicant informed the police of the ongoing harassment of her son by children from the neighbourhood. She also informed the police of numerous further incidents, including the burning of the first applicant’s hands with cigarettes on 4 April 2009. In April 2009 she informed the Ombudswoman for Persons with Disabilities of the same incident. Between May and July 2009 the police informed the State Attorney’s Office as well as the competent social welfare centre of the alleged abuse against the first applicant and by September 2009 the school authorities had also been duly informed. 146. In view of the above, the Court is satisfied that the domestic authorities were aware of the ongoing harassment of the first applicant by children from his neighbourhood and children attending a nearby school. The Court will therefore examine whether the relevant authorities took all reasonable steps in the circumstances of the present case to protect the first applicant from such acts. 147. In the present situation, where incidents of violence have persisted over a certain period of time, the Court finds that the relevant authorities failed to take sufficient steps to ascertain the extent of the problem and to prevent further abuse taking place. 148. It is true that the police interviewed some of the children allegedly involved in certain incidents and that the school authorities discussed the problem with the pupils and their parents. However, the Court finds that no serious attempt was made to assess the true nature of the situation complained of, and to address the lack of a systematic approach which resulted in the absence of adequate and comprehensive measures. Thus, the findings of the police were not followed by any further concrete action: no policy decisions have been adopted and no monitoring mechanisms have been put in place in order to recognise and prevent further harassment. The Court is struck by the lack of any true involvement of the social services and the absence of any indication that relevant experts were consulted who could have given appropriate recommendations and worked with the children concerned. Likewise, no counselling has been provided to the first applicant in order to aid him. In fact, the Court finds that, apart from responses to specific incidents, no relevant action of a general nature to combat the underlying problem has been taken by the competent authorities despite their knowledge that the first applicant had been systematically targeted and that future abuse was very likely to follow. 149. In view of this, the Court considers that the competent State authorities have not taken all reasonable measures to prevent abuse against the first applicant, notwithstanding the fact that the continuing risk of such abuse was real and foreseeable. 150. There has accordingly been a violation of Article 3 of the Convention in respect of the first applicant. (b) As regards the second applicant (i) General principles 151. While the essential object of Article 8 is to protect the individual against arbitrary interference by public authorities, it does not merely compel the State to abstain from such interference: in addition to this negative undertaking, there may be positive obligations inherent in effective respect for private or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves (see X and Y v. the Netherlands, 26 March 1985, § 23, Series A no. 91; Botta v. Italy, 24 February 1998, § 33, Reports 1998 ‑ I; Mikulić v. Croatia, no. 53176/99, § 57, ECHR 2002 ‑ I; and Sandra Janković, cited above, § 44). 152. The Court has previously held, in various contexts, that the concept of private life includes a person’s psychological integrity. Under Article 8, States have in some circumstances a duty to protect the moral integrity of an individual from acts of other persons. The Court has also held that States have a positive obligation to ensure respect for human dignity and the quality of life in certain respects (see L. v. Lithuania, no. 27527/03, § 56, ECHR 2007-IV, and, mutatis mutandis, Pretty, cited above, § 65). (ii) Application of these principles to the present case 153. The Court considers that the acts of ongoing harassment have also affected the private and family life of the second applicant. It has found that the State authorities have not put in place adequate and relevant measures to prevent further harassment of the first applicant. Likewise, the State authorities have failed to afford adequate protection in that respect to the second applicant. Therefore, there has also been a violation of Article 8 of the Convention in respect of the second applicant. II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION 154. The applicants further complained that the acts of abuse against them and the response of the competent authorities were also discriminatory, on the basis of their Serbian ethnic origin and the first applicant’s disability. They relied on Article 14 of the Convention, which provides: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” Admissibility 1. The parties’ submissions 155. The Government argued that the applicants could have brought a claim pursuant to the Prevention of Discrimination Act, by which they would have been able to seek an acknowledgment of any possible discrimination as set out in that Act, an order for the removal of the discrimination and its consequences, as well as compensation. 156. The applicants contended in reply that proceedings under the Prevention of Discrimination Act did not constitute an effective remedy because they could not address the particular situation complained of. Furthermore, they claimed that two years after that Act had been passed, there was no relevant case-law showing either that citizens had felt confident about instituting proceedings pursuant to the Act, or that the proceedings that had been instituted had progressed with adequate speed. 2. The Court’s assessment 157. As regards Article 14 of the Convention, the Court reiterates that it has no independent existence, but plays an important role by complementing the other provisions of the Convention and its Protocols, since it protects individuals placed in similar situations from any discrimination in the enjoyment of the rights set forth in those other provisions (see Dudgeon v. the United Kingdom, 22 October 1981, § 67, Series A no. 45; Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 89, ECHR 1999-III; and Timishev v. Russia, nos. 55762/00 and 55974/00, § 53, ECHR 2005-XII). Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts in issue fall within the ambit of one or more of the latter (see, for example, Van Buitenen v. the Netherlands, no. 11775/85, Commission decision of 2 March 1987, unreported, and Cha’are Shalom Ve Tsedek v. France [GC], no. 27417/95, § 86, ECHR 2000 ‑ VII). 158. The Court has also held that even in a situation where the substantive provision is not applicable, Article 14 may still be applicable (see Savez crkava “Riječ života” and Others v. Croatia, no. 7798/08, § 58, 9 December 2010). Consequently, admissibility issues concerning Article 14 may be assessed separately. 159. As to the present case, the Court will examine under Article 14 the issue of exhaustion of domestic remedies in relation to the Prevention of Discrimination Act. In this connection the Court notes that it has already examined the issue of exhaustion of domestic remedies as regards a discrimination complaint separately from the exhaustion issues concerning the main complaint (see Valkov and Others v. Bulgaria, nos. 2033/04, 19125/04, 19475/04, 19490/04, 19495/04, 19497/04, 24729/04, 171/05 and 2041/05, §§ 104-08, 25 October 2011). This approach goes hand in hand with the principle that where a substantive Article of the Convention or its Protocols has been relied on both on its own and in conjunction with Article 14 and a separate breach has been found of the substantive Article the Court may not always consider it necessary to examine the case under Article 14 as well, though the position is otherwise if a clear inequality of treatment in the enjoyment of the right in question is a fundamental aspect of the case (see Dudgeon, cited above, § 67; Chassagnou and Others, cited above, § 89; and Timishev, cited above, § 53). 160. As regards the present case, the Court notes that the Prevention of Discrimination Act contains specific reference to discrimination based on health condition and invalidity, as well as on ethnic origin (see section 1 of the Act). It provides for a range of remedies, including the acknowledgment of discrimination, a ban on discriminatory acts and compensation for damage. Remedies may also be used against the national authorities in the event of their alleged failure to take action (see paragraph 74 above). 161. Protection against discrimination is to be sought before the ordinary courts, and an appeal against the first-instance judgment is provided for, as well as a constitutional complaint. The right not to be discriminated against is also guaranteed by the Croatian Constitution, and the Convention is directly applicable in Croatia. In order to comply with the principle of subsidiarity, applicants, before bringing their complaints before the Court, have first to afford the national courts the opportunity of remedying their situation and addressing the issues they wish to bring before the Court. 162. Against the above background, the Court considers that an action pursuant to the provisions of the Prevention of Discrimination Act represents an effective domestic remedy and that proper use of that remedy could have led to an acknowledgment of the violation alleged and an award of damages. In the event that the applicants’ claim was not successful before the ordinary courts, they would have been able to lodge a constitutional complaint and have their complaints examined by the Constitutional Court as well. However, the applicants failed to make use of the remedies available to them. 163. It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies. III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 164. The applicants alleged that they had no effective remedy in respect of their complaints under the Convention. They relied on Article 13 of the Convention, which provides: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. Admissibility 1. As regards the applicants’ complaints under Articles 3 and 8 of the Convention 165. The Court notes that this complaint is linked to the one examined above under Articles 3 and 8 of the Convention and must therefore likewise be declared admissible. 2. As regards the applicants’ complaint under Article 14 of the Convention 166. The Court has already established that in respect of their complaint under Article 14 of the Convention, the applicants had at their disposal an effective remedy – an action pursuant to the provisions of the Prevention of Discrimination Act – which they failed to use. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. B. Merits 167. The applicants argued that they had no effective remedy by which to obtain protection against acts of harassment and violence. The Court notes that the Government suggested a number of remedies allegedly at their disposal in that connection. However, the Court has established that none of the remedies referred to by the Government could have addressed the applicants’ situation in connection with their complaints under Articles 3 and 8 of the Convention. 168. Therefore, the Court considers that the applicants had no effective remedy available in respect of their complaints under Articles 3 and 8 of the Convention. Accordingly, there has been a violation of Article 13 in that respect. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 169. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 170. The applicants claimed 10,000 euros (EUR) each in respect of non-pecuniary damage. 171. The Government deemed the amount claimed excessive and unsubstantiated. 172. Having regard to all the circumstances of the present case, the Court accepts that the applicants suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the applicants jointly EUR 11,500 in respect of non-pecuniary damage, plus any tax that may be chargeable to them. B. Costs and expenses 173. The applicants, who had been granted legal aid under the Council of Europe’s scheme, also claimed EUR 1,206 for the costs and expenses incurred before the domestic courts and EUR 4,997.13 for those incurred before the Court. 174. The Government submitted that the applicants had not provided the itemised particulars of the claim. 175. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers that the costs the applicants incurred in connection with the complaints they made before the national authorities about their harassment were essentially aimed at remedying the violation of the Convention rights alleged before the Court, and that these costs may be taken into account in assessing the claim for costs (see Scordino v. Italy (no. 1) [GC], no. 36813/97, § 284, ECHR 2006 ‑ V, and Medić v. Croatia, no. 49916/07, § 50, 26 March 2009). Regard being had to the information in its possession and the above criteria, the Court awards the applicants jointly EUR 1,206 for the costs and expenses incurred in the domestic proceedings and EUR 3,500 for those before the Court, less EUR 850 already received by way of legal aid from the Council of Europe, plus any tax that may be chargeable to the applicants on that amount. C. Default interest 176. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | This case concerned the State’s positive obligations in a situation outside the sphere of criminal law where the competent State authorities were aware of serious harassment directed at a person with physical and mental disabilities. The Court held in particular that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention in respect of the first applicant, finding that the Croatian authorities had not done anything to end the harassment, despite their knowledge that he had been systematically targeted and that future abuse had been quite likely. |
647 | Journalists and publishing companies | RELEVANT LEGAL FRAMEWORK AND PRACTICE The Civil Code 33. The relevant provisions of the Civil Code read as follows: Article 70 “The law shall protect individuals against any unlawful interference or threat of harm to their person or character.” Article 484 “Anyone who states or spreads [knowledge of] a fact that is capable of harming the reputation of another natural or legal person shall be liable to pay damages.” Article 494 “When liability results from negligence, the compensation may be set at a lower value than that which corresponds to the damage caused, as long as the degree of fault [ grau de culpabilidade ] of the perpetrator, the economic situation of the victim and the remaining circumstances justify this.” The Criminal Code 34. The relevant provisions of the CC read as follows: Article 11 § 1 Liability of individual people and legal entities “Except as provided in the following paragraph and in cases specifically provided for by law, only individuals may incur criminal responsibility.” Article 180 Defamation “1. Anyone who, when addressing a third party, accuses another, even if the accusation takes the form of a suspicion, or makes a statement that casts aspersions on the honour of another, even when repeating an accusation or statement, shall be liable on conviction to a maximum of six months’ imprisonment or 240 day-fines. ...” Article 183 Public disclosure and slander “1. If in the case of the offences provided for in Articles 180, 181 and 182: (a) the offence is committed by means or in circumstances that facilitate its disclosure; or (b) in the case of imputation of facts, if it is ascertained that the offender knew that the imputation was false, the minimum and maximum penalties for defamation or insult shall be increased by one-third. 2. If the offence is committed through the media, the offender shall be punished with a prison sentence of up to two years or not less than 120 day-fines.” Article 187 Insulting a public body or service or a legal entity “1. Anyone who, without having grounds to do so in good faith, regards as truthful, affirms or propagates false facts capable of offending the reputation, prestige or trust that are owed to a body or a service that exercises public authority, a legal entity, an institution or a corporation, shall be liable on conviction to a maximum of six months’ imprisonment or 240 day-fines. 2. The following shall consequently apply: (a) Article 183; ...” Article 371 § 1 Violation of judicial confidentiality “Anyone who, regardless of having had direct contact with the proceedings, unlawfully shares, in its entirety or in part, the contents of an act relating to criminal proceedings which is protected by judicial confidentiality, or which is not open to the general public, shall be punishable by a prison sentence of up to two years or by the payment of up to 240 day-fines ...” The code of criminal procedure 35. At the material time, the relevant provisions of the Code of Criminal Procedure read as follows: Article 400 § 1 (e) Decisions that are not amenable to appeal “1. The following decisions are not amenable to appeal: ... (e) Judgments given on appeal by courts of appeal which impose a penalty not entailing deprivation of liberty [ pena não privativa de liberdade ]. ...” Other relevant material 36. The relevant provisions of the statutes of the ASJP and the SMMP read as follows: Section 3 of the ASJP statutes (Objects) “1. The ASJP shall have as its objects: ... (d) making proposals to the competent authorities on reforms to improve the judicial system and asking to be consulted on all reforms in such matters; ...(g) communicating the views of judges externally on all aspects relevant to the defence of the image, prestige and dignity of the judiciary; ...” Section 6 of the SMMP statutes (Objectives) “The professional association shall pursue the following objectives: ... 2. to defend the interests of public prosecutors, specifically with regard to their socio-professional status; 3. to fight for the dignity of the public prosecutor’s office and for the improvement and democratisation of the judicial system; ... 6. to be consulted on the drafting of laws within the judicial system and to make proposals to the competent authorities on the necessary reforms for the improvement of the judicial system and the delivery of justice.” Domestic practice 37. Domestic case-law has clarified that Article 187 of the CC (see paragraph 34 above) is only applicable to the dissemination of false facts and not to value judgments (see the domestic judgments cited in Pinto Pinheiro Marques v. Portugal, no. 26671/09, § 22, 22 January 2015). THE LAW Locus standi 38. The Court notes that Ms Ana Sofia Pereira Rangel and Ms Catarina Matias Rangel expressed the intention to pursue the application on behalf of the applicant, who had died in the course of the proceedings (see paragraph 2 above). The Government did not comment on this matter. Having regard to the close family ties and the heirs’ legitimate interest in pursuing the application, the Court accepts that the deceased applicant’s heirs may pursue the application in his stead (see, amongst many other authorities, Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR 2000‑XII, and Pais Pires de Lima v. Portugal, no. 70465/12, § 39, 12 February 2019). It will therefore continue to deal with the application at the heirs’ request. However, for practical reasons, Mr Freitas Rangel will continue to be referred as “the applicant” in this judgment (see Dalban v. Romania [GC], no. 28114/95, § 1, ECHR 1999 ‑ V). ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 39. The applicant complained that his conviction and punishment were in breach of his right to freedom of expression as provided for in Article 10 of the Convention, which, in so far as relevant, reads as follows: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ... 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” Admissibility 40. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. MeritsThe parties’ submissions The parties’ submissions The parties’ submissions (a) The applicant 41. The applicant asserted that his statements had been of public interest. He argued that he had expressed value judgments and generic statements, but had not mentioned any specific names. Furthermore, a violation of judicial confidentiality under Article 11 § 1 of the CC (see paragraph 34 above) could only be committed by private individuals and not by legal entities. 42. He further submitted that his statements ought to be interpreted in the light of the cultural, social and historic context, and within the scope of the debate in Parliament (see paragraphs 6 and 7 above). Furthermore, he emphasised the extensively political role that both the ASJP and the SMMP held in Portuguese society. 43. Lastly, the applicant alleged that the penalty to which he had been sentenced and the amount he had been ordered to pay in damages (see paragraphs 18, 21 and 27 above) was excessively high, having an undue chilling effect on freedom of expression. (b) The Government 44. The Government argued that the applicant had known that the impugned statements were false. The interference with the applicant’s right to freedom of expression was enshrined in the law and had pursued the legitimate aim of protecting the right to honour and reputation of others. They contended that the applicant had made very offensive statements against the two associations concerned in a location which was of particular relevance to them, considering that they were often called on to express their views before Parliament on legal proposals, specifically on matters connected to the functioning of the justice system. In view of the seriousness of the accusations, the applicant had had the duty to support his allegations with evidence, which he had failed to do. Referring to the Court’s judgment in Morice v. France (no. 29369/10, § 128, ECHR 2015), the Government contended that the applicant’s conviction had been necessary in a democratic society to maintain the authority of the judiciary. 45. As regards the amounts of compensation in respect of non-pecuniary damage which the applicant had been ordered to pay, the Government submitted that they were proportionate to the damage caused. The Court’s assessment (a) Existence of an interference 46. The Court notes at the outset that the parties did not dispute that the applicant’s conviction on two counts of insulting a legal entity following his speech before Parliament had amounted to an “interference”, within the meaning of Article 10 § 2 of the Convention, with the exercise of his right to freedom of expression (see paragraphs 41 and 44 above). The Court sees no reason to hold otherwise. (b) Whether the interference was prescribed by law and pursued a legitimate aim 47. The Court notes that the criminal conviction of the applicant was based on Article 187 §§ 1 and 2 (a) and Article 183 § 2 of the CC (see paragraphs 18, 21, 34 and 37 above) and that his civil liability was based on Article 484 of the Civil Code (see paragraph 33 above). It therefore concludes that the interference at issue was “prescribed by law” within the meaning of Article 10 § 2 of the Convention. 48. The Government argued that the interference in question had pursued the legitimate aim of “the protection of the reputation or rights of others” (see paragraph 44 above). The Court points out in this connection that the issue of whether a legal entity can enjoy the right to reputation (including the scope of such right) is debatable. However, in this case, it is prepared to assume that this aim can be relied on (see, mutatis mutandis, Margulev v. Russia, no. 15449/09, § 45, 8 October 2019, and the references therein). It notes that the Supreme Court found that the allegations made by the applicant had also affected the judicial ethics by which judges and prosecutors were bound (see paragraph 28 above). The Court accepts that the interference also served the legitimate aim of protecting public confidence in the judiciary and thus maintaining the authority of the judiciary within the meaning of Article 10 § 2 of the Convention. However, it remains to be established whether the interference complained of was “necessary in a democratic society”. (c) Whether the interference was necessary in a democratic society (i) General principles 49. The Court refers to the general principles for assessing the necessity of an interference with the exercise of freedom of expression as set out in Morice (cited above, § 124); Bédat v. Switzerland ([GC], no. 56925/08, § 48, 29 March 2016); and Medžlis Islamske Zajednice Brčko and Others v. Bosnia and Herzegovina ([GC], no. 17224/11, § 75, 27 June 2017). 50. Under Article 10 § 2 of the Convention, there is little scope for restrictions on political speech or on debate on matters of public interest. Accordingly, a high level of protection of freedom of expression, with the authorities thus having a narrow margin of appreciation, will normally be accorded where the remarks concern a matter of public interest, in particular for remarks on the functioning of the judiciary (see Baka v. Hungary [GC], no. 20261/12, § 159, 23 June 2016, with further references). 51. A distinction must be made between statements of fact and value judgments. The existence of facts can be demonstrated, whereas the truth of value judgments is not susceptible of proof. The requirement to prove the truth of a value judgment is impossible to fulfil and infringes freedom of opinion itself, which is a fundamental part of the right secured by Article 10. However, where a statement amounts to a value judgment, the proportionality of an interference may depend on whether there exists a sufficient “factual basis” for the impugned statement: if there is not, that value judgment may prove excessive. In order to distinguish between a factual allegation and a value judgment, it is necessary to take account of the circumstances of the case and the general tone of the remarks, bearing in mind that assertions about matters of public interest may, on that basis, constitute value judgments rather than statements of fact (see Morice, cited above, § 126, with further references, and Miljević v. Croatia, no. 68317/13, § 56, 25 June 2020). 52. Furthermore, the Court has found that the most careful scrutiny on its part is called for when, as in the present case, the measures taken or sanctions imposed by the national authority are capable of discouraging the participation of the press in debates over matters of legitimate public concern (see Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 64, ECHR 1999 ‑ III). 53. The Court also notes that the protection of the reputation of a legal entity does not have the same strength as the protection of the reputation or rights of individuals (compare Uj v. Hungary, no. 23954/10, § 22, 19 July 2011, and Kharlamov v. Russia, no. 27447/07, § 29, 8 October 2015). The Court has previously emphasised that there is a difference between the reputation of a legal entity and the reputation of an individual as a member of society. Whereas the latter may have repercussions on the individual’s dignity, the former is devoid of that moral dimension. This difference is even more salient when it is a public authority that invokes its right to a reputation (see Margulev, cited above, § 45). (ii) Application of the above principles to the present case 54. Turning to the circumstances of the present case, the Court notes at the outset that the applicant, who is a well-known journalist (see paragraph 5 above) and had been invited by a political party to speak before the Parliamentary Commission on Ethics, Society and Culture (see paragraph 6 above), made the impugned statements while giving his opinion on freedom of expression and the media and how these were influenced by the political and economic classes. During his speech, he alleged that the ASJP and the SMMP, both of which played a role in policy-making decisions concerning judicial matters (see paragraphs 36 and 44 above), had shared confidential information with journalists to advance their political objectives (see paragraph 7 above). The Court finds that those issues were a matter of general interest to the community and that discussing them before Parliament formed part of a political debate, a field where a high level of protection of freedom of expression will normally be accorded, with the authorities thus having a narrow margin of appreciation (see the case-law cited in paragraph 50 above). 55. The Court further observes that the parliamentary session was open to the public and that journalists were present when the applicant spoke (see paragraph 6 above). It therefore finds it unsurprising that the impugned statements were widely disseminated in the media in the days following his speech (see paragraph 10 above). In addition, the applicant was interviewed immediately after the parliamentary session by a journalist from the newspaper Público who was present during his speech before Parliament (see paragraph 8 above). The applicant also gave a follow-up interview in which he reiterated his position, arguing that the ASJP and the SMMP should act with prudence and modesty (see paragraph 11 above). 56. With regard to the ASJP and the SMMP, the Court observes that they are reputable and well-known professional associations which are frequently invited to present their views before Parliament on legal proposals in matters connected to the functioning of justice (see paragraphs 36 and 44 above). 57. The domestic courts, in the criminal proceedings brought by the ASJP and the SMMP against the applicant (see paragraphs 12 and 15 above), assumed that the applicant had made only statements of fact which he knew were false and defamatory towards those associations (see paragraphs 23 and 28 above). The Court, for its part, notes that most of the applicant’s statements consisted of his personal opinions, the truthfulness of which is not susceptible of proof (see the case-law quoted in paragraph 51 above). The only statement of fact at issue is the applicant’s claim concerning the sharing, by the ASJP and the SMMP, of confidential information with journalists. During his trial, the applicant defended that statement, claiming that he had personally witnessed the exchange of a case file between a journalist and a member of the SMMP (see paragraph 17 above). The Court finds that the statements made by the applicant must be understood within the specific context in which they were made. Even if the journalist in issue had denied the applicant’s allegations about the exchange of the case file, thus leaving those allegations unsubstantiated, the applicant’s statement of fact can be considered to have gone beyond this specific allegation and to speak in a more general way about the information sharing by the two organisations. While this may be seen as an exaggerated and thus unfortunate formulation, the applicant’s comments may well be interpreted as an illustration of a broader societal critique regarding the inappropriate intervention of the judiciary as a whole in politics and the media, which was a subject of public interest and which he believed to be true (see paragraphs 7, 8 and 11 above). 58. The Court reiterates that the protection of the reputation of a legal entity does not have the same strength as the protection of the reputation or rights of individuals (see paragraphs 48 and 53 above). Furthermore, in the present case, it is imperative to take into account the context in which the applicant made his remarks, namely before a parliamentary commission dealing with the precise issue of freedom of expression and how the political and economic classes influenced the media and freedom of expression in the country (see paragraphs 5, 6 and 7 above). 59. The Court emphasizes that, according to its case-law, political speech is afforded special protection (see paragraph 50 above). Despite the fact that the applicant was not an elected representative, as an invited expert presenting his views before a parliamentary commission, he should have been afforded an elevated level of protection, as is the case for parliamentary and political speech (see, mutatis mutandis, Selahattin Demirtaş v. Turkey (no. 2) [GC], no. 14305/17, §§ 242-45, 22 December 2020, and the sources cited therein, and compare Mladina d.d. Ljubljana v. Slovenia, no. 20981/10, § 43, 17 April 2014). 60. Furthermore, the Court notes that, although the Lisbon Court of Appeal referred to the right to freedom of expression and the need for a proportionality assessment in passing (see paragraph 22 above), it based its decision solely on the right to the good name and reputation of the ASJP and the SMMP, without duly taking into account or examining in detail the criteria mentioned in paragraphs 50-53 above. 61. Lastly, turning to the nature and severity of the sanctions imposed (see Cumpănă and Mazăre v. Romania [GC], no. 33348/96, §§ 113-115, 10 June 2003), the Court observes not only that a fine of EUR 6,000 was imposed on the applicant as a criminal sanction, but also that he was ordered to pay EUR 25,000 to each of the associations in respect of non-pecuniary damage (see paragraphs 18, 21 and 27 above). Besides the deterrent effect of the criminal fine imposed, which was not modest (contrast Stoll v. Switzerland [GC], no. 69698/01, § 160, ECHR 2007-V), in the Court’s view the amounts in question were disproportionate to any potential damage caused to the reputation of the associations, which, as noted by both the applicant and the Government, are renowned entities often involved in legal decision-making (see paragraphs 42 and 44 above). The Court also considers that sanctions of this severity may have a chilling effect on the exercise of freedom of expression of persons called upon to participate in discussions of matters of general public interest and concerning institutions (compare Público - Comunicação Social, S.A. and Others v. Portugal, no. 39324/07, § 55, 7 December 2010; Bozhkov v. Bulgaria, no. 3316/04, § 55, 19 April 2011; Pinto Pinheiro Marques v. Portugal, no. 26671/09, § 46, 22 January 2015; Medipress-Sociedade Jornalística, Lda v. Portugal, no. 55442/12, § 45, 30 August 2016; and Pais Pires de Lima, cited above, §§ 66-67). Conclusion 62. The above elements lead the Court to conclude that the domestic courts failed to provide relevant and sufficient reasons to justify the interference with the applicant’s right to freedom of expression. The Court further considers that the domestic courts have exceeded the margin of appreciation afforded to them regarding limitations on debates of public interest and that there is no reasonable relationship of proportionality between, on the one hand, the restriction on the applicant’s right to freedom of expression and, on the other, the legitimate aim pursued. The Court concludes that the interference with the applicant’s right to freedom of expression was not necessary in a democratic society. 63. Accordingly, there has been a violation of Article 10 of the Convention. APPLICATION OF ARTICLE 41 OF THE CONVENTION 64. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” Damage 65. The applicant claimed 56,000 euros (EUR) in respect of pecuniary damage, corresponding to the fine of EUR 6,000 inflicted to him and the sum of EUR 50,000 in damages he had been ordered to pay to the ASJP and the SMMP. He did not claim any amount in respect of non-pecuniary damage. 66. The Government noted that the applicant had not paid the full amount of the compensation owed to the ASJP and the SMMP, but had only paid EUR 31,500. 67. The Court considers that an applicant is, in principle, entitled to recover any sums that he or she has paid in fines and costs, by reason of their direct link with the national court judgments which the Court found to be in breach of his or her right to freedom of expression (see Tavares de Almeida Fernandes and Almeida Fernandes v. Portugal, no. 31566/13, § 86, 17 January 2017). In the present case, in view of the documents submitted, the Court notes that the applicant paid the fine of EUR 6,000 which he was ordered to pay, as well as the sums of EUR 25,000 to the ASJP and EUR 500 to the SMMP, totalling EUR 31,500. The Court further observes that, following the death of the applicant, the debt which remained to be paid to the SMMP was inherited by his heirs. Although it appears that they are liable for it (see paragraphs 29-32 above), they have provided no evidence that they paid it. There is therefore no reason to award anything in respect of the remaining debt. In view of the documents submitted, the Court awards the applicant EUR 31,500. 68. As the applicant made no claim in respect of non-pecuniary damage, the Court is not called upon to make any award under that head. Costs and expenses 69. The applicant claimed EUR 14,320 in respect of legal fees and EUR 1,419.82 in respect of other costs and expenses related to the proceedings before the domestic courts. He also claimed EUR 2,783.85 in respect of legal fees and EUR 1,350.56 in respect of other costs and expenses related to the proceedings before the Court. 70. The Government contested the amounts claimed in respect of legal fees, finding them excessive 71. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum (see Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 54, ECHR 2000 ‑ XI). In the present case, regard being had to the documents in its possession and the above criteria, the Court awards EUR 19,874.23 covering costs under all heads, plus any tax that may be chargeable to the applicant’s heirs. Default interest 72. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 10 (freedom of expression) of the Convention, finding that the domestic courts had failed to give adequate reasoning for their interference with the applicant’s free-speech rights, and that the interference had not been necessary in a democratic society. The Court reiterated, in particular, that the protection of the reputation of a legal entity did not have the same strength as the protection of the reputation or rights of individuals. In the present case, it observed that the reasoning of the appellate court had been based solely on the rights of the professional associations, rather than balancing their rights with those of the applicant. The Court also found that the fine and the damages had been wholly disproportionate and had to have had a chilling effect on political discussion. |
737 | Noise pollution | II. RELEVANT DOMESTIC LAW A. The 2001 Territorial Organisation Act 50. Section 38(3) of the 2001 Territorial Organisation Act ( Закон за устройство на територията ) provides that a flat in a condominium may be converted into an office, entailing visits by outsiders, if it is on the ground floor and if all sanitary, hygienic, fire ‑ protection and technical requirements have been complied with. The conversion must be approved expressly, in writing and before a notary by all immediate neighbours of the premises whose conversion is proposed. Exceptionally, a flat on a higher floor may also be converted into an office, but in that case the conversion must be approved not only by the immediate neighbours but also by the condominium ’ s general meeting. 51. Section 38(4) provides that a flat on the ground floor of a condominium may be converted into a shop or other commercial premises, if all sanitary, hygienic, fire ‑ protection and technical requirements have been complied with and if a separate entrance which does not affect the passageway to the residential part of the building is made possible. The conversion must be approved by the condominium ’ s general meeting and requires the express written assent, certified by a notary, of all immediate neighbours of the premises whose conversion is proposed. 52. Under section 149(1) and (2) (2), a permit allowing the reconstruction of an existing building must be brought to the attention of the persons whose approval is required under section 38. They may challenge it before the Regional Building Control Directorate (section 149(3)). Under section 156(1), as worded between January 2001 and July 2003, building permits could, as a rule, be revoked only before the works had started. They could be revoked after that only if they were contrary to the zoning plan, substantially deviated from the building regulations and norms as regards distances to neighbouring buildings, or substantially deviated from the applicable safety requirements (section 156(2), as in force between January 2001 and July 2003). 53. Under section 178(1), as in force at the material time, it was prohibited to use a building or a part of it before the issuing of a use permit. If a building or a part of it was being used without such permit, the National Building Control Directorate had to ban the use and order that the building ’ s electricity and water supplies and heating be cut off (section 178(5), as in force at the material time). Applications for judicial review of such decisions do not have suspensive effect (section 217(1)(3)). Since such decisions cannot be appealed against before a higher administrative authority, they are immediately enforceable. However, their enforcement may be suspended by the court (section 217(2)). Under section 219, as in force at the material time, the courts had to examine applications for judicial review of such decisions in special fast ‑ track proceedings under Articles 126b ‑ 126e of the 1952 Code of Civil Procedure. 54. Under section 222(2)(2) ( now section 222(2)(4)), the National Building Control Directorate enforces decisions prohibiting the use of buildings or parts of them. In so doing, it may use technical devices and means (section 222(3)). If it encounters resistance, it may enlist the help of the police (section 222(5)). B. The 1951 Property Act 55. Section 50 of the 1951 Property Act ( Закон за собствеността ) provides that the owner of a piece of immovable property cannot carry out actions which impede, in more than the usual way, the use of the neighbouring properties. 56. Under section 45(1), the owner of a flat in a condominium may be evicted by resolution of the general meeting of the condominium if he or she, among other things, systematically breaches the internal regulations of the building or the resolutions of the general meeting for the internal order of the building, or acts contrary to good morals. However, the owner may request the district court to annul the resolution (section 46(1)). The eviction may take place only if the owner has not stopped the breach despite having been warned in writing that he or she will be evicted (section 45(2)). The district court may issue a writ of execution pursuant to the resolution, once it has become final (section 46(2)). According to a 1959 decision of the former Supreme Court, that does not preclude the owner from challenging his eviction in subsequent enforcement proceedings ( реш. № 4028 от 23 ноември 1959 г. по гр. д. № 5667/ 19 59 г., ВС, I г. о. ). There is no reported case ‑ law on the application of those provisions in recent decades. In May 1957 the former Supreme Court described that procedure as a means of last resort, to be used only where the owner persisted in his breach ( реш. № 1260 от 9 май 1957 г. по гр. д. № 3231/ 19 57 г., ВС, IV г. о. ). 57. Under section 109(1), an owner may request the cessation of any “unjustifiable activity” which hinders him in the exercise of his rights. 58. In an interpretative decision of 6 February 1985 ( тълк. реш. № 31 от 6 февруари 1985 г. по гр. д. № 10/1984 г ., ОСГК на ВС ) the former Supreme Court explained that this claim ( actio negatoria ) provided protection against unjustified interferences – whether direct or indirect – which prevented an owner from using fully his property. It can be used to declare such interferences unlawful and enjoin the persons concerned to stop them and remove their effects (for instance, demolish a building in a neighbouring property). Unlike decisions of the building control authorities, the courts ’ judgments pursuant to such claims finally determine the disputes between the aggrieved owner and the perpetrator of the interference, and may be executed by force. 59. The claim may be brought by the owner against any person, irrespective of whether or not they are owners of an adjoining property ( реш. № 1544 от 30 октомври 2002 г. по гр. д. № 18899/2001 г ., ВКС, IV г. о. ). It may be brought by the owner of a flat in a condominium against the owner of another flat ( реш. № 1818 от 13 ноември 2002 г. по гр. д. № 2183/2001 г., ВКС, ІV г. о. ). It may be joined to a tort claim in respect of any past loss ( реш. № 1272 от 16 септември 2004 г. по гр. д. № 660/2003 г., ВКС, ІV г. о. ). 60. Noise nuisance is actionable under section 109(1) ( реш. № 133 от 29 декември 198 8 г. по гр. д. № 100 /198 8 г ., ОСГК на ВС ). 61. For the purposes of section 109(1), a distinction needs to be made between buildings on neighbouring properties and activities taking place there; while the former may be lawful and thus not actionable, the latter may unduly impinge on neighbours ’ rights and thus be subject to injunctive relief ( реш. № 216 от 4 март 1985 г. по гр. д. № 43/85 г., ВС, IV г. о. ). 62. In some cases ( реш. № 1291 от 16 ноември 1992 г. по гр. д. № 1038/ 1992 г., ВС, ІV г. о., реш. № 1506 от 9 февруари 1993 г. по гр. д. № 1364/1992 г., ВС, ІV г. о. ) the former Supreme Court has associated the existence of “unjustifiable activity” resulting from constructions in neighbouring properties with failure to observe the building regulations. However, in other cases the former Supreme Court and the Supreme Court of Cassation have held that the question whether a reconstruction amounts to “unjustifiable activity” does not automatically hinge on whether it complies with the building regulations or has been approved by the authorities. The decisive factor appears to be whether it unduly interferes with the neighbours ’ enjoyment of their properties ( реш. № 1245 от 4 юли 1994 г. по гр. д. № 2149/1992 г., ВС, ІV г. о.; реш. № 411 от 2 март 1999 г. по гр. д. № 2190/98 г., ВКС, V г. о.; реш. № 1190 от 2 юли 1999 г. по гр. д. № 2042/1998 г., ВКС, ІV г. о.; реш. № 1319 от 5 юли 1999 г. по гр. д. № 501/1998 г., ВКС, ІV г. о.; реш. № 1446 от 26 юли 1999 г. по гр. д. № 256/1999 г., ВКС, ІV г. о.; реш. № 7 от 24 февруари 2000 г. по гр. д. № 1440/1999 г., ВКС, ІV г. о.; реш. № 1803 от 11 ноември 2002 г. по гр. д. № 2124/2001 г., ВКС, ІV г. о.; реш. № 1818 от 13 ноември 2002 г. по гр. д. № 2183/2001 г., ВКС, IV г. о.; реш. № 366 от 5 април 2004 г. по гр. д. № 2866/2002 г., ВКС, ІV г.о.; реш. № 316 от 18 февруари 2005 г. по гр. д. № 2746/2003 г., ВКС, ІV г. о.; реш. № 20 от 29 януари 2009 г. по гр. д. № 6259/ 2007 г., ВКС, ІV г. о.; реш. № 1039 от 2 октомври 2008 г ., по гр. д. № 4390/2007, ВКС, г. о.; опр. № 945 от 26 август 2009 г. по гр. д. № 751/2009 г. на ВКС, І г. о. ). C. The Regulations for Management, Order and Supervision in Condominiums 63. The Regulations for Management, Order and Supervision in Condominiums ( Правилник за управлението, реда и надзора в етажната собственост ), adopted in 1951, at the material time dealt with the internal organisation of condominiums. They contained detailed rules on the internal order of the buildings and the use of the common parts. 64. Regulation 12(1) provided that the resolutions of the condominium ’ s general meeting were immediately enforceable. The chairman of the condominium ’ s management council could apply to the competent district court to obtain a writ of execution. The resolutions for evicting an owner under section 45 of the 1951 Property Act (see paragraph 56 above) were not immediately enforceable. To obtain a writ of execution, the condominium had to show that it had warned the owner under section 45(2) of the Act ( regulation 12(2)). D. The 1997 Ministry of Internal Affairs Act 65. Under section 268 of the 1997 Ministry of Internal Affairs Act, the organs of the Ministry of Internal Affairs could stop the use of buildings, installations, etc., as well as stop all other activities which, among other things, posed a risk for public order. E. Regulations on Public Order and the Preservation of Municipal Property on the Territory of the Municipality of Sofia 66. Regulations on Public Order and the Preservation of Municipal Property on the Territory of the Municipality of Sofia ( Наредба № 1 за обществения ред и опазването на общинските имоти на територията на Столична голяма община ), issued by the Sofia City Council in May 1993 and superseded by similar regulations in March 2009, dealt with public order on the territory of the Municipality of Sofia. Regulation 3(1) prohibited noisy social events in residential buildings. Under regulation 3(3), noisy commercial activities in residential buildings were allowed only if their inhabitants agreed in writing. Under regulation 3(4), if no effective noise protection could be secured, the use of noisy devices and machines was allowed only from 9 a.m. to 2 p.m. and from 4 p.m. to 9 p.m. 67. Breaches of the Regulations were punishable by a fine ( regulation 24(1)). Repeat offenders were liable to an increased fine ( regulation 24(4)). If the repeated offence was connected to a profession or a trade, the penalty could also be a prohibition on engaging in such profession or trade for a period ranging from one month to two years ( ibid. ). 68. The supervisory organs, which included the police and officials authorised by the mayor ( regulation 29(1)), had to note down every breach of the regulations ( regulation 29(2)). F. Regulations on the Manner of Carrying On Commercial Activities on the Territory of the Municipality of Sofia 69. The Regulations on the Manner of Carrying On Commercial Activities on the Territory of the Municipality of Sofia ( Наредба за реда на провеждане на търговска дейност на територията на Столичната община ), issued by the Sofia City Council on 27 July 2001 and superseded by new regulations in January 2005, subjected commercial operations on the territory of Sofia to a licence requirement. Regulation 10(3) provided that when giving a licence the borough mayor had to fix the working hours of the operation in a way that ensured the tranquillity of others and public order. Under regulation 34(3) the borough mayors had to take all necessary steps to stop and punish breaches of the regulation. Such breaches were punishable by a fine and, in case of repetition, a ban on commercial activities for a period of six months (regulation 36(1)). G. Other relevant law 70. Section 16 of the 1979 Administrative Procedure Act, as in force at the material time, provided that administrative authorities could direct that a decision be immediately enforceable, if that was necessary to protect the life or health of individuals, prevent losses for the economy, or safeguard other material State or public interests, or if there was a risk that the enforcement would subsequently be frustrated or seriously hindered. 71. Section 1(1) of the 1988 State Responsibility for Damage Caused to Citizens Act (on 12 July 2006 its name was changed to “State and Municipalities Responsibility for Damage Act”) provides that the State is liable for damage suffered by private persons as a result of unlawful decisions, actions or omissions by civil servants committed in the course of or in connection with the performance of their duties. Section 1(2) provides that compensation for damage stemming from unlawful decisions may be claimed after the decisions concerned have been annulled in prior proceedings. THE LAW I. PRELIMINARY OBSERVATION 72. The Court notes that one of the applicants in application no. 21475/04, Mr Hristo Evtimov, died in 2007, while the case was pending before the Court, and that the two remaining applicants in that application, Ms Lilia Evtimova and Ms Kalina Evtimova ( his widow and daughter ) expressed their wish to pursue the application also on his behalf (see paragraph 2 above). It has not been disputed that they are entitled to do so, and the Court sees no reason to hold otherwise (see, mutatis mutandis, Kirilova and Others v. Bulgaria, nos. 4 2908/98, 44038/98, 44816/98 and 7319/02, § 85, 9 June 2005). II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 73. The applicants complained that the authorities had not taken effective measures to bring the nuisances from the computer club to an end. The Milevi sisters additionally complained about the passiveness of the authorities with regard to the electronic games club and the office in the flat adjoining theirs. They relied on Article 8 of the Convention, which provides, in so far as relevant: “1. Everyone has the right to respect for his private ... life [and] his home ... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 1. The parties ’ submissions 74. The Government submitted that the applicants had not exhausted domestic remedies. They pointed out, firstly, that the applicants had not tried to use civil ‑ law remedies against those allegedly interfering with their rights. They could have brought claims under section 109(1) in conjunction with section 50 of the 1951 Property Act, possibly coupled with tort claims. They could also have tried to use the eviction procedure under section 45 of that Act. Whilst there was no indication that that procedure had been used in recent years, it continued to be in force. Secondly, the applicants had failed to bring claims for compensation under section 1 of the State Responsibility for Damage Act (see paragraph 71 above) in respect of the authorities ’ allegedly unlawful actions or omissions. 75. The applicants replied that they had used the remedies which could directly provide them with adequate redress. Those that they had left unexplored were neither adequate nor effective. The eviction procedure under section 45 of the 1951 Property Act was only applicable to a flat ’ s owner, whereas in the present case the nuisances had been created by tenants. In any event, that procedure was quite burdensome when compared with the quick and effective remedies that they had used. A claim under section 109(1) of the Act would not have been effective either. Firstly, that provision was very general. Secondly, as was evident from the domestic courts ’ case ‑ law, any claim under it would have been premised on showing that the activities in a neighbouring flat were unlawful, which could be determined only in separate proceedings concerned with the legality of the works in the flat. The domestic case ‑ law also showed that that such a claim could be successful only if it touched upon the technical aspects of a reconstruction in a neighbouring property. Moreover, such a claim protected directly the integrity of a property, not the private lives or homes of those living in it. By contrast, section 38 of the 2001 Territorial Organisation Act and of regulation 10(3) of the Regulations on the Manner of Carrying On Commercial Activities on the Territory of the Municipality of Sofia were intended to safeguard precisely the interests protected under Article 8 of the Convention. By asking the authorities to apply those provisions, the applicants had had recourse to the most appropriate avenue of redress. 76. The applicants further submitted that the claim under section 1 of the State Responsibility for Damage Act was available solely in respect of administrative decisions, whereas their problem was due to the wording of the applicable legal provisions. Moreover, in order to prosecute a claim successfully, they were required to have previously obtained the annulment of the administrative decisions causing the damage. That would have been impossible to do in their case. 2. The Court ’ s assessment 77. Concerning the first limb of the Government ’ s objection, the Court observes that, according to its case ‑ law, where there is a choice of remedy the exhaustion requirement must be applied to reflect the practical realities of an applicant ’ s situation, so as to ensure the effective protection of the rights and freedoms guaranteed by the Convention (see V.C. v. Slovakia (dec.), no. 18968/07, 16 June 2009 ). Applicants who have used a remedy that is apparently effective and sufficient cannot be required to have also tried others that were available but probably no more likely to be successful (see Tătar v. Romania (dec.), no. 67021/01, § 60, 5 July 2007, and Oluić v. Croatia, no. 61260/08, § 35, 20 May 2010, with further references). 78. In the instant case, the applicants had a choice between several different avenues of redress. They could complain about the nuisances to the police, which they repeatedly did (see paragraphs 16 and 45 above). They could complain to the municipal authorities, which they also did (see paragraphs 19, 22 and 45 above). They could request the building control authorities to check the lawfulness of the modifications made in the flats generating the nuisances, which they also repeatedly did (see paragraphs 16, 17, 19 and 22 above). They could try to evict the operators of the clubs and the office through a resolution of the general meeting of the condominium, under section 45 of the 1951 Property Act (see paragraph 56 above), but they did not. Lastly, they could bring a claim under section 109(1) of that Act (see paragraph 57 above), which they did not do either, although in 2003 they contemplated bringing civil proceedings against their neighbours (see paragraph 40 above). The salient question is whether the remedies that the applicants did not use were more likely to bring them effective redress than those to which they had recourse. 79. Concerning eviction under section 45 of the 1951 Property Act, the Court observes that it was described by the domestic courts as a means of last resort (see paragraph 56 above ). Moreover, there are no reported examples of its being used in recent decades ( ibid.; see also, mutatis mutandis, Tătar, cited above, § 63). 80. As to the other civil ‑ law remedy suggested by the Government, a claim under section 109(1) of the 1951 Property Act, the Court notes that the prevailing case ‑ law of the national courts under that provision shows that in such proceedings they distinguish between nuisances resulting from the mere reconstruction of a neighbouring building and those stemming from activities there, regard noise as an actionable nuisance in itself, and are likelier to focus their attention not so much on the objective legality of a reconstruction but on its impact on the neighbours. If the courts allow a claim under section 109(1), they can enjoin the perpetrator of the nuisance to remove the reconstruction and/or stop or abate any activities which unduly interfere with the owner ’ s rights (see paragraphs 57 ‑ 62 above). It thus seems, contrary to what the applicants suggest, that such a claim would not have been necessarily premised upon the setting ‑ aside, in previous proceedings, of any building permits issued to the applicants ’ neighbours, and would have been capable of addressing the gist of the applicants ’ grievance and providing them with effective redress. 81. In its recent decision in Galev and Others the Court noted that in Bulgaria administrative proceedings concerning the lawfulness of a flat ’ s reconstruction centred on the legality of the changes to the building and – unlike a claim under section 109(1) – did not involve direct consideration of the question whether nuisances coming from such flat would unduly interfere with the neighbours ’ rights under Article 8 of the Convention (see Galev and Others v. Bulgaria (dec.), no. 18324/04, 29 September 2009 ). However, in the instant case the applicants managed to obtain from the building control authorities a decision prohibiting the use of the computer club (see paragraph 25 above). If enforced, that decision would have had the same effect as a court order or injunction made in proceedings under section 1 09 (1), namely abatement of the nuisance (see, mutatis mutandis, Oluić, cited above, § 36). The applicants fought a protracted battle in and out of the courts to obtain its enforcement (see paragraphs 27 ‑ 36 above). Their complaints to the police and to the municipal authorities also seemed capable of providing swift and effective redress in respect of the nuisances coming from the computer club, the electronic games club and the office. The applicable regulations empowered those authorities to intervene, stop the nuisances and sanction their perpetrators (see paragraphs 65 ‑ 69 above). Those procedures appear to be an effective, rapid avenue of redress, and could, if successful, have had the outcome that the applicants desired (see, mutatis mutandis, López Ostra v. Spain, 9 December 1994, § 36, Series A no. 303 ‑ C ). 82. Therefore, in the light of the available information and in the specific circumstances of the case, it cannot be said that the remedies that the applicants left unexplored were much more likely to provide them with effective redress than those that they actually used (see, mutatis mutandis, Paudicio v. Italy (dec.), no. 77606/01, 5 July 2005 ). In these circumstances, the complaint cannot be rejected for failure to exhaust domestic remedies ( see, mutatis mutandis, López Ostra, cited above § 38; Giacomelli v. Italy (dec.), no. 59909/00, 15 March 2005; Ruano Morcuende v. Spain (dec.), no. 75287/01, 6 September 2005; and Oluić, cited above § 37 ). 83. As to the second limb of the Government ’ s objection, the Court finds that a claim for damages against the State may sometimes be a sufficient remedy, especially where compensation is the only means of redressing the wrong suffered. In the instant case, however, compensation would not have been an alternative to the measures that the Bulgarian legal system should have afforded the applicants to enable them to obtain the abatement of the nuisances of which they were complaining (see, mutatis mutandis, Hornsby v. Greece, 19 March 1997, § 37, Reports of Judgments and Decisions 1997 ‑ II; Iatridis v. Greece [GC], no. 31107/96, § 47, ECHR 1999 ‑ II; and Paudicio, cited above). 84. The Government ’ s objection must therefore be dismissed. 85. The Court further considers that this complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 of the Convention or inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions 86. The Government submitted that unlike earlier cases in which the Court had found, on the basis of objective evidence, that the tolerable sound levels had been exceeded or that there had been other nuisances causing the applicants health problems, in the present case the available evidence did not show how or to what extent the activity of the two clubs and the office had caused the applicants an excessive detriment. Working with a computer was normally a quiet occupation. The applicants ’ allegations of broken doors and damage to the entrance and the passageways were not supported by evidence such as photographs or police records. The same went for the allegations of alcohol consumption in the building ’ s courtyard. Even if such things had taken place, it was not clear that they had in any way been connected with the operation of the computer club. The desire of those who lived in the building that there be no commercial activities in it was understandable, because any such activity entailed visits by outsiders, and thus inevitably interfered with the peaceful enjoyment of the property and created a risk of hooligan intrusions. However, it was a matter of proof in each case whether such risks had materialised. 87. The applicants submitted that they had sustained serious nuisances originating from the operation of the two clubs and the office. Unlike other cases examined by the Court, in the present case the operations of those outfits had been unlawful and unauthorised from the outset. The nuisances sustained by the Milevi sisters had been the most serious, owing to the location of their flat above the computer club. For years they had to endure day and night the noise generated by the computer club ’ s clientele, which could number up to three hundred people. The seriousness of the situation could be seen from the affidavits submitted by them. From August 2003 the Milevi sisters had in addition to endure the nuisances coming from the electronic games club, whose creation had entailed extensive works in the flat below theirs, with the pulling down of walls and the installation of high ‑ voltage electrical cabling and new windows. The resulting disturbances could be seen from a number of photographs submitted by the applicants and the affidavit drawn up by Mr Hristo Evtimov. While the disturbances coming from the flat converted into an office were obviously not as intense as the rest, they nonetheless aggravated the overall situation. The Evtimovi family, as a result of the location of their flat, had been disturbed only by the computer club. At first the main annoyance had been the noise generated by the club ’ s clients at night. After the club had moved to the other flat, which was closer to theirs, they had to endure the same interferences as the Milevi sisters. The fact that Ms Kalina Hristova had a young child made that all the more unbearable. 88. The applicants further pointed out that the building control authorities had failed to enforce their own decision to stop the club ’ s operations. The police and the municipal authorities, despite being able to rely on a number of legal provisions to take action, had failed to do anything to bring the nuisance to an end. The prosecuting authorities had also reacted passively, and the courts had, by failing to examine the application for judicial review in a reasonable time, deprived the applicants of effective protection of their rights. 2. The Court ’ s assessment 89. Summaries of the relevant principles may be found in paragraphs 53 ‑ 56 of the Court ’ s judgment in Moreno Gómez v. Spain ( no. 4143/02, ECHR 2004 ‑ X ) and paragraphs 44 ‑ 47 of the Court ’ s judgment in Oluić (cited above). (a) Were the nuisances sufficient to trigger the authorities ’ positive obligations under Article 8 90. The first question for decision is whether the nuisance reached the minimum level of severity required for it to amount to interference with the applicants ’ rights to respect for their homes and private and family lives. The assessment of that minimum is relative and depends on all the circumstances : the nuisance ’ s intensity and duration, its physical or mental effects, the general context, and whether the detriment complained of was negligible in comparison to the environmental hazards inherent to life in a modern city (see Fadeyeva v. Russia, no. 55723/00, §§ 66 ‑ 70, ECHR 2005 ‑ IV ). 91. The mere fact that the reconstructions carried out by the applicants ’ neighbours were not lawful is not sufficient to ground the assertion that the applicants ’ rights under Article 8 have been interfered with (see Furlepa v. Poland (dec.), no. 62101/00, 18 March 2008 ). The Court must rather examine, on the basis of all the material in the file, whether the alleged nuisances were sufficiently serious to affect adversely the applicants ’ enjoyment of the amenities of their homes and the quality of their private and family lives (see Galev and Others, cited above ). 92. The Court and the former Commission have dealt with the question whether excessive noise can trigger the application of Article 8 in a number of cases. Two applications raising the point in connection with aircraft noise were declared admissible but later settled (see Arrondelle v. the United Kingdom, no. 7889/77, Commission decision of 15 July 1980, Decisions and Reports (DR) 19, p. 186, and Commission ’ s report of 13 May 1982, unreported, and Baggs v. the United Kingdom, no. 9310/81, Commission decision of 16 October 1985, DR 44, p. 13, and Commission ’ s report of 8 July 1987, unreported ). In another case also concerning aircraft noise the Commission found, on the facts, that the noise level amounted to an interference (see Rayner v. the United Kingdom, no. 9310/81, Commission decision of 16 July 1986, DR 47, p. 5). In a case concerning noise from a military shooting range the Commission found, again on the facts, that the level and frequency of the nuisance were not sufficient to engage Article 8 (see Vearncombe and Others v. the United Kingdom and the Federal Republic of Germany, no. 12816/87, Commission decision of 18 January 1989, DR 59, p. 186 ). In a case concerning noise from ferries, the Commission left the point open, as it found justification for the interference (see G.A. v. Sweden, no. 12671/87, Commission decision of 13 March 1989, unreported). In a case concerning noise and other nuisances from a nearby nuclear power station, the Commission was satisfied, based on findings made by the domestic courts, that Article 8 was engaged (see S. v. France, no. 13728/88, Commission decision of 17 May 1990, DR 65, p. 25 0 ). In a case concerning noise from road works, the Commission found, based on findings made in domestic proceedings, that the noise level was not higher than what was usually inherent to life in a modern city (see Trouche v. France, no. 19867/92, Commission decision of 1 September 1993, unreported ). 93. The question first arose before the Court, albeit obliquely, in Powell and Rayner v. the United Kingdom ( 21 February 1990, §§ 40 ‑ 46, Series A no. 172). Later, in Hatton and Others v. the United Kingdom ([GC], no. 36022/97, §§ 116 ‑ 18, ECHR 2003 ‑ VIII), and Ashworth and Others v. the United Kingdom ( (dec.), no. 39561/98, 20 January 2004 ), both concerning aircraft noise, the Court was satisfied, based on official data about the noise levels, that Article 8 was engaged, even though in the former case the applicants had not submitted evidence showing the degree of discomfort suffered by each of them personally. Similarly, in Moreno Gómez ( cited above, §§ 59 and 60 ), the Court accepted that Article 8 was engaged, for two reasons. First, the authorities had designated the area in which the applicant lived as an “acoustically saturated zone”, which, under Spanish law, was an area where local residents were exposed to high noise levels causing them serious disturbance. Secondly, the fact that the maximum permitted noise levels had been exceeded had been confirmed on a number of occasions by the authorities. In Ruano Morcuende ( cited above ), concerning vibrations from an electric transformer installed in a room adjoining the applicant ’ s flat, the Court was likewise satisfied that Article 8 was engaged. By contrast, in Fägerskiöld v. Sweden ( (dec.), no. 37664/04, 26 February 2008 ), which concerned noise from a wind turbine, the Court found, on the basis of unequivocal data from tests carried out by the authorities, that the noise levels in the applicant ’ s house were not as high as to engage Article 8. It reached the same conclusion in Furlepa (cited above), which concerned noise from a car ‑ repair garage, on the basis of the applicant ’ s failure to put forward sufficient evidence. In Borysiewicz v. Poland ( no. 71146/01, §§ 52 ‑ 55, 1 July 2008), which concerned noise from a tailoring workshop, the Court likewise found that the applicant had failed to submit enough evidence to show that the level of noise in her home had exceeded the norms set by domestic law or by the relevant international standards, or had gone beyond what was inherent to life in a modern town. It came to the same conclusion in Leon and Agnieszka Kania v. Poland ( no. 12605/03, §§ 101 ‑ 03, 21 July 2009), which concerned noise from a lorry maintenance and metal ‑ cutting and grinding workshop, and in Galev and Others (cited above ), which concerned noise from a dentist ’ s surgery. More recently, in Oluić (cited above, §§ 52 ‑ 62 ), which concerned noise from a bar operating in the house where the applicant lived, the Court was satisfied, on the basis of a number of tests carried out over a period of eight years, that the level of noise there exceeded the maximum permitted under Croatian law and under the relevant international standards. 94. In the instant case, the Court finds that it is appropriate to distinguish between the nuisances coming from the office in the flat adjacent to that of the Milevi sisters, the nuisances coming from the electronic games club, and the nuisances coming from the computer club. 95. In the Court ’ s view, it cannot be assumed that the noise emanating from an office, whether emitted by office equipment, generated in the normal process of work, or resulting from staff and clients entering and leaving the premises, as a rule rises above the usual level of noise in a block of flats in a modern town. Moreover, any such disturbances are as a rule likely to be restricted to working hours and are unlikely to reach very high levels (see, mutatis mutandis, Galev and Others, cited above). The Milevi sisters have not put forward evidence showing that as a result of the operation of the office the level of noise in their flat has risen above acceptable levels. For those reasons, the Court finds that the alleged disturbances from the operation of the office were not sufficient to trigger the application of Article 8. 96. Nor is the Court persuaded that the nuisances coming from the electronic games club were sufficient to engage Article 8. The fact of works being carried out in a neighbouring flat cannot be regarded, on its own, as a disturbance exceeding the normal hazards inherent to life in a modern town (see, mutatis mutandis, Trouche, cited above, as well as Kyrtatos v. Greece, no. 41666/98, § 54, ECHR 2003 ‑ VI (extracts) ). There is no indication that the works in question lasted an unreasonably long time or were noisier than is usual for such works. Moreover, the Milevi sisters have not submitted evidence showing the level of disturbance which they suffered from that club ’ s operations. 97. The same cannot, however, be said of the computer club. The evidence produced by the applicants shows that it operated round the clock, seven days a week, for a period of approximately four years. It also shows that the club ’ s clients, who must have been quite numerous, given that it had almost fifty computers, were generating a high level of noise, both inside and outside the building, and were creating various other disturbances (see paragraph 13 above). It cannot be overlooked that those activities, which may be seen as an natural corollary of the club ’ s operations, were taking place in and around a building which had an essentially residential character (see, mutatis mutandis, Oluić, cited above § 61 in limine ). In these circumstances, even though the case file does not contain exact measurements of the noise levels inside the applicants ’ flats, the Court is satisfied that the disturbance affecting the applicants ’ homes and their private and family lives reached the minimum level of severity which required the authorities to implement measures to protect the applicants from such disturbance (see, mutatis mutandis, Moreno Gómez, § 60, and Oluić, § 62, both cited above ). (b) Did the authorities discharge their duty to take steps to abate the nuisances coming from the computer club 98. The Court first observes that in cases arising from individual applications it is not its task to review domestic law in the abstract, but to examine the manner in which that law has been applied to the applicants (see, among other authorities, Sommerfeld v. Germany [GC], no. 31871/96, § 86, ECHR 2003 ‑ VIII). It should also be pointed out that, in view of the margin of appreciation enjoyed by the national authorities in that domain, it is not in the Court ’ s remit to determine what exactly should have been done to stop or reduce the disturbance. However, the Court can assess whether the authorities approached the matter with due diligence and gave consideration to all competing interests (see, mutatis mutandis, Fadeyeva, cited above, § 128). In carrying out that assessment, it will have regard to, among other things, whether the national authorities acted in conformity with domestic law (ibid., §§ 96 ‑ 98). 99. The Court notes that despite receiving a number of complaints and establishing that the club was operating without the requisite licence, the police and the municipal authorities failed to take effective steps to ascertain the effect of its operations on the well ‑ being of those who, like the applicants, resided in the same building, or to exercise their powers (see paragraphs 66 ‑ 69 above) to check the nuisances resulting from the club ’ s round ‑ the ‑ clock operations, which appeared to be in clear breach of the regulations on noise in residential buildings ( ibid. ). On the contrary, on 26 June 2002 the municipality approved a plan for the conversion of the flat in which the club was located into commercial premises, without trying to establish whether the domestic ‑ law rules intended to reconcile the existence of commercial outfits in residential buildings with the well ‑ being of the persons living in such buildings had been complied with (see paragraphs 21, 50 and 51 above). It is true that the municipality subsequently subjected the club ’ s operating permit to the condition that its clients enter through the back door and not through the passageway used by the building ’ s residents (see paragraph 23 above). However, that condition was imposed at the end of November 2003, some two and a half years after the club had started operating, and there is no indication that the authorities took any steps to ensure that it was being complied with. According to the applicants, the condition could not be met owing to the building ’ s layout ( ibid. ), and the authorities later found that it was being completely disregarded by the club (see paragraph 37 above). Rules intended to safeguard guaranteed rights serve little purpose if they are not properly enforced (see Moreno Gómez, cited above, § 61). 100. Other State authorities and the Sofia City Court also contributed to prolonging the situation. Following complaints by the applicants, on 2 July 2002 the building control authorities prohibited the use of the flat used as a computer club and ordered that its electricity and water supplies be cut off (see paragraph 25 above). Under the applicable law, that prohibition was immediately enforceable for the purpose of, as noted by the Supreme Administrative Court, protecting the health of those concerned (see paragraphs 32 and 53 above). However, as a result of the two decisions of the Sofia City Court to suspend its enforcement (both of which were later overturned on appeal) and of the passiveness of the authorities, the prohibition was never enforced, despite numerous requests by the applicants (see paragraphs 28 ‑ 33 above). Those developments, coupled with the inordinate protraction of the proceedings for judicial review of that prohibition ( instead of following a fast ‑ track procedure as required by domestic law, for nearly two years the Sofia City Court barely managed to hold two hearings (see paragraphs 27, 34 ‑ 36 and 53 in fine above) ), prevented the applicants from obtaining effective protection of their rights (see, mutatis mutandis, Giacomelli v. Italy, no. 59909/00, §§ 93 and 94, ECHR 2006 ‑ XII, and Oluić, cited above, §§ 63 ‑ 65). 101. In these circumstances, the Court concludes that the respondent State failed to approach the matter with due diligence or to give proper consideration to all competing interests, and thus to discharge its positive obligation to ensure the applicants ’ right to respect for their homes and their private and family lives. 102. There has therefore been a violation of Article 8 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 103. The applicants alleged that the passiveness of the authorities had deprived them of effective remedies for the protection of their rights under Article 8. They relied on Article 13 of the Convention, which provides as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 104. The parties ’ submissions have been summarised in paragraphs 74 ‑ 76 and 86 ‑ 88 above. 105. The Court finds that this complaint is linked to the one examined above and must therefore likewise be declared admissible. However, it observes that the applicants ’ complaint about the lack of effective remedies allowing them to protect their right to respect for their private lives and their homes overlaps with the matters examined under Article 8. The Court therefore finds that no separate issue arises under Article 13 (see, mutatis mutandis, Tysiąc v. Poland, no. 5410/03, § 135, ECHR 2007 ‑ IV ). IV. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 106. The applicants alleged that the length of the proceedings for judicial review of the decision of 2 July 2002 had been unreasonable. They relied on Article 6 § 1 of the Convention, which provides, in so far as relevant: “In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...” 107. The Government made no submissions in relation to this complaint. 108. The applicants submitted that the decision of 2 July 2002 had been intended to protect their rights to use their flats. The outcome of the judicial review proceedings had therefore been decisive for those rights. The applicants had, moreover, actually taken part in the proceedings, as evidenced by the records of the hearings, the summonses to the parties, and the fact that the Supreme Administrative Court had on three occasions ruled on their appeals and complaints. The applicants went on to describe in detail the unfolding of the proceedings, pointing out that even though under domestic law such proceedings should follow a fast track, they had taken almost two years for only one level of jurisdiction. 109. The Court finds that this complaint is linked to those examined above and must therefore likewise be declared admissible. However, since it took the length of the proceedings in question into account under Article 8 (see paragraph 100 above), the Court finds that it is not necessary to examine that issue separately under Article 6 § 1 (see, mutatis mutandis, W. v. the United Kingdom, 8 July 1987, § 84, Series A no. 121, and Mihailova v. Bulgaria, no. 35978/02, § 107, 12 January 2006). V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 110. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Pecuniary damage 111. The Milevi sisters claimed 46,600 euros (EUR) in respect of pecuniary damage. They submitted that the unabated nuisance from which they had been suffering and the ensuing worsening of their health had forced them to move out of their flat. As a result, in March 2004 they had had to sell it urgently for EUR 61,000, which was below its fair market value. They presented an expert ’ s report which concluded that the flat ’ s fair market value at the time of the sale was 1.6 times higher than the price at which the applicants had sold it. The applicants claimed the difference, which amounted to EUR 36,600. They further pointed out that, as evidenced by the same report, since the end of 2004 the prices of immovable property in Sofia had soared, the increase being more pronounced in the centre than in the neighbourhood where they had bought another flat in April 2004. They said that if they had not been forced to sell their original flat in March 2004 with urgency, they could have sold it later for a much higher price, which had been only partly offset by the concomitant increase in the market value of their new flat. Whilst it was very difficult to calculate precisely the resulting loss of profit, EUR 10,000 seemed like a reasonable estimate. 112. The Evtimovi family made no claim in respect of pecuniary damage. 113. The Government submitted that the Milevi sisters had failed to prove that their decision to sell their flat had a direct causal link with the violation of the Convention. Even if their worsened health had had a certain connection with that violation, they could have chosen other methods to avoid the nuisance, such as letting their flat and renting a flat elsewhere. In any event, the amounts claimed had no objective basis. 114. According to the Court ’ s case ‑ law, there must exist a clear causal connection between the damage claimed by an applicant and the violation found ( see, as a recent authority, Bykov v. Russia [GC], no. 4378/02, § 110, ECHR 2009 ‑ ...). In López Ostra the Court accepted that the depreciation of a property as a result of severe environmental degradation and the need to move house on account of that degradation had a sufficient causal connection with the violation of Article 8 (see López Ostra, cited above, § 65). However, unlike that case, the nuisance in the instant case was not of such a nature or intensity as to bring about a clear reduction in the market value of the applicants ’ flat (see S. v. France, p. 262, and Hatton and Others, § 127, and contrast Baggs, p. 15, all cited above). There is nothing to indicate that the factors which caused the Milevi sisters to wish to move out of the flat would necessarily diminish its value in the eyes of a prospective buyer intending to put it to non ‑ residential use. Indeed, it cannot be overlooked that the flat was purchased by a company (see paragraph 9 above). Nor is it apparent that the applicants were forced to sell the flat in such urgency as to be unable to obtain a fair market price for it. The actual price agreed between them and the buyer could be the result of a multitude of factors about which the Court is unable to speculate. The Court is therefore not satisfied that the alleged undervalue at which the Milevi sisters sold their flat and the ensuing loss of profit had a sufficient causal link with the violation of Article 8, and makes no award under this head. B. Non ‑ pecuniary damage 115. The Milevi sisters claimed EUR 25,000 each in respect of non ‑ pecuniary damage. They referred to the intolerable conditions which they had endured for a number of years, chiefly as a result of the operations of the computer club. Those disturbances had had a very negative effect on their health and had eventually forced them to sell their flat, in which they had lived since 1963, and move elsewhere. They compared their situation to that of Ms López Ostra (case cited above) and said that they deserved a similar amount in compensation. 116. The Evtimovi family claimed EUR 10,000 each in respect of non ‑ pecuniary damage. They also claimed EUR 10,000 in respect of Ms Kalina Evtimova ’ s daughter. They likewise referred to the conditions in which they had had to live for a number of years, and laid emphasis on the passive attitude of the authorities. 117. The Government submitted that the claims were exorbitant, and that any award under this head should take into account the standard of living in Bulgaria and the diminishing incomes in the country as a result of the global economic crisis. 118. The Court starts by observing that there are no grounds to make an award to Ms Kalina Evtimova ’ s daughter. It may of course be assumed that the nuisance affected her as much as – if not more than – the other members of the Evtimovi family. However, the term “ injured party ” in Article 41 is synonymous with the term “ victim ” in Article 34 (former Article 25) of the Convention (see De Wilde, Ooms and Versyp v. Belgium (Article 50), 10 March 1972, § 23, Series A no. 14, and Airey v. Ireland (Article 50), 6 February 1981, § 9, Series A no. 41 ). There was nothing to prevent Ms Kalina Evtimova ’ s daughter from applying to the Court through her legal representatives and claiming to be a victim of the violation in her own right. However, she did not do so (see Yaşa v. Turkey, 2 September 1998, § 124, Reports 1998 ‑ VI, and Angelova and Iliev v. Bulgaria, no. 55523/00, § 129, ECHR 2007 ‑ IX, and contrast Kaya v. Turkey, 19 February 1998, § 122, Reports 1 998 ‑ I, and Ergi v. Turkey, 28 July 1998, § 110, Reports 1998 ‑ IV ). That being said, the Court cannot overlook the fact that Ms Kalina Evtimova herself must have experienced additional distress as a result of the effects of the nuisance on her young child (see López Ostra, cited above, § 65). To that extent, the Court, in assessing the award to be made to Ms Kalina Evtimova, will take into account the suffering of her daughter. 119. The Court considers that the violation of Article 8 caused each of the applicants non ‑ pecuniary damage which cannot, however, be precisely calculated (see, mutatis mutandis, Taşkın and Others v. Turkey, no. 46117/99, § 144, ECHR 2004 ‑ X ). Having regard to the accounts given by the applicants of the effect of the nuisance on each of them, and making its award on an equitable basis, as required under Article 41, the Court awards EUR 7 ,000 to Ms Pepa Mileva, EUR 7 ,000 to Ms Meri Mileva, EUR 6,000 to Mr Hristo Evtimov (to be paid to his heirs who continued the proceedings in his stead – see paragraphs 2 and 72 above), EUR 6,000 to Ms Lilia Evtimova, and EUR 8,000 to Ms Kalina Evtimova. To those amounts is to be added any tax that may be chargeable. C. Costs and expenses 120. The Milevi sisters sought reimbursement of EUR 8,310 incurred in fees for fifty ‑ seven hours of work by their lawyer on the domestic proceedings, at EUR 50 per hour, and thirty ‑ nine hours of work by the same lawyer on the proceedings before the Court, at EUR 140 per hour. They submitted a fee agreement and a time ‑ sheet. 121. The Evtimovi family sought reimbursement of EUR 2,190 incurred in fees for six hours of work by their lawyer on the domestic proceedings, at EUR 50 per hour, and thirteen and half hours of work by the same lawyer on the proceedings before the Court, at EUR 140 per hour. They also submitted a fee agreement and a time ‑ sheet. 122. The Government submitted that, in as much as the applicants had not relied on Article 8 before the domestic authorities, the costs for the domestic proceedings had not been incurred for the purpose of challenging or establishing a breach of the Convention. They also argued that the claim in respect of the Strasbourg costs was unrealistic and exorbitant, especially when seen against the backdrop of the standard of living in Bulgaria and the minimal hourly wage there. There was furthermore no reason to charge a higher hourly rate for the Strasbourg proceedings, because they concerned the same issues as the domestic proceedings. The Government suggested that in assessing the quantum of the award the Court should have regard to the rules governing the amounts payable to counsel for their appearance before the national courts. 123. According to the Court ’ s case ‑ law, costs and expenses claimed under Article 41 must have been actually and necessarily incurred and reasonable as to quantum. Costs incurred to prevent or obtain redress for a violation of the Convention through the domestic legal order are recoverable under that provision (see, among other authorities, Buck v. Germany, no. 41604/98, § 66, ECHR 2005 ‑ IV, and, more recently, Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 159, 6 July 2010 ). 124. As regards the first point made by the Government, the Court observes that the costs attributable to the domestic proceedings were incurred by the applicants in an endeavour to assert their rights to respect for their private lives and their homes, rights guaranteed by the Convention. Moreover, the domestic proceedings were a necessary pre ‑ condition for referral of the matter to the Court (see, mutatis mutandis, Sunday Times v. the United Kingdom (no. 1) (Article 50), 6 November 1980, § 18, Series A no. 38 ). Those costs are therefore in principle recoverable under Article 41. 125. Concerning the Strasbourg costs, the Court observes that when considering a claim for just satisfaction it is not bound by domestic scales or standards (see, as a recent authority, Öneryıldız v. Turkey [GC], no. 48939/99, § 175, ECHR 2004 ‑ XII ). Nor can it accept the Government ’ s contention that the applicants ’ submissions in the domestic proceedings and to this Court were substantially the same (see Smith and Grady v. the United Kingdom (just satisfaction), nos. 33985/96 and 33986/96, § 30, ECHR 2000 ‑ IX ). In view of the number of domestic procedures involved and the issues raised in the Strasbourg proceedings, the number of hours billed by the applicants ’ lawyer does not appear unrealistic. However, that lawyer represented all applicants, both at the domestic level and in the Strasbourg proceedings. Given that the two applications concerned overlapping facts and complaints, a certain reduction appears appropriate (see Kirilova and Others, cited above, § 149 in fine, and Velikovi and Others v. Bulgaria, nos. 43278/98, 45437/99, 48014/99, 48380/99, 51362/99, 53367/99, 60036/00, 73465/01 and 194/02, § 269, 15 March 2007 ). Moreover, the hourly rate charged by the lawyer for the Strasbourg proceedings is roughly double the rates charged in recent cases against Bulgaria of similar or greater complexity (see Velikovi and Others, cited above, §§ 268 and 274; Holy Synod of the Bulgarian Orthodox Church (Metropolitan Inokentiy) and Others v. Bulgaria, nos. 412/03 and 35677/04, § 183, 22 January 2009; Bulves AD v. Bulgaria, no. 3991/03, § 85, 22 January 2009; Kolevi v. Bulgaria, no. 1108/02, § 221, 5 November 2009; and Mutishev and Others v. Bulgaria, no. 18967/03, § 160, 3 December 2009 ). It cannot therefore be regarded as reasonable as to quantum. 126. Having regard to the materials in its possession and the above considerations, the Court finds it reasonable to award jointly to all applicants the sum of EUR 4 ,000, plus any tax that may be chargeable to them, to cover costs under all heads. D. Default interest 127. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 8 of the Convention, finding that Bulgaria had failed to approach the matter with due diligence and thus to discharge its positive obligation to ensure the applicants’ respect for their homes and their private and family lives. In particular, despite receiving many complaints and being aware that the club was operating without the necessary license, the police and the municipal authorities had failed to take action to protect the well-being of the applicants in their homes. For instance, although the building-control authorities had in July 2002 prohibited the use of the flat as a computer club, their decision had never been enforced, partly as a result of two court decisions to suspend its enforcement and the inordinate protraction of those proceedings. In addition, it was not until November 2003, some two and a half years after the club had started functioning, that the municipality had imposed a condition requiring the club’s managers to have clients enter the club through a rear door. That condition had been completely disregarded by the club and the applicants submitted that it could not, in any event, have been met given the building’s layout. |
429 | Challenging the lawfulness of detention | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Code of Administrative Offences 23. Article 18.8 of the current version of the Code provides as follows : “1. An infringement by a foreign national or a stateless person of the procedure for entry to the Russian Federation or the regulations on stay or residence in the Russian Federation, including ... a breach of the regulations on migration, travel or choice of permanent or temporary residence ... shall be punishable by an administrative fine ... and by possible administrative removal from the Russian Federation. 1.1. A breach of the regulations on stay or residence in the Russian Federation committed by a foreign national or a stateless person who has no document confirming the right to reside or stay in the Russian Federation ... shall be punishable by an administrative fine of between RUB 2,000 and 5,000 and by administrative removal from the Russian Federation. ... 3. The offences described in paragraphs 1, 1.1 ... above, if committed in the federal-level cities of Moscow and St Petersburg or in the Moscow or Leningrad Regions, shall be punishable by an administrative fine of between RUB 5,000 and 7,000 and by administrative removal from the Russian Federation. ” Paragraphs 1.1 and 3 of Article 18.8 were added by Federal Law no. 207-FZ of 23 July 2013. 24. Article 32.10 ( 5 ), in force at the time the applicant ’ s detention was ordered, allowed domestic courts to order the detention of a foreign national or stateless person with a view to his or her administrative removal. As from 1 January 2012, the relevant provisions have been contained in Articles 3.10 (5) and 27.19 (3). B. Case-law of the Constitutional Court 25. In its decision no. 6-P dated 17 February 1998, the Constitutional Court held, in particular, as follows: “It follows from Article 22 of the Constitution of the Russian Federation, taken in conjunction with its Article 55 (paragraphs 2 and 3), that detention for an indefinite period cannot be regarded a permissible limitation on the right to liberty and personal security, and is in fact a violation of that right. Therefore the provisions ... concerning detention pending expulsion should not serve as a basis for detention for an indefinite period even when the expulsion of a stateless person is delayed because no State is prepared to accept that person ... Otherwise detention would turn from a measure necessary to ensure the execution of an expulsion order into a ... punishment which is not provided under Russian law and which is incompatible with the provisions of the Constitution of the Russian Federation.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 26. The applicant complained that the conditions of his detention in the detention centre for aliens had been incompatible with Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 27. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 28. The Government acknowledged a violation of Article 3 of the Convention and stated that the conditions of the applicant ’ s detention had fallen short of the applicable standards. 29. The applicant submitted that the conditions of his detention in the detention centre for aliens, which had been designed for short periods of detention not exceeding fifteen days but in which he had spent two years, had been inhuman and degrading. 30. Article 3, as the Court has observed on many occasions, enshrines one of the fundamental values of a democratic society. The Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances or the victim ’ s behaviour (see Balogh v. Hungary, no. 47940/99, § 44, 20 July 2004, and Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV). The Court has consistently stressed that the suffering and humiliation involved must, for a violation to be found, go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment. Measures depriving a person of his liberty may often involve such an element. In accordance with Article 3 of the Convention, the State must ensure that a person is detained in conditions which are compatible with respect for his human dignity and that the manner and method of the execution of the measure do not subject him to distress or hardship exceeding the unavoidable level of suffering inherent in detention (see Kudła v. Poland [GC], no. 30210/96, §§ 92-94, ECHR 2000-XI). 31. Turning to the facts of the present case, the Court notes that the applicant spent two years and ten days in the detention centre for aliens, which appears to have been designed for short-term detention. This accounts for the rudimentary state of the centre ’ s facilities. There was no running water or toilets in the cells. Hygiene facilities were manifestly inadequate in relation to the number of detainees. Outdoor exercise was sporadic and of an extremely limited duration. The Court reiterates in this connection its well-established case-law that the mere fact of holding an applicant for a long period of time in an unadapted cell designed only for short-term detention discloses a violation of Article 3 (see Aslanis v. Greece, no. 36401/10, § 38, 17 October 2013, with further references; Kuptsov and Kuptsova v. Russia, no. 6110/03, § § 69-72, 3 March 2011; Khristoforov v. Russia, no. 11336/06, §§ 23-27, 29 April 2010, and Shchebet v. Russia, no. 16074/07, §§ 84-96, 12 June 2008). 32. In addition, the detention centre for aliens was constantly and severely overcrowded. During the first one and a half years of his detention the applicant disposed of less than two square metres of personal space. In the final ten months his situation improved slightly, and periods of overcrowding, with eight people sharing the eighteen-square-metre cell, alternated with periods of relative normality when only four of them were present in the cell. However, the latter periods must be seen against the background of virtually non-existent outdoor exercise and deficient hygiene facilities. In previous cases where the applicants disposed of less than three square metres of personal space, the Court found that the overcrowding was severe enough to justify, in its own right, a finding of a violation of Article 3 of the Convention (see Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § 145, 10 January 2012 ). 33. The Government did not dispute the applicant ’ s account of the conditions of his detention. They also conceded that those conditions had fallen short of the standards set forth in Article 3 of the Convention. 34. The Court finds that the applicant had to endure conditions of detention which must have caused him considerable mental and physical suffering, diminishing his human dignity. The conditions of his detention thus amounted to inhuman and degrading treatment within the meaning of Article 3 of the Convention, even in the absence of any positive intention to humiliate or debase the applicant on the part of any domestic authority. 35. There has accordingly been a violation of Article 3 of the Convention. II. ALLEGED VIOLATIONS OF ARTICLE 5 OF THE CONVENTION 36. The applicant complained that his detention pending expulsion had been in breach of Article 5 § 1 (f) of the Convention on account of its excessive length and the obvious impossibility to enforce the order for his expulsion to Uzbekistan. He further complained under Article 5 § 4 of the Convention that he had been unable to obtain a judicial review of his detention. The relevant parts of Article 5 provide as follows : “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition. ... 4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. ...” A. Admissibility 37. The Court notes that this part of the application is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 38. The Court will consider firstly whether there existed a possibility of effective supervision over unlawful or arbitrary detention and secondly whether the applicant ’ s detention was compatible with the requirements of Article 5 § 1 (f) (see Azimov v. Russia, no. 67474/11, § 146 et seq., 18 April 2013; Louled Massoud v. Malta, no. 24340/08, § 29 et seq., 27 July 2010; and Muminov v. Russia, no. 42502/06, § 112 et seq., 11 December 2008 ). 1. Compliance with Article 5 § 4 of the Convention 39. The Government acknowledged a violation of Article 5 § 4. 40. The applicant submitted that Russian law does not provide for any possibility to obtain a meaningful judicial review of the detention of an individual who is detained pending administrative expulsion (he referred, by way of comparison, to Tabesh v. Greece, no. 8256/07, § 62, 26 November 2009 ). Such detention may last up to two years but there is no periodic judicial review of it. His applications for review were dismissed in a summary fashion first by the Sestroretsk Town Court and later by the Krasnoselskiy District Court. In both cases, the St Petersburg City Court upheld the lower courts ’ decisions. 41. The Court reiterates that the purpose of Article 5 § 4 is to guarantee to persons who are arrested and detained the right to judicial supervision of the lawfulness of the measure to which they are thereby subjected. A remedy must be made available during a person ’ s detention to allow that person to obtain speedy judicial review of its lawfulness. That review should be capable of leading, where appropriate, to release. The existence of the remedy required by Article 5 § 4 must be sufficiently certain, not only in theory but also in practice, failing which it will lack the accessibility and effectiveness required for the purposes of that provision (see Muminov, cited above, § 113, and Ismoilov and Others v. Russia, no. 2947/06, § 145, 24 April 2008, with further references). 42. The Court notes at the outset that a judicial review of the kind required under Article 5 § 4 cannot be said to be incorporated in the initial detention order of 19 July 2011. The thrust of the applicant ’ s complaint under Article 5 § 4 was not directed against the initial decision on his placement in custody but rather against his inability to obtain a judicial review of his detention after a certain lapse of time. Given that the applicant spent more than two years in custody, new issues affecting the lawfulness of the detention might have arisen in the meantime. In particular, the applicant sought to argue before the courts that his detention had ceased to be lawful after it had transpired that it was impossible to expel him to Uzbekistan. By virtue of Article 5 § 4 the applicant was entitled to apply to a “court” having jurisdiction to decide “speedily” whether or not his deprivation of liberty had become “unlawful” in the light of new factors which emerged subsequently to the decision on his initial placement in custody (see Azimov, cited above, §§ 151-152, with further references). 43. The Court observes that no automatic periodic extension of the applicant ’ s detention or any judicial review thereof took place during the entire two-year period that he remained in custody. The applicant ’ s attempts to seek any form of review were likewise unfruitful: two District Courts and the St Petersburg City Court refused to deal with the substance of his complaint about unlawful detention, finding that there was no need to vary the custodial measure or to review its lawfulness in the light of the new circumstances. The Court lastly notes that in the Azimov case, which featured a similar complaint, the Government did not point to any domestic legal provision which could have allowed the applicant to bring proceedings for judicial review of his detention pending expulsion (see Azimov, cited above, § 153); in the instant case, the Government also acknowledged a violation of Article 5 § 4. 44. It follows that throughout the term of the applicant ’ s detention pending expulsion he did not have at his disposal any procedure for a judicial review of its lawfulness. 45. There has therefore been a violation of Article 5 § 4. 2. Compliance with Article 5 § 1 of the Convention 46. The Government acknowledged a violation of Article 5 § 1 (f) in respect of the time period after 5 February 2013, the date on which the letter from the Embassy of Uzbekistan made it clear that the applicant ’ s expulsion to Uzbekistan was impossible. As regards the preceding period, the Government submitted that the lengthy detention was accounted for by an “objective reason”, notably the absence of information from the Embassy of Uzbekistan. The domestic authorities had shown “special diligence” in the conduct of the expulsion proceedings. 47. The applicant submitted that the Russian authorities had not conducted the expulsion proceedings with due diligence. This lack of due diligence on their part was exemplified in several ways. Firstly, no effort had been made to contact the Uzbek authorities in the first four months and eleven days of his detention. Secondly, the Russian authorities had sent no fewer than four letters to the Embassy of Uzbekistan in Moscow, but a first reply was received more than one year and two months after the despatch of the first letter. Thirdly, there had been no justification for the applicant ’ s detention after 5 February 2013, when the Russian authorities had become aware that he was not an Uzbek national. Finally, the applicant pointed out that he had been kept in detention pending expulsion: thus, there had been no complex extradition proceedings and the only issue to be determined had been whether at least one State was willing and able to receive him. 48. The applicant was held in custody with a view to his expulsion from Russia, which is a form of “deportation” in terms of Article 5 § 1 (f) of the Convention (see Azimov, cited above, § 160). Accordingly, the deprivation of the applicant ’ s liberty fell within the ambit of Article 5 § 1 (f). 49. Article 5 § 1 (f) does not demand that detention be reasonably considered necessary, for example to prevent an individual from committing an offence or fleeing. Any deprivation of liberty under the second limb of Article 5 § 1 (f) will be justified, however, only for as long as deportation or extradition proceedings are in progress. If such proceedings are not prosecuted with due diligence, the detention will cease to be permissible under Article 5 § 1 (f) (see Chahal v. the United Kingdom, 15 November 1996, § 113, Reports of Judgments and Decisions 1996 ‑ V ). To avoid being branded as arbitrary, detention under Article 5 § 1 (f) must be carried out in good faith; it must be closely connected to the ground of detention relied on by the Government; the place and conditions of detention should be appropriate; and the length of the detention should not exceed that reasonably required for the purpose pursued (see A. and Others v. the United Kingdom [GC], no. 3455/05, § 164, ECHR 2009 ). 50. The Court notes that the applicant remained in detention pending the enforcement of the order for his expulsion for a total period of two years and ten days. It appears that the only steps taken by the Russian authorities during that time were to write to the Embassy of Uzbekistan in Moscow five times, asking it to issue a travel document for the applicant. It is true that the Russian authorities could not compel the Embassy to issue such a document. However, there is no indication that they pursued the matter vigorously or endeavoured to enter into negotiations with the Uzbek authorities with a view to expediting its delivery ( compare Amie and Others v. Bulgaria, no. 58149/08, § 77, 12 February 2013; Raza v. Bulgaria, no. 31465/08, § 73, 11 February 2010; Tabesh, cited above, § 56; and Louled Massoud, cited above, § 66). 51. It is a matter of particular concern to the Court that the Russian authorities sent their first letter to the Embassy of Uzbekistan more than four months after the applicant ’ s placement in custody. The letter concerned the applicant and twelve other individuals who were presumed to be nationals of Uzbekistan. While administrative convenience may call for a group treatment of similar requests under different circumstances, the fact that the applicant was in detention required special diligence from the authorities and the four-month delay was clearly in breach of that requirement (see Tabesh, cited above, § 56, in which the authorities remained passive for three months). 52. Upon receipt of the letter from the Uzbek authorities dated 5 February 2013, the Russian authorities became aware that the applicant ’ s expulsion to Uzbekistan was no longer a realistic prospect because he was not a national of that State. The Government have not provided evidence of any efforts having been made to secure the applicant ’ s admission to a third country. There is no indication that they asked him to specify such a country or that they took any steps to explore that option on their own initiative (compare Amie and Others, cited above, § 77). The Court reiterates that detention cannot be said to have been effected with a view to the applicant ’ s deportation if this was no longer feasible (see Mikolenko v. Estonia, no. 10664/05, §§ 64-65, 8 October 2009). This was also conceded by the respondent Government. 53. The Court further reiterates that the domestic authorities have an obligation to consider whether removal is a realistic prospect and whether detention with a view to removal is from the outset, or continues to be, justified (see Amie and Others, cited above, § 77, and Louled Massoud, cited above, § 6 8). In such circumstances the necessity of procedural safeguards becomes decisive. However, the Court has already established that the applicant did not have any effective remedy by which to contest the lawfulness and length of his detention, and the Government have not pointed to any other normative or practical safeguard. It follows that the Russian legal system did not provide for a procedure capable of preventing the risk of arbitrary detention pending expulsion ( see Azimov, cited above, §§ 153-54; Louled Massoud, cited above, § 71, and, mutatis mutandis, Soldatenko v. Ukraine, no. 2440/07, § 114, 23 October 2008 ). In the absence of such safeguards, the applicant spent the entire two-year period, that is, the maximum period the Russian law stipulates for the enforcement of an expulsion order, in detention. 54. The Court is concerned about the applicant ’ s particularly vulnerable situation. As a stateless person, he was unable to benefit from consular assistance and advice, which would normally be extended by diplomatic staff of an incarcerated individual ’ s country of nationality. Furthermore, he appears to have no financial resources or family connections in Russia and he must have experienced considerable difficulties in contacting and retaining a legal representative. The domestic authorities do not appear to have taken any initiative to accelerate the progress of the removal proceedings and to ensure the effective protection of his right to liberty, although the decision by the Constitutional Court of 17 February 1998 may be read as expressly requiring them to do so (see paragraph 25 above). As a consequence, the applicant was simply left to languish for months and years, locked up in his cell, without any authority taking an active interest in his fate and well-being. 55. Lastly, the Court reiterates that the maximum penalty in the form of deprivation of liberty for an administrative offence under the Code of Administrative Offences is thirty days (see Azimov, cited above, § 172 ) and that detention with a view to expulsion should not be punitive in nature and should also be accompanied by appropriate safeguards, as established by the Russian Constitutional Court (see paragraph 25 above). In this case the “preventive” measure, in terms of its gravity, was much more serious than the “punitive” one, which is abnormal (see Azimov, cited above, § 172). 56. The foregoing considerations are sufficient to enable the Court to conclude that the grounds for the applicant ’ s detention – action taken with a view to his expulsion – did not remain valid for the whole period of his detention due to the lack of a realistic prospect of his expulsion and the domestic authorities ’ failure to conduct the proceedings with due diligence. 57. There has accordingly been a violation of Article 5 § 1 (f) of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 58. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 59. The applicant asked the Court to determine the amount of compensation in respect of non-pecuniary damage. Having no identity documents or bank account, he asked the Court to order payment of any award into the bank account of his representative, Ms Tseytlina. 60. The Government considered that the finding of a violation would constitute sufficient just satisfaction. 61. The Court awards the applicant 30,000 euros (EUR) in respect of non-pecuniary damage, plus any tax that may be chargeable. B. Costs and expenses 62. The applicant also claimed EUR 1,070 for the work of two representatives in the domestic proceedings and before the Court. 63. The Government submitted that the applicant failed to submit supporting documents. 64. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the amount claimed, that is, EUR 1,070, covering costs under all heads plus any tax that may be chargeable to the applicant. C. Default interest 65. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. IV. APPLICATION OF ARTICLE 46 OF THE CONVENTION 66. Article 46 of the Convention provides: “1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties. 2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.” 67. The Court reiterates that by Article 46 of the Convention the Contracting Parties have undertaken to abide by the final judgments of the Court in any case to which they are parties, execution being supervised by the Committee of Ministers. It follows, inter alia, that a judgment in which the Court finds a breach of the Convention or the Protocols thereto imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in their domestic legal order to put an end to the violation found by the Court and to redress as far as possible the effects. 68. The present case has disclosed violations of some of the core rights protected by the Convention – prohibition of ill-treatment and the right to liberty – which were not prevented through domestic legal remedies. A situation similar to the one obtaining in the instant case arose in a case of three stateless persons of Roma origin who had spent almost one year in the same detention centre for aliens in St Petersburg pending their administrative removal from Russia, without judicial review of their detention. That case was terminated by way of a friendly settlement, with the Government undertaking to pay a sum of money to the applicants (see Lakatosh and Others v. Russia ( dec. ), no. 32002/10, 7 June 2011). In Azimov and follow-up cases the Court found a violation of Article 5 § 4 of the Convention on account of the fact that during the term of the applicants ’ detention pending expulsion they did not have at their disposal any procedure for judicial review of its lawfulness in the light of new factors which emerged subsequent to the decision on their initial placement in custody (see Azimov, cited above, §§ 153-54 ). 69. In principle, it is not for the Court to determine possible appropriate measures of redress for a respondent State to carry out in accordance with its obligations under Article 46 of the Convention. With a view, however, to helping the respondent State fulfil its obligations under Article 46, the Court may seek to indicate the type of individual and/or general measures that might be taken in order to put an end to the situation it has found to exist (see Stanev v. Bulgaria [GC], no. 36760/06, § 255, 17 January 2012; Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 148, ECHR 2009; and Broniowski v. Poland [GC], no. 31443/96, § 194, ECHR 2004-V). The Court ’ s concern is to facilitate the rapid and effective suppression of a malfunction in the national system of human-rights protection. In that connection, the Court considers that general measures at the national level are undoubtedly called for in the execution of the present judgment (see Driza v. Albania, no. 33771/02, § 125, ECHR 2007 ‑ V (extracts), and Louled Massoud, cited above, § 47 ). A. General measures to prevent similar violations 70. In view of its finding of a violation of Article 5 § 4 in the instant case, the Court considers that it is necessary to indicate the general measures required to prevent other similar violations in the future. It has found a violation of Article 5 § 4 on account of the fact that the applicant, who was held in custody pending his expulsion from Russia, was unable to institute proceedings by which the lawfulness of his detention could be examined by a court and his release ordered if the detention ceased to be justified (see paragraph 43 above). 71. Thus, the Court considers that the respondent State must above all, through appropriate legal and/or other measures, secure in its domestic legal order a mechanism which allows individuals to institute proceedings for the examination of the lawfulness of their detention pending removal in the light of the developments in the removal proceedings. The Court reiterates that although it is not always necessary that an Article 5 § 4 procedure be attended by the same guarantees as those required under Article 6 for criminal or civil litigation, it must have a judicial character and provide guarantees appropriate to the type of deprivation of liberty in question (see A. and Others v. the United Kingdom, cited above, § 203, and Idalov v. Russia [GC], no. 5826/03, § 161, 22 May 2012). 72. The Court has also found a violation of Article 5 § 1 of the Convention on account of the unreasonable duration of the applicant ’ s detention. Accordingly, it recommends that the respondent State envisage taking the necessary general measures to limit detention periods so that they remain connected to the ground of detention applicable in an immigration context (see paragraph 55 above, Suso Musa v. Malta, no. 42337/12, § 123, 23 July 2013, and the Constitutional Court ’ s decision no. 6-P cited in paragraph 25 above). B. Remedial measures in respect of the applicant 73. The Court further notes that, in addition to being stateless, the applicant appears to have no fixed residence and no identity documents. The Court is therefore concerned that following his release, the applicant ’ s situation has remained irregular from the standpoint of Russian immigration law. He thus risks exposure to a new round of prosecution under Article 18.8 of the Code of Administrative Offences, cited in paragraph 23 above. 74. The Court is therefore convinced that it is incumbent upon the Russian Government to avail itself of the necessary tools and procedures in order to prevent the applicant from being re-arrested and put in detention for the offences resulting from his status of a stateless person. Given the variety of means available to achieve this aim and the nature of the issues involved, the Committee of Ministers is better placed than the Court to assess the specific individual measures to be taken. It should thus be left to the Committee of Ministers to supervise, on the basis of the information provided by the respondent State and with due regard to the applicant ’ s evolving situation, the adoption of such measures that are feasible, timely, adequate and sufficient to ensure the maximum possible reparation for the violations found by the Court (see Savriddin Dzhurayev v. Russia, no. 71386/10, § 255, ECHR 2013 (extracts) ). | The Court held that there had been a violation of Article 5 § 1 (right to liberty and security) and a violation of Article 5 § 4 (right to have lawfulness of detention decided speedily by a court) of the Convention. It found in particular that the applicant had had no procedure available to him to challenge his detention, and that he had remained in detention even though there was no realistic prospect of securing his expulsion. The authorities had therefore lacked the required diligence in view of the situation. Under Article 46 (binding force and execution of judgments) of the Convention, the Court further concluded, in particular, that Russia was to take appropriate measures to provide for procedures in order to prevent the applicant from being re-arrested and detained for the offences resulting from his status as a stateless person. In this case the Court also found that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention on account of the applicant’s detention conditions. |
87 | Religious upbringing of children | RELEVANT LEGAL FRAMEWORK Domestic law and practice The Italian Constitution 20. The relevant provisions of the Italian Constitution read as follows: Article 3 “All citizens have equal social dignity and are equal before the law, without distinction of sex, race, language, religion, political opinion, personal and social conditions. ...” Article 19 “Anyone is entitled to freely profess their religious belief in any form, individually or with others, and to promote them and celebrate rites in public or in private, provided they are not offensive to public morality.” Article 30 “It is the duty and right of parents to support, raise and educate their children, even if born out of wedlock. ...” The Italian Civil Code 21. The Italian Civil Code (CC), in its relevant parts, reads as follows: Article 316 “Both parents have parental responsibility that is exercised by mutual agreement, taking into account the abilities, natural inclinations and aspirations of the child. ... ... In the event of conflict on matters of particular importance each of the parents can turn to the judge without any formality, indicating the measures he considers most appropriate. The judge, having heard the parents and arranged to hear the minor ... suggests the decisions that he considers most useful in the interests of the child and the family unit ...” Article 337- bis “In the event of separation ... and in proceedings concerning children born out of wedlock, the provisions of this chapter apply.” Article 337- ter “The minor child has the right to maintain a balanced and continuous relationship with both parents, to receive care, education, instruction and moral assistance from both ... To carry out the purpose indicated in the first paragraph, in the proceedings referred to in Article 337 bis, the judge adopts the provisions relating to the children with exclusive reference to their moral and material interest. ... He adopts any other provision relating to the offspring ... Parental responsibility is exercised by both parents. The decisions of greatest interest to the children regarding education, upbringing, health and the choice of the child’s habitual place of residence are made by mutual agreement, taking into account the abilities, natural inclination and aspirations of the children. In case of disagreement the decision is left to the judge. Within the limits of decisions on matters of ordinary administration, the judge may decide that the parents exercise parental responsibility separately ...” Decisions made in accordance with Articles 330, 333 and 337 of the Civil Code are rendered in non-contentious proceedings ( volontaria giurisdizione ). They are not final and can therefore be revoked at any time. Either party concerned may lodge an application ( reclamo ) with the Court of Appeal for a review of the decision. RELEVANT INTERNATIONAL INSTRUMENTS United Nations 22. The relevant provision of the United Nations Convention on the Rights of the Child, signed in New York on 20 November 1989, reads as follows: Article 14 “1. States Parties shall respect the right of the child to freedom of thought, conscience and religion. 2. States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child. 3. Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others.” 23. The relevant parts of the interim report of the Special Rapporteur on freedom of religion or belief on the elimination of all forms of religious intolerance, presented at the 70 th Session of the General Assembly (UN Doc. A/70/286, 5 August 2015), read as follows: “... 22. Given the child’s dependency on an enabling family environment, albeit with recognition of the variety of family forms, parents have the primary responsibility for supporting the child in the exercise of his or her human rights. According to article 5 of the Convention on the Rights of the Child, they should provide “appropriate guidance and direction” to the child in that regard. That specific responsibility entrusted to the parents also constitutes a parental right that the State must respect and protect. Article 14, paragraph 2, of the Convention further specifies that general understanding by enshrining due respect for the rights and duties of the parents “to provide direction to the child in the exercise of his or her right” to freedom of religion or belief. ... 31. ... [T]here can be no doubt that the erosion of parental rights by undue State interference is a serious problem and a source of grave violations of freedom of religion or belief. That problem requires systematic attention. ... ... 36. Freedom of religion ... does not presuppose a right of the child to grow up in a religiously “neutral” family environment, let alone a right possibly enforced by the State against parents. The principle of “neutrality” can meaningfully be invoked only against States in order to remind them of their obligation to exercise fairness, impartiality and inclusivity and in this specific sense “neutrality”, when dealing with diversity of religion or belief. By contrast, parents cannot be obliged by the State to remain religiously “neutral” when raising their children. ... 64. In cases in which the two parents follow different religions or beliefs, such a difference cannot in itself serve as an argument for treating parents differently ... Discrimination against parents on the grounds of their religion or belief may simultaneously amount to a serious violation of the rights of t he child in their care. ... ... 76. The rights of children and parental rights in the area of freedom of religion or belief ... should generally be interpreted as being positively interrelated. ... While State interventions may sometimes be necessary, ... unjustified State interference with parental rights in the area of freedom of religion or belief will in many cases simultaneously amount to violations of the rights of the child. ...” COMPLAINTS 24. The applicant complains of a violation of his right to respect for his family life and his freedom of religion, alleging a disproportionate and unnecessary difference in treatment between him and his previous partner, based on his religious beliefs. Finally, he complains that the overall length of the proceedings adversely affected his relationship with his daughter. he claimed a violation of Articles 8 and 9 of the Convention, alone and in conjunction with Article 14 and Article 5 of Protocol No. 7 to the Convention. THE LAW ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION in ConjuNction with article 8 of the coNvention read in the light of article 9 25. The applicant complained that the domestic courts’ decisions ordering him to refrain from actively involving his daughter in his religion had disproportionately interfered with his right to family life and his freedom of religion. He further claimed that such treatment had been based on his adherence to the Jehovah’s Witnesses religion and, as such, it had amounted to a differential treatment in respect of the enjoyment of his Convention rights. In this regard, he claimed a violation of Articles 8 and 9 of the Convention, alone and in conjunction with Article 14. He further submitted that the domestic courts’ decisions had violated the equality of rights between him and S.G. in their relations with their child, as protected by Article 5 of Protocol No. 7 to the Convention. 26. Article 8 reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 27. Article 9 reads as follows: “1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.” 28. Article 14 reads as follows: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” 29. Article 5 of Protocol No. 7 to the Convention reads as follows: “Spouses shall enjoy equality of rights and responsibilities of a private law character between them, and in their relations with their children, as to marriage, during marriage and in the event of its dissolution. This Article shall not prevent States from taking such measures as are necessary in the interests of the children.” 30. The Court, having regard to the particular circumstances of the case and being master of the characterisation to be given in law to the facts of the case ( Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 124, 20 March 2018), considers that the applicant’s complaints fall to be examined under Article 14 in conjunction with Article 8 of the Convention which must however, be interpreted and applied in the light of Article 9 of the Convention (see Abdi Ibrahim v. Norway [GC], no. 15379/16, §§ 141-142, 10 December 2021 and, mutatis mutandis, Vojnity v. Hungary, no. 29617/07, 12 February 2013). The Court considers that for a parent to bring his or her child up in line with one’s own religious or philosophical convictions may be regarded as a way to “manifest his religion or belief, in teaching, practice and observance”. It is clear that when the child lives with his or her parent, the latter may exercise Article 9 rights in everyday life through the manner of enjoyment of his or her Article 8 rights ( Abdi Ibrahim, cited above, § 140). Admissibility 31. The Court notes that that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. MeritsThe parties’ arguments The parties’ arguments The parties’ arguments (a) The Government 32. The Government stated at the outset that the Court was not a court of fourth instance, whereas the applicant had asked the Court to re-examine the facts of the case and to find a violation of domestic law, which task did not lie within the Court’s competence. 33. The Government further contended that the applicant’s rights vis-à-vis the enjoyment of his family life had not been restricted in any way. He had in fact never been prevented from sharing his religious thoughts with E., as confirmed by the Florence Court of Appeal decision (see paragraph 17 above). 34. In any case, the Government argued that the balancing exercise conducted by the domestic courts between the applicant’s rights under Articles 8 and 9 of the Convention and the child’s best interests had been perfectly consistent with the Court’s case-law. They submitted that adherence to the habits, activities and practices of one religious denomination was incompatible with adherence to the activities and practices of another denomination. This was why, in the event of disagreement between the parents as to the religious education to be given to their child, the domestic courts were empowered and required to act to protect the best interests of the child and to ensure the equal dignity of both parents. 35. In the present case, the domestic courts had completely refrained from grounding their decisions on an abstract reasoning linked to the applicant’s religion. On the contrary, they had mainly motivated the domestic courts’ decision with reference to the applicant’s behaviour in concealing E.’s involvement in the Jehovah’s Witnesses’ activities from S.G. (b) The applicant 36. The applicant argued that the domestic courts’ decisions ordering him to refrain from actively involving his daughter E. in his religion, had disproportionately interfered with his right to private and family life. In this regard he claimed that there had been no evidence at all of a risk of actual harm to E. in his religious practices. 37. The applicant further claimed that the interference had been unforeseeable by reason of its vagueness. He alleged that he was unable to distinguish between the actions which were allowed and those which were prohibited. 38. Finally, he contended that all the decisions taken by the domestic courts had been tainted by a discriminatory bias against his religion. This had created in E.’s mind the discriminatory impression that, as compared with the Roman Catholic Church, his religion was dangerous and should be avoided. 39. In this regard, the applicant maintained that the domestic courts had only investigated his beliefs and practices, and not those of S.G., with the consequence that only he, and not S.G., had been ordered to refrain from actively involving E. in religious activities. The applicant challenged the domestic courts’ decisions endorsing P.C.’s conclusions as being discriminatory inasmuch as they had affirmed that E. should be encouraged to take part in Catholic activities in order to ensure her “healthy social growth” and to prevent her being “different from her peers”. He further challenged the domestic courts’ decisions affirming that it would be “prejudicial to E.’s interests to be involved in a religion that differs from Catholicism”. The Court’s assessment 40. The Court reiterates that Article 14 of the Convention complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter. 41. The Court notes at the outset that the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of “family life” within the meaning of Article 8 of the Convention, even if the relationship between the parents has broken down (see Ilya Lyapin v. Russia, no. 70879/11, § 44, 30 June 2020). In the present case, the applicant’s relationship with his daughter was limited by the decisions of the domestic authorities. Therefore, the latter constituted an interference with the applicant’s right to respect for family life under Article 8 of the Convention. 42. The Court pointed out that the practical arrangements for exercising parental authority over children defined by the domestic courts could not, as such, infringe an applicant’s freedom to manifest his or her religion ( Deschomets v. France (dec.), no. 31956/02, 16 May 2006). It also emphasised the priority aim of taking account of the best interests of children, which involved reconciling the educational choices of each parent and attempting to strike a satisfactory balance between the parents’ individual conceptions, precluding any value judgments and, where necessary, laying down minimum rules on personal religious practices ( F.L. v. France (dec.), no. 61162/00, 3 November 2005). 43. For the purposes of Article 14, a difference of treatment is discriminatory if it “has no objective and reasonable justification”, that is, if it does not pursue a “legitimate aim” or if there is not a “reasonable relationship of proportionality” between the means employed and the aim sought to be realised. The Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment. The scope of this margin will vary according to the circumstances, the subject matter and its background (see, among many authorities, Molla Sali v. Greece [GC], no. 20452/14, §§ 135-136, 19 December 2018, Vojnity v. Hungary, cited above, and Palau-Martinez v. France, no. 64927/01, § 39, ECHR 2003 ‑ XII). 44. The Court must therefore first examine whether the applicant can claim to have received different treatment. It observes that in the present case the domestic courts, in their decisions ordering the applicant to refrain from involving his daughter in his religious practices, had regard above all to the child’s interests. The child’s interests lay primarily in the need to maintain and promote her development in an open and peaceful environment, reconciling as far as possible the rights and convictions of each of her parents. 45. At the same time, the Court notes that both P.C.’s report and the domestic courts’ decisions referred to the fact that involving E. in the applicant’s religious practices would destabilise her in that she would be induced to abandon her Roman Catholic religious habits. Moreover, P.C. and the domestic authorities also mentioned the applicant’s behaviour and the means he was using to involve E. in his religious practices, in particular his concealment from S.G. of E.’s involvement in the Jehovah’s Witnesses’ activities (see paragraph 14 above). 46. Even assuming that the applicant and S.G. could be considered to be in comparable situations, the Court observes that the contested measure had little influence on the applicant’s religious practices and was in any event aimed solely at resolving the conflict arising from the opposition between the two parents’ educational concepts, with a view to safeguarding the child’s best interests. 47. The Court further notes that no measure had been adopted to prevent the applicant from using the educational principles he has opted for in relation to E. Nor does it appear from the decisions contested by the applicant that he was prevented from taking part in the activities of the Jehovah’s Witnesses in a personal capacity. Rather, in the Court’s view, the national authorities attempted to reconcile the rights of each party, which was demonstrated by the attenuated nature of the contested measure. 48. The fact that the domestic courts ordered the applicant to refrain from actively involving his daughter in his religious activities did not severely circumscribe his relationship with her. In particular, he suffered no restrictions on his custody and visiting rights. The reasons given by the domestic courts show that they focused solely on the child’s interests, having decided to protect her from the purported stress exerted by the applicant’s intensive efforts to involve her in his religious activities. In that context, the Court notes that E. attended Jehovah’s Witnesses religious services from 2009 to 2015 (from the age of 3 until the age of 8, when the decision of the Livorno District Court ordered the applicant to refrain from actively involving her), and at the same time participated in religious discussions and prayers at the applicant’s home. Following P.C.’s report, the domestic courts concluded that the applicant’s attempts to involve E. in his religious activities more intensely would been harmful for her. 49. In this respect the Court observes that the present case does indeed differ from Palau-Martinez v. France (cited above), in which a violation of Article 8 in conjunction with Article 14 was found on account of the fact that residence rights had been determined on the basis of the applicants’ religious beliefs (see also, a contrario, Cosac v. Romania (dec.), no. 28129/05, 23 September 2014; Deschomets v. France (dec.), cited above; and F.L. v. France (dec.), cited above) and from Vojnity v. Hungary, cited above, where the Court found that there had been no reasonable relationship of proportionality between a total ban on the applicant’s access rights on the basis of his religious convictions and the aim pursued, namely the protection of the best interests of the child. 50. In the present case, the sole purpose of the contested measure was to preserve the child’s freedom of choice by taking into account her father’s educational views. Also, since circumstances may change over time and given that domestic decisions are not final and can therefore be revoked at any time, the applicant may reapply to the Livorno District Court for a review of the decision issued on 20 January 2015. 51. In view of the foregoing, the fact that the domestic courts ordered the applicant to refrain from actively involving the daughter in his religious practice cannot be seen as constituting a difference in treatment between him and the mother of the child based on religion. 52. The Court finds that there has accordingly been no violation of Article 14 of the Convention taken in conjunction with Article 8. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 53. The applicant complained under Article 6 of the Convention that he had been denied a fair trial in that the domestic courts had failed to decide on his appeal as a matter of urgency. He recalled that the proceedings had lasted a total of 4 years, 8 months and 6 days, and that such a period of time had had irremediable consequences on his relationship with his daughter. 54. The Court, being master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], cited above, § 124), considers that the applicant’s complaints fall to be examined under the procedural limb of Article 8, which reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 55. The Government argued that the proceedings in issue had been complex and required specific technical investigation. At all events, they concluded that the overall length of time had not violated the applicant’s procedural rights under Article 8 of the Convention and had been perfectly in line with the Court’s case-law. 56. The Government further pointed out that the applicant had not suffered any restrictions in his custody rights vis-à-vis E., as the decision imposed by the domestic courts had solely concerned the child’s active involvement in the activities and religious services of the Jehovah’s Witnesses Community. 57. The Court recalls that although Article 8 contains no explicit procedural requirements, the decision-making process involved in measures of interference must be fair and such as to ensure due respect for the interests safeguarded by Article 8 (see W. v. the United Kingdom judgment of 8 July 1987, Series A no. 121, p. 29, § 64, and Cincimino v. Italy, no. 68884/13, § 64, 28 April 2016). In this connection, the Court may have regard to the length of the local authority’s decision-making process and any related judicial proceedings (see W. v. the United Kingdom, cited above, § 65). Effective respect for family life requires that future relations between a parent and child be determined solely in the light of all the relevant considerations, and not by the mere passage of time (see Ignaccolo-Zenide v. Romania, no. 31679/96, § 102, ECHR 2000 I; D’Alconzo v. Italy, no. 64297/12, § 64, 23 February 2017; and Barnea and Caldararu v. Italy, no. 37931/15, § 86, 22 June 2017). Otherwise, there will be a failure to respect their family life, and the interference resulting from the decision cannot be regarded as “necessary” within the meaning of Article 8. 58. In this connection, the Court has further clarified that in cases concerning a parent’s relationship with his or her child, there is a duty to act swiftly and exercise exceptional diligence, in view of the risk that the passage of time may result in a de facto determination of the matter (see, mutatis mutandis, Kautzor v. Germany, no. 23338/09, § 81, 22 March 2012 and, in the context of contact rights, Endrizzi v. Italy, no. 71660/14, § 48, 23 March 2017, and Improta v. Italy, no. 66396/14, § 45, 4 May 2017). 59. Turning to the circumstances of the present case, the Court notes that the proceedings concerning E.’s custody began in September 2013. E. was heard without delay in February 2014. On 11 March 2014 the District Court invited the social services to assess the influence which the religious activities of both parties were having on E. from the psychological and behavioural points of view. Due to the latter’s inertia, the domestic courts promptly appointed an expert on 22 July 2014 (see paragraph 13 above). The latter submitted her technical expert report on 30 December 2014, and the Livorno District Court took its decision on 20 January 2015. Having regard to the sensitivity of the issues at stake and to the proactive approach of the Livorno District Court in dealing with the proceedings, the Court does not consider the length of the first instance proceedings to have been excessive. 60. Concerning the alleged length of the appeal proceedings, the Court notes that the Florence Court of Appeal took seven months to deal with the case, whereas the Court of Cassation took 24 months. 61. In this regard the Court notes, as the Government pointed out, that during this time the applicant sustained no restrictions on his custody and visiting rights. Moreover, he has not at all demonstrated how the length of the proceedings before the Florence Court of Appeal and the Court of Cassation could have had irremediable consequences on his relationship with his daughter. 62. In those circumstances, the Court finds that the applicant’s complaint is manifestly ill-founded and should therefore be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention. | The Court held that there had been no violation of Article 14 (prohibition of discrimination) of the Convention in conjunction with Article 8 (right to respect for private and family life), read in the light of Article 9 (freedom of religion) of the Convention. It found that there had been no difference in treatment between the applicant and the mother based on religion in the decisions leading to that court order. The Court noted, in particular, that the decisions had solely aimed at resolving the conflict, focussing above all on the child’s interest in growing up in an open and peaceful environment, while reconciling as far as possible the rights and convictions of both parents. |
65 | Action for disavowal of paternity | II. RELEVANT DOMESTIC LAW A. Background to the 1960 Act on the Legal Status of Children 16. Prior to the enactment of the 1960 Act, which applied in Mr. Rasmussen's case, the status of children was regulated in the Illegitimacy Act of 1937 and the Legitimacy Act of the same year. Section 3 of the latter provided that proceedings to contest paternity of a legitimate child could be instituted by the mother, the husband, the child or a person appointed guardian of the child. No time-limit was laid down for the institution of such proceedings. 17. According to Danish case-law and legal writing, however, a husband could be estopped from contesting paternity of a child born in wedlock if, knowing that his wife had had sexual intercourse with another man during the relevant period, he had expressly or tacitly acknowledged after the child's birth that he was the father. The "doctrine of acknowledgement" (anerkendelseslaeren) was first established in 1956 by a judgment of the Supreme Court, reported in Ugeskrift for Retsvaesen (U.f.R.) 1956, p. 107. Although there was no case-law on the point, legal writers expressed the view that this doctrine applied also to mothers (see, for instance, Ernst Andersen, Aegteskabsret I, 1954, p. 95). 18. In December 1949, the Ministry of Justice set up a committee, called the "Paternity Committee", to consider, inter alia, certain aspects of the status of children born in wedlock. In June 1955, the Committee submitted its report (no. 126/1955) on the amendment of the rules regarding determination of paternity. As to the husband's right to institute proceedings to challenge paternity of a child born in wedlock, the Committee recommended the institution of a double time-limit of six months from the time when the husband became aware of the facts affording grounds for contesting his paternity and not later than three years from the birth of the child; but that the Ministry of Justice should be empowered to grant exemption from these time-limits in special circumstances. The Committee took the view that the welfare of the child (and of the marriage) required that his status should be established as soon as possible and that the husband's interests should yield to these considerations (page 60 of the report). One of the reasons given by the Committee for this recommendation was that a paternity suit instituted by the husband several years after the child's birth would place the child in a worse position than if proceedings had been instituted earlier: the court would possibly have to give judgment in the husband's favour on the basis of the blood-group determination, while it would be difficult to obtain a paternity and a maintenance order against another man. On the other hand, the Committee found that the child's right to institute proceedings should not be subject to any time-limit, since the views which might lead to restricting the husband's right to institute proceedings were not of relevance in the case of an action brought by the child. For the same reasons, there should likewise be no time-limit with regard to actions brought by the child's guardian or the mother (page 59 of the report). The Committee also discussed the question whether the doctrine of acknowledgement should be embodied in legislation. However, it considered that this was a matter which was better left to the courts to decide on a case-by-case basis. B. The 1960 Act 19. The Government subsequently introduced a Bill which incorporated in part the recommendations of the Paternity Committee but increased the time-limits to twelve months and five years respectively and conferred competence to grant exemption on the Courts of Appeal. This legislation entered into force, as the 1960 Act, on 1 January 1961. It provided in section 5(1) that proceedings to challenge paternity of a child could be brought by the husband, the mother, the child or a guardian of the child. Sub-sections 2 and 3 of section 5 read as follows: "(2) Paternity proceedings must be instituted by the husband within twelve months after he becomes cognizant of the circumstances which may give grounds for his renunciation of paternity, and not later than five years after the birth of the child. (3) However, a Court of Appeal may, on the conditions set out in section 456r, sub-section 4, of the Administration of Justice Act, grant leave to institute proceedings after the expiry of the time-limits set out in sub-section 2 above." Section 456r, sub-section 4, of the Administration of Justice Act concerns re-opening of a paternity case after the expiry of the applicable time-limit or time-limits. It provides that leave may be granted by a Court of Appeal if quite exceptional reasons are given as to why a review was not sought earlier, if the particular circumstances of the case especially warrant it and if it can be assumed that the re-opening will not cause the child any great inconvenience. The 1960 Act did not impose any restriction on the mother's right to institute paternity proceedings, nor did it refer to the doctrine of acknowledgement (see paragraph 17 above). 20. In case-law, however, the "doctrine of acknowledgement" continued to be applied and there were Court of Appeal and Supreme Court decisions confirming the earlier view that the doctrine also applied to mothers. 21. The circumstances which, under the doctrine of acknowledgement, estop the husband from contesting paternity will, as a general rule, also militate against granting him leave to institute proceedings out of time. However, a decision to grant leave is without prejudice to the outcome of the subsequent procedure (see the Eastern Court of Appeal's judgment of 1977, U.f.R. 1977, p. 907). C. Amendments to the 1960 Act 22. In 1969, the Ministry of Justice set up a committee, called the "Matrimonial Committee", to consider whether the evolution of social conditions, and notably the changes in the social status of women and the resultant changes in the conception of the institution of marriage since the introduction of the 1960 Act, called for amendment of, inter alia, the provisions governing the legal status, during marriage and after separation or divorce, of children born in wedlock. In fact, the proportion of women working outside their homes has increased to about 60 per cent. As a result, men are, to a much higher degree than before, looking after the children and are more frequently granted their custody in the event of separation or divorce. Mothers are therefore now more likely to challenge paternity in order to prevent custody being given to the husband. In a report on cohabitation without marriage (samliv uden aegteskab I - no 915/1980, p. 72), published in January 1981, the Matrimonial Committee stated: "There is consensus in the Committee that also the mother's right to institute paternity proceedings and request re-opening should be subject to a relatively short time-limit, for example corresponding to the time-limits which today apply to the father. Furthermore, the Committee is to some degree in favour of an absolute time-limit, applicable to all, for instituting and re-opening paternity proceedings." 23. On the basis of the recommendations of the Matrimonial Committee, the Government tabled a Bill before Parliament in March 1982, proposing certain amendments to the 1960 Act. The explanatory memorandum to this Bill referred to the Rasmussen case, then pending before the European Commission. On page 4, it mentioned that the Agent of the Government had declared in evidence before the Commission that new legislation on the matter would be introduced, establishing uniform time-limits within which both men and women could contest the husband's paternity; the memorandum added that the Ministry of Justice considered such legislation "desirable in the interest of the child's needs" (af hensyn til barnets tarv). 24. On 26 May 1982, the Danish legislature passed an Act amending the 1960 Act, which entered into force on 1 July 1982. Following this amendment, sub-sections 2 and 3 of section 5 of the 1960 Act now provide: "(2) Paternity proceedings must be instituted not later than three years after the birth of the child. This provision shall not apply, however, where proceedings are instituted by the child after having attained the age of 18. (3) A Court of Appeal may grant leave to institute proceedings after the expiry of the time-limit set out in the first sentence of sub-section 2 of this section where quite exceptional grounds are given as to why proceedings were not instituted at an earlier stage, in circumstances where institution of proceedings is especially warranted, and where it can be presumed that the proceedings will not cause the child any great inconvenience." The "doctrine of acknowledgement" is still applied by the Danish courts to estop spouses from contesting paternity of a child (see the Supreme Court's judgment of 17 January 1984 ). PROCEEDINGS BEFORE THE COMMISSION 25. In his application of 21 May 1979 to the Commission (no. 8777/79), Mr. Rasmussen alleged that he had been subjected to discrimination based on sex in that, under the relevant Danish law applicable at the time, his former wife had an unlimited right of access to court to challenge his paternity, whilst he did not. 26. The Commission declared the application admissible on 8 December 1981. In its report adopted on 5 July 1983 (Article 31 of the Convention) (art. 31), the Commission expressed the opinion that there had been a breach of Article 14 taken in conjunction with Articles 6 and 8 (art. 14+6, art. 14+8) (eight votes against five). The full text of the Commission's opinion and of the separate opinion contained in the report is reproduced as an annex to the present judgment. AS TO THE LAW 27. Mr. Rasmussen complained of the fact that, under the 1960 Act (see paragraph 19 above), his right to contest his paternity of a child born during the marriage was subject to time-limits, whereas his former wife was entitled to institute paternity proceedings at any time. He alleged that he had been the victim of discrimination on the ground of sex, contrary to Article 14 of the Convention, taken in conjunction with Article 6 (art. 14+6) (right to a fair trial, including the right of access to court) and with Article 8 (art. 14+8) (right to respect for private and family life). 28. Article 14 (art. 14) of the Convention reads as follows: "The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status." I. DO THE FACTS OF THE CASE FALL WITHIN THE AMBIT OF ONE OR MORE OF THE OTHER SUBSTANTIVE PROVISIONS OF THE CONVENTION? 29. Article 14 (art. 14) complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to "the enjoyment of the rights and freedoms" safeguarded by those provisions. Although the application of Article 14 (art. 14) does not necessarily presuppose a breach of those provisions - and to this extent it has an autonomous meaning -, there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter (see, inter alia, the Van der Mussele judgment of 23 November 1983, Series A no. 70, p. 22, para. 43). 30. The applicant submitted that Article 6 (art. 6) was applicable to paternity proceedings and, further, that a husband's wish to have his family status determined fell within the scope of Article 8 (art. 8). These contentions were accepted by the Commission. 31. For the Government, it was questionable whether the object of a paternity suit was a determination of "civil rights and obligations", within the meaning of Article 6 para. 1 (art. 6-1), mainly because of the strong public interest involved in proceedings of this kind. They also contested the applicability of Article 8 (art. 8), maintaining that its object was the protection of the family and not the dissolution of existing family ties. 32. Article 6 para. 1 (art. 6-1) secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal (see the Golder judgment of 21 February 1975, Series A no. 18, p. 18, para. 36). It is true that the public interest may be affected by proceedings of the kind which Mr. Rasmussen wished to institute, but, in the Court's view, this factor cannot exclude the applicability of Article 6 (art. 6) to litigation which, by its very nature, is "civil" in character. And an action contesting paternity is a matter of family law; on that account alone, it is "civil" in character. 33. Article 8 (art. 8), for its part, protects not only "family" but also "private" life. Even though the paternity proceedings which the applicant wished to institute were aimed at the dissolution in law of existing family ties, the determination of his legal relations with Pernille undoubtedly concerned his private life. The facts of the case accordingly also fall within the ambit of Article 8 (art. 8). II. WAS THERE A DIFFERENCE OF TREATMENT? 34. Under the 1960 Act, the husband, unlike the child, its guardian or the mother, had to institute paternity proceedings within prescribed time-limits (see paragraph 19 above). The Government pointed out that this difference which appeared on the face of the Act was reduced in scope by two factors: firstly, it was open to the husband to seek leave from the Court of Appeal to institute proceedings out of time (see paragraph 19 above); secondly, not only the husband but also the mother might be debarred from contesting paternity by virtue of the "doctrine of acknowledgement" (see paragraphs 17 and 20 above). However, the Government did not suggest that these factors were sufficient to eliminate the difference laid down by statute. Indeed, the mother would not, like her husband, be estopped solely for being out of time; her action might simply fail as a result of her previous attitude. For the purposes of Article 14 (art. 14), the Court accordingly finds that there was a difference of treatment as between Mr. Rasmussen and his former wife as regards the possibility of instituting proceedings to contest the former's paternity. There is no call to determine on what ground this difference was based, the list of grounds appearing in Article 14 (art. 14) not being exhaustive (see the Engel and Others judgment of 8 June 1976, Series A no. 22, p. 30, para. 72). III. WERE THE APPLICANT AND HIS FORMER WIFE PLACED IN ANALOGOUS SITUATIONS? 35. Article 14 (art. 14) safeguards individuals who are "placed in analogous situations" against discriminatory differences of treatment (see the above-mentioned Van der Mussele judgment, Series A no. 70, p. 22, para. 46). 36. The Government supported the conclusion of the minority of the Commission that husband and wife were not placed in analogous situations as far as a paternity suit was concerned, there being a number of distinguishing characteristics between their respective positions and interests. The majority of the Commission, on the other hand, found that those characteristics were not sufficiently fundamental to warrant that conclusion. 37. The Court does not consider that it has to resolve this issue, especially as the positions and interests referred to are also of relevance in determining whether the difference of treatment was justified. It will proceed on the assumption that the difference was made between persons placed in analogous situations. IV. DID THE DIFFERENCE OF TREATMENT HAVE AN OBJECTIVE AND REASONABLE JUSTIFICATION? 38. For the purposes of Article 14 (art. 14), a difference of treatment is discriminatory if it "has no objective and reasonable justification", that is, if it does not pursue a "legitimate aim" or if there is not a "reasonable relationship of proportionality between the means employed and the aim sought to be realised" (see, inter alia, the Marckx judgment of 13 June 1979, Series A no. 31, p. 16, para. 33). 39. The Government pleaded that the limited difference of treatment that existed had an objective and reasonable justification. They relied, inter alia, on the following points: (i) the respective interests of the husband and of the mother in paternity proceedings were different: unlike the husband's interests, the mother's generally coincided with those of the child; and it was natural that, in weighing the interests of the different family members, the Danish legislature should in 1960 have taken the view that the interests of the weaker party, namely the child, should prevail (see paragraph 18 above); (ii) the legislature had also regarded it as necessary to lay down time-limits for the institution of paternity proceedings by a husband because of the risk that he might use them as a threat against the mother, in order to escape maintenance obligations; (iii) in deciding whether the national authorities have acted within the "margin of appreciation" which they enjoy in this area, regard should be had to the economic and social circumstances prevailing at the relevant time in the country concerned and to the background to the legislation in question; (iv) Denmark had undoubtedly amended the 1960 Act when this proved to be warranted by subsequent developments (see paragraphs 22-24 above), but it could not be said that the former Danish legislation on this matter was at the relevant time less progressive than that of the other Contracting Parties to the Convention. The Commission found that the only legitimate purpose for the difference of treatment complained of by the applicant was the desire to avoid the child's being placed in a worse position by the institution of paternity proceedings several years after its birth. However, since this aim could have been achieved through the "doctrine of acknowledgement" (see paragraphs 17 and 20 above), there was no reasonable relationship of proportionality between the means employed - the laying-down of time-limits solely for the husband - and the aim sought to be realised. 40. The Court has pointed out in several judgments that the Contracting States enjoy a certain "margin of appreciation" in assessing whether and to what extent differences in otherwise similar situations justify a different treatment in law (see the judgment of 23 July 1968 in the "Belgian Linguistic" case, Series A no. 6, p. 35, para. 10; the National Union of Belgian Police judgment of 27 October 1975, Series A no. 19, p. 20, para. 47, and pp. 21-22, para. 49; the Swedish Engine Drivers'Union judgment of 6 February 1976, Series A no. 20, p. 17, para. 47; the above-mentioned Engel and Others judgment, Series A no. 22, p. 31, para. 72; and the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 87, para. 229). The scope of the margin of appreciation will vary according to the circumstances, the subject-matter and its background; in this respect, one of the relevant factors may be the existence or non-existence of common ground between the laws of the Contracting States (see, mutatis mutandis, the Sunday Times judgment of 26 April 1979, Series A no. 30, p. 36, para. 59). 41. Examination of the Contracting States'legislation regarding paternity proceedings shows that there is no such common ground and that in most of them the position of the mother and that of the husband are regulated in different ways. The Danish legislation complained of was based on recommendations made, after a careful study of the problem, by the Paternity Committee set up by the Ministry of Justice in 1949 (see paragraph 18 above). The Court has had close regard to the circumstances and the general background and has borne in mind the margin of appreciation which must be allowed to the authorities in the matter. In its view, they were entitled to think that the introduction of time-limits for the institution of paternity proceedings was justified by the desire to ensure legal certainty and to protect the interests of the child. In this respect, the legislation complained of did not differ substantially from that of most other Contracting States or from that currently in force in Denmark. The difference of treatment established on this point between husbands and wives was based on the notion that such time-limits were less necessary for wives than for husbands since the mother's interests usually coincided with those of the child, she being awarded custody in most cases of divorce or separation. The rules in force were modified by the Danish Parliament in 1982 because it considered that the thinking underlying the 1960 Act was no longer consistent with the developments in society (see paragraphs 22-24 above); it cannot be inferred from this that the manner in which it had evaluated the situation twenty-two years earlier was not tenable. It is true that an equivalent result might have been obtained through the "doctrine of acknowledgement" (see paragraphs 17 and 20 above), but, for the reasons already indicated, the competent authorities were entitled to think that as regards the husband the aim sought to be realised would be most satisfactorily achieved by the enactment of a statutory rule, whereas as regards the mother it was sufficient to leave the matter to be decided by the courts on a case-by-case basis. Accordingly, having regard to their margin of appreciation, the authorities also did not transgress the principle of proportionality. 42. The Court thus concludes that the difference of treatment complained of was not discriminatory, within the meaning of Article 14 (art. 14). | The Court held that there had been no violation of Article 14 (prohibition of discrimination) combined with Articles 6 (right to a fair trial) and 8 (right to respect for private and family life) of the Convention, finding that the difference of treatment established on this point between husbands and wives was based on the notion that time-limits for challenging filiation were less necessary for wives than for husbands since the mother’s interests usually coincided with those of the child, she being awarded custody in most cases of divorce or separation. The rules in force had been modified by the Danish Parliament in 1982 because it considered that the thinking underlying the 1960 Act was no longer consistent with the developments in society; it could not be inferred from this that the manner in which it had evaluated the situation twenty-two years earlier was not tenable. |
1,083 | Dismissal | II. RELEVANT DOMESTIC LAW AND PRACTICE 19. There is no special legislation governing the issue of State immunity in Lithuania. The question is usually resolved by the courts on a case-by-case basis, with reference to the provisions of various bilateral and multilateral treaties. 20. Article 479 § 1 of the 1964 Code of Civil Procedure (applicable at the material time and in force until 1 January 2003) established the rule of absolute State immunity: “Adjudication of actions against foreign States, and adoption of measures of constraint and execution against the property of a foreign State, shall be allowed only with the consent of the competent institutions of the foreign State.” 21. On 5 January 1998 the Supreme Court gave a decision in the case of Stukonis v. United States embassy, regarding an action for unlawful dismissal against the United States embassy in Vilnius. Article 479 § 1 of the 1964 Code of Civil Procedure was considered by the court to be inappropriate in the light of the changing reality of international relations and public international law. The Supreme Court noted the trend in international legal opinion to restrict the categories of cases in which a foreign State could invoke immunity from the jurisdiction of forum courts. It held that Lithuanian legal practice should follow the doctrine of restrictive State immunity. It found, inter alia, as follows: “State immunity does not mean immunity from institution of civil proceedings, but immunity from jurisdiction of courts. The Constitution establishes the right to apply to a court (Article 30) ... However, the ability of a court to defend the rights of a claimant, where the defendant is a foreign State, will depend on whether that foreign State requests the application of the State immunity doctrine ... In order to determine whether or not the dispute should give rise to immunity ... it is necessary to determine the nature of the legal relations between the parties ...” 22. On 21 December 200 0 the plenary of the Supreme Court adopted a decision regarding “ Judicial Practice in the Republic of Lithuania in Applying Rules of Private International Law ” ( Teismų Praktika 2001, no. 14). It stated that while Article 479 of the Code of Civil Procedure established a norm whereby “foreign States [and] diplomatic and consular representatives and diplomats of foreign States enjoy [ ed ] immunity from the jurisdiction of Lithuanian courts ”, that rule guaranteed State immunity only for “legal relations governed by public law”. The Supreme Court pointed out that when deciding whether or not a case containing an international element fell within the jurisdiction of Lithuanian courts, the court in question had to consider whether its judgment would be recognised and enforced in the foreign State concerned or whether it would refuse to do so. If the case also fell within the jurisdiction of a foreign court, the forum court would be entitled to relinquish jurisdiction and instruct the claimant to take proceedings in the court of the foreign State where the judgment should be enforced. This interpretation by the Supreme Court had to be followed by the lower courts. 23. On 6 April 2007 the Supreme Court delivered a judgment in a case that was very similar to that of the applicant, namely S.N. v. the embassy of the Kingdom of Sweden. It found that “ despite the fact that the Kingdom of Sweden had not enacted any legislation on State immunity, it could nevertheless be seen from the case-law of the domestic courts that Sweden recognised the doctrine of restrictive State immunity ”. In that case it was considered that the provisions of the United Nations Convention on Jurisdictional Immunities of States and their Property, adopted on 2 December 2004, could be taken into account, even though they were not binding, since they reflected a certain trend in international law in matters of State immunity. The Supreme Court further observed that the case-law of the courts of both States – Lithuania and Sweden – being based on common practice in international relations, confirmed that they had been adhering to a restrictive approach to State immunity, whereby a State could not claim immunity from jurisdiction if the dispute was of a private-law nature. In such cases Sweden could not therefore object to the case being heard by the Lithuanian courts. However, the Supreme Court held that the dispute between the parties had arisen from a public-law relationship and was not an employment relationship under private law. 24. The Supreme Court further observed that there was no uniform international practice of States whereby the members of staff of foreign States ’ diplomatic missions who participated in the exercise of the public authority of the States they represented could be distinguished from other members of staff. As there were no legally binding international rules, it was for each State to take its own decisions in such matters. III. RELEVANT INTERNATIONAL LAW AND PRACTICE 25. The relevant provisions of the 1972 European Convention on State Immunity (“the Basle Convention”) read as follows : Article 5 “1. A Contracting State cannot claim immunity from the jurisdiction of a court of another Contracting State if the proceedings relate to a contract of employment between the State and an individual where the work has to be performed on the territory of the State of the forum. 2. Paragraph 1 shall not apply where: ( a) the individual is a national of the employing State at the time when the proceedings are brought; ( b) at the time when the contract was entered into the individual was neither a national of the State of the forum nor habitually resident in that State; or ( c) the parties to the contract have otherwise agreed in writing, unless, in accordance with the law of the State of the forum, the courts of that State have exclusive jurisdiction by reason of the subject matter. ... ” 26. The Convention ’ s Explanatory Report indicates that “ [a] s regards contracts of employment with diplomatic missions or consular posts, Article 32 shall also be taken into account ”. That Article provides as follows: Article 32 “Nothing in the present Convention shall affect privileges and immunities relating to the exercise of the functions of diplomatic missions and consular posts and of persons connected with them.” 27. Neither Lithuania nor Poland are parties to the Basle Convention. 28. In 1979 the United Nations International Law Commission (ILC) was given the task of codifying and gradually developing international law in matters of jurisdictional immunities of States and their property. It produced a number of drafts that were submitted to States for comment. Lithuania never made any negative observation on those drafts. The Draft Articles that were used as the basis for the text adopted in 2004 dated back to 199 1. The relevant part of the text then read as follows: Article 11 – Contracts of employment “1. Unless otherwise agreed between the States concerned, a State cannot invoke immunity from jurisdiction before a court of another State which is otherwise competent in a proceeding which relates to a contract of employment between the State and an individual for work performed or to be performed, in whole or in part, in the territory of that other State. 2. Paragraph 1 does not apply if: ( a ) the employee has been recruited to perform functions closely related to the exercise of governmental authority; (b) the subject of the proceeding is the recruitment, renewal of employment or reinstatement of an individual; (c) the employee was neither a national nor a habitual resident of the State of the forum at the time when the contract of employment was concluded; (d) the employee is a national of the employer State at the time when the proceeding is instituted; or (e) the employer State and the employee have otherwise agreed in writing, subject to any considerations of public policy conferring on the courts of the State of the forum exclusive jurisdiction by reason of the subject matter of the proceeding.” 29. In the commentary on the ILC ’ s Draft Articles of 1991, it was stated that the rules formulated in Article 11 appeared to be consistent with the trend in the legislative and treaty practice of a growing number of States ( ILC Yearbook, 1991, Vol. II, Part 2, p. 44, paragraph 14). 30. In December 2004 the United Nations General Assembly adopted the Convention on Jurisdictional Immunities of States and their Property. It was opened for signature on 17 January 2005. One of the major issues that had arisen during the codification work by the ILC related to the exception from State immunity in so far as it related to employment contracts. The final version of Article 11, as set out in the Convention, reads as follows: Article 11 – Contracts of employment “ 1. Unless otherwise agreed between the States concerned, a State cannot invoke immunity from jurisdiction before a court of another State which is otherwise competent in a proceeding which relates to a contract of employment between the State and an individual for work performed or to be performed, in whole or in part, in the territory of that other State. 2. Paragraph 1 does not apply if: ( a ) the employee has been recruited to perform particular functions in the exercise of governmental authority; ( b ) the employee is: ( i ) a diplomatic agent, as defined in the Vienna Convention on Diplomatic Relations of 1961; (ii) a consular officer, as defined in the Vienna Convention on Consular Relations of 1963; (iii) a member of the diplomatic staff of a permanent mission to an international organisation or of a special mission, or is recruited to represent a State at an international conference; or (iv) any other person enjoying diplomatic immunity; ( c ) the subject matter of the proceeding is the recruitment, renewal of employment or reinstatement of an individual; ( d ) the subject matter of the proceeding is the dismissal or termination of employment of an individual and, as determined by the head of State, the head of government or the Minister for Foreign Affairs of the employer State, such a proceeding would interfere with the security interests of that State; ( e ) the employee is a national of the employer State at the time when the proceeding is instituted, unless this person has the permanent residence in the State of the forum; or ( f ) the employer State and the employee have otherwise agreed in writing, subject to any considerations of public policy conferring on the courts of the State of the forum exclusive jurisdiction by reason of the subject matter of the proceeding.” 31. Lithuania did not vote against the adoption of this text but has not ratified it either. 32. The understandings with respect to Article 11 in the Annex to the United Nations Convention explain that the reference to the “security interests” of the employer State, in paragraph 2 (d), “is intended primarily to address matters of national security and the security of diplomatic missions and consular posts”. 33. Article 1 of the 1961 Vienna Convention on Diplomatic Relations, which is appended to the Lithuanian Diplomatic Privileges Act 1964, provides the following definitions: Article 1 “ ... (a) the ‘ head of the mission ’ is the person charged by the sending State with the duty of acting in that capacity; (b) the ‘ members of the mission ’ are the head of the mission and the members of the staff of the mission; (c) the ‘ members of the staff of the mission ’ are the members of the diplomatic staff, of the administrative and technical staff and of the service staff of the mission; (d) the ‘ members of the diplomatic staff ’ are the members of the staff of the mission having diplomatic rank; (e) a ‘ diplomatic agent ’ is the head of the mission or a member of the diplomatic staff of the mission; (f) the ‘ members of the administrative and technical staff ’ are the members of the staff of the mission employed in the administrative and technical service of the mission; ...” THE LAW I. THE GOVERNMENT ’ S PRELIMINARY OBJECTION 34. The Government argued that, both in theory and in practice, the applicant could have taken proceedings in the Polish courts to complain about the termination of her contract with the Polish embassy in Vilnius, as the Lithuanian Supreme Court had in fact suggested. The Polish courts had jurisdiction to hear her case and would have applied Lithuanian substantive law. The applicant ’ s contract of employment actually contained a clause providing that any dispute arising under the contract was to be settled in accordance with the laws of Lithuania. Since Article 479 § 1 of the Code of Civil Procedure and the relevant case-law excluded the jurisdiction of the Lithuanian courts, following the Republic of Poland ’ s request to be granted State immunity, that clause covered the application only of the substantive provisions of Lithuanian law. Furthermore, by virtue of Lithuanian law, the applicant was not time-barred from taking proceedings in the Polish courts, which still had jurisdiction to examine her claims concerning the termination of her contract of employment. 35. The Court observes that the present application was declared admissible on 2 March 2006. Even supposing that the above argument is to be regarded as an objection that the applicant failed to exhaust domestic remedies and that the Government are not estopped from raising it, the Court notes that Article 35 § 1 of the Convention refers in principle only to remedies that are made available by the respondent State. It does not therefore cover, in the present case, remedies available in Poland. 36. Moreover, the Court notes that Article 8 of the contract of employment between the applicant and the Polish embassy provided that any disputes arising under it were to be settled in accordance with the laws of Lithuania, more specifically the Constitution, the Employment Contracts Act, the Labour Remuneration Act, the Leave Act and the Employees ’ Social Security Act. It could therefore be argued that, if the applicant had submitted her complaints to the Polish courts, they would have applied the substantive law chosen by the parties, that is to say Lithuanian law. However, the Court finds that such a remedy, even supposing that it was theoretically available, was not a particularly realistic one in the circumstances of the case. If the applicant had been required to use such a remedy she would have encountered serious practical difficulties which would have been incompatible with her right of access to a court, which, like all other rights in the Convention, must be interpreted so as to make it practical and effective, not theoretical or illusory (see, among other authorities, United Communist Party of Turkey and Others v. Turkey, 30 January 1998, § 33, Reports of Judgments and Decisions 1998 - I). The applicant was a Lithuanian national, recruited in Lithuania under a contract that was governed by Lithuanian law, and the Republic of Poland had itself agreed on this choice of law in the contract. 37. Accordingly, the submission of the applicant ’ s complaint to the Polish courts cannot be regarded, in the circumstances of the present case, as an accessible or effective remedy. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 38. The applicant contended that, by granting the Polish government ’ s objection, the Lithuanian courts had deprived her of her right of access to a court, within the meaning of Article 6 of the Convention, of which the relevant part reads as follows: “ 1. In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” A. Applicability of Article 6 § 1 39. Referring to the judgment given by the Court in Vilho Eskelinen and Others v. Finland ( [GC], no. 63235/00, § 62, ECHR 2007 - II ), and in particular to the two conditions that have to be fulfilled for Article 6 to be applicable in this type of case, the Government submitted that the application should be declared incompatible ratione materiae with the provisions of the Convention. 40. In the Government ’ s view, it appeared from the case-law of the Lithuanian Supreme Court, and in particular from its judgments of 5 January 1998 and 6 April 2007, together with the judgment of 25 June 2001 in the applicant ’ s case, that all persons employed in the diplomatic mission of a foreign State, including staff in administrative and technical departments, had to be regarded as contributing in one way or another to the performance of duties relating to sovereign acts of authority by the State concerned and therefore as serving the public interests of that State. The type of duties that the applicant performed at the Polish embassy in Vilnius justified the application of State immunity in her case. She had actually had direct access to all official documents and activities of the embassy. Therefore, she had been much more than simply a member of the service staff. 41. The applicant stated, for her part, that by bringing an action before the Lithuanian courts she had sought to challenge the legal basis for her dismissal in order to obtain compensation. She took the view that both her employment contract and her claim for wrongful dismissal were of a predominantly private-law nature. 42. The Court reiterates its finding from the Vilho Eskelinen and Others judgment (cited above, § 62 ) that two conditions must be fulfilled in order for the respondent State to be able to rely before the Court on an applicant ’ s status as a civil servant in excluding him or her from the protection embodied in Article 6. Firstly, the State in its national law must have expressly excluded access to a court for the post or category of staff in question. Secondly, the exclusion must be justified on objective grounds in the State ’ s interest. 43. It should nevertheless be pointed out that the above-mentioned judgment concerned the relationship between a State and its own civil servants, whereas that is not the situation in the present case: the applicant, a Lithuanian national, was employed in the Polish embassy on the basis of a contractual relationship between her and, ultimately, the Republic of Poland. She could not therefore be regarded, before the Lithuanian courts, as a civil servant of Lithuania. 44. However, even supposing that the Vilho Eskelinen and Others case-law is applicable, mutatis mutandis, to the present case, it could not reasonably be argued that the second condition has been fulfilled in the applicant ’ s case. It appears from the schedule to her employment contract that her duties at the Polish embassy consisted of operating the switchboard of the embassy and Consulate -General and of recording international telephone conversations; typing up texts in Lithuanian and Polish; sending and receiving faxes; providing information in Polish, Lithuanian and Russian; helping to organise small receptions and cocktail parties; and photocopying documents (see paragraph 12 above). In the Court ’ s view, the performance of such duties can hardly give rise to “ objective grounds [for exclusion] in the State ’ s interest ” within the meaning of the above-cited Vilho Eskelinen and Others judgment. 45. It therefore remains for the Court to examine whether the dispute in question concerned a civil right within the meaning of Article 6 § 1 of the Convention. In this connection, the Court reiterates that Article 6 § 1 extends to “ disputes” ( “ contestations ” ) over civil “rights” ( “ droits ” ) which can be said, at least on arguable grounds, to be recognised under domestic law, irrespective of whether they are also protected under the Convention (see, among other authorities, Editions Périscope v. France, 26 March 1992, § 35, Series A no. 234 - B, and Zander v. Sweden, 25 November 1993, § 22, Series A no. 279 - B ). Such dispute may relate not only to the actual existence of a right but also to its scope and the manner of its exercise; and, lastly, the result of the proceedings must be directly decisive for the right in question (see Vilho Eskelinen and Others, cited above, § 40). 46. The Court finds that these conditions are fulfilled in the present case, as the applicant ’ s action before the Lithuanian Supreme Court concerned a compensation claim for wrongful dismissal. 47. Article 6 § 1 of the Convention was therefore applicable to the proceedings before the Lithuanian courts. B. Compliance with Article 6 § 1 1. The parties ’ submissions (a) The applicant 48. The applicant submitted that no description of her official duties had ever been appended to her employment contract. The low-level post that she occupied did not include any tasks or functions which could justify considering the application of State immunity within the meaning of the relevant provisions of the Basle Convention or the United Nations Convention on Jurisdictional Immunities of States and their Property. (b) The Government 49. The Government argued that the limitation imposed on the applicant ’ s right of access to a court pursued a legitimate aim, namely to promote respect for the independence and sovereign equality of States in accordance with domestic and public international law. 50. As regards the proportionality of the restriction, the Government observed that international legal instruments and the case-law of a certain number of States considered that, in employment-related disputes, State immunity was not limited when the employer was a foreign embassy. Both in Lithuania and Poland, questions of State immunity were governed by customary international law, such questions not having been resolved by any bilateral agreements. In support of their argument, the Government relied on Article 32 of the Basle Convention, Article 38 § 2 of the Vienna Convention on Diplomatic Relations and Article 11 § 2 (c) of the United Nations Convention on Jurisdictional Immunities of States and their Property. They contended that States enjoyed a discretionary power of appointment to official posts. The same applied to the “dismissal” or “ termination of contract ” of civil servants after an inquiry or an investigation as part of the supervisory or disciplinary powers exercised by the employer State. 51. In the present case, the reason why the Polish embassy had requested the application of State immunity in the applicant ’ s case was, in the Government ’ s submission, partly to do with the origin of the dispute – allegations of sexual harassment involving a member of the embassy ’ s diplomatic staff – that the Lithuanian courts could not have properly examined without questioning persons enjoying diplomatic immunity. 52. Thus, the subject matter of the applicant ’ s claim before the courts would have involved investigation into the public and sovereign sphere of Poland. The Lithuanian Supreme Court had reached a reasonable conclusion, taking into consideration, inter alia, the fact that Poland, in invoking State immunity, considered that the dispute between the applicant and the Polish embassy was not an ordinary employment dispute. 53. In any event, even if the Lithuanian courts had assumed jurisdiction to hear the applicant ’ s case and had dealt with it on the merits (for example, finding that the dismissal had been unlawful and awarding the applicant compensation), it would have been impossible to enforce the decision against the respondent State, namely Poland, which had indicated, by means of a diplomatic note, its formal refusal to appear in the proceedings as defendant. 2. The Court ’ s assessment (a) General principles emerging from the Court ’ s case-law 54. The Court reiterates that the right to a fair hearing, as guaranteed by Article 6 § 1 of the Convention, must be construed in the light of the principle of the rule of law, which requires that all litigants should have an effective judicial remedy enabling them to assert their civil rights (see Běleš and Others v. the Czech Republic, no. 47273/99, § 49, ECHR 2002 - IX ). Everyone has the right to have any claim relating to his civil rights and obligations brought before a court or tribunal. In this way, Article 6 § 1 embodies the “right to a court”, of which the right of access, that is, the right to institute proceedings before courts in civil matters, constitutes one aspect only (see Golder v. the United Kingdom, 21 February 1975, § 36, Series A no. 18, and Prince Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98, § 43, ECHR 2001 - VIII ). 55. However, the right of access to a court secured by Article 6 § 1 of the Convention is not absolute, but may be subject to limitations; these are permitted by implication since the right of access by its very nature calls for regulation by the State. In this respect, the Contracting States enjoy a certain margin of appreciation, although the final decision as to the observance of the Convention ’ s requirements rests with the Court. It must be satisfied that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation of the right of access to a court will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see Waite and Kennedy v. Germany [GC], no. 26083/94, § 59, ECHR 1999 - I; T.P. and K.M. v. the United Kingdom [GC], no. 28945/95, § 98, 10 May 2001; and Fogarty v. the United Kingdom [GC], no. 37112/97, § 33, 21 November 2001 ). 56. Moreover, the Convention has to be interpreted in the light of the rules set out in the Vienna Convention of 23 May 1969 on the Law of Treaties, Article 31 § 3 (c) of which indicates that account is to be taken of “any relevant rules of international law applicable in the relations between the parties”. The Convention, including Article 6, cannot be interpreted in a vacuum. The Court must therefore be mindful of the Convention ’ s special character as a human rights treaty, and it must also take the relevant rules of international law into account, including those relating to the grant of State immunity (see Fogarty, cited above, § 35 ). 57. It follows that measures taken by a High Contracting Party which reflect generally recognised rules of public international law on State immunity cannot in principle be regarded as imposing a disproportionate restriction on the right of access to a court as embodied in Article 6 § 1. Just as the right of access to a court is an inherent part of the fair trial guarantee in that Article, so some restrictions on access must likewise be regarded as inherent, an example being those limitations generally accepted by the community of nations as part of the doctrine of State immunity (see Kalogeropoulou and Others v. Greece and Germany ( dec. ), no. 59021/00, ECHR 2002 - X, and Fogarty, cited above, § 36). 58. Furthermore, it should be remembered that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective. This is particularly so of the right of access to the courts in view of the prominent place held in a democratic society by the right to a fair trial (see Aït-Mouhoub v. France, 28 October 1998, § 52, Reports 1998 - VIII ). It would not be consistent with the rule of law in a democratic society or with the basic principle underlying Article 6 § 1 – namely that civil claims must be capable of being submitted to a judge for adjudication – if a State could, without restraint or control by the Convention enforcement bodies, remove from the jurisdiction of the courts a whole range of civil claims or confer immunities from civil liability on categories of persons (see Fayed v. the United Kingdom, 21 September 1994, § 65, Series A no. 294 - B ). 59. Therefore, in cases where the application of the principle of State immunity from jurisdiction restricts the exercise of the right of access to a court, the Court must ascertain whether the circumstances of the case justify such restriction. (b) Application to the present case 60. The Court must first examine whether the limitation pursued a legitimate aim. In this connection, it observes that State immunity was developed in international law out of the principle par in parem non habet imperium, by virtue of which one State could not be subject to the jurisdiction of another. The Court considers that the grant of immunity to a State in civil proceedings pursues the legitimate aim of complying with international law to promote comity and good relations between States through the respect of another State ’ s sovereignty. 61. In the Fogarty case (cited above), the applicant had successfully brought an initial action against the United States for sex discrimination after her dismissal from a post of administrative assistant at the United States embassy in London. Following a number of subsequent and unsuccessful applications for other employment at the embassy, the applicant had then commenced fresh proceedings before the United Kingdom courts claiming sex discrimination, but those proceedings were discontinued because the United States government claimed immunity from jurisdiction. It was this second set of proceedings that gave rise to the application to the Court and ultimately to the Fogarty judgment. 62. The Court notes that the present case can be distinguished from that of Fogarty in that it does not concern recruitment but rather the dismissal of a member of the local staff of an embassy. In spite of that difference, the Court takes the view that its finding that the restrictions in the Fogarty case pursued a legitimate aim similarly applies to the present case. It should therefore now be examined whether the impugned restriction to the applicant ’ s right of access was proportionate to the aim pursued. 63. The Court found, already in the Fogarty judgment, that there was a trend in international and comparative law towards limiting State immunity in respect of employment-related disputes, with the exception, however, of those concerning the recruitment of staff in embassies (§§ 37-38). 64. In this connection, the Court notes that the application of absolute State immunity has, for many years, clearly been eroded. In 1979 the International Law Commission (ILC) was given the task of codifying and gradually developing international law in the area of jurisdictional immunities of States and their property. It produced a number of drafts that were submitted to States for comment. The Draft Articles it adopted in 1991 included one – Article 11 – on contracts of employment (see paragraph 28 above). In 2004 the United Nations General Assembly adopted the Convention on Jurisdictional Immunities of States and their Property (see paragraph 30 above). 65. The 1991 Draft Articles, on which the 2004 United Nations Convention ( and Article 11 in particular) was based, created a significant exception in matters of State immunity by, in principle, removing from the application of the immunity rule a State ’ s employment contracts with the staff of its diplomatic missions abroad. However, that exception was itself subject to exceptions whereby, in substance, immunity still applied to diplomatic and consular staff in cases where: the subject of the dispute was the recruitment, renewal of employment or reinstatement of an individual; the employee was a national of the employer State; or, lastly, the employer State and the employee had otherwise agreed in writing. 66. The report appended to the 1991 Draft Articles stated that the rules formulated in Article 11 appeared to be consistent with the emerging trend in the legislative and treaty practice of a growing number of States ( ILC Yearbook, 1991, Vol. II, Part 2, p. 44, paragraph 14). This must also hold true for the 2004 United Nations Convention. Furthermore, it is a well-established principle of international law that, even if a State has not ratified a treaty, it may be bound by one of its provisions in so far as that provision reflects customary international law, either “codifying” it or forming a new customary rule (see the judgment of the International Court of Justice in the North Sea Continental Shelf cases, ICJ Reports 1969, p. 41, § 71). Moreover, there were no particular objections by States to the wording of Article 11 of the ILC ’ s Draft Articles, at least not by the respondent State. As to the 2004 United Nations Convention, Lithuania has admittedly not ratified it but did not vote against its adoption either. 67. Consequently, it is possible to affirm that Article 11 of the ILC ’ s 1991 Draft Articles, on which the 2004 United Nations Convention was based, applies to the respondent State under customary international law. The Court must take this into consideration in examining whether the right of access to a court, within the meaning of Article 6 § 1, was respected. 68. The above finding is in fact confirmed by Lithuanian domestic law. Admittedly, Article 479 of the Code of Civil Procedure, as in force at the relevant time, enshrined the so-called absolute State immunity rule. However, on 21 December 2000 the plenary of the Lithuanian Supreme Court adopted a decision ( no. 28 ) regarding “ Judicial Practice in the Republic of Lithuania in Applying Rules of Private International Law”. It stated that while Article 479 of the Code of Civil Procedure established a norm whereby “foreign States [and] diplomatic and consular representatives and diplomats of foreign States enjoy [ed] immunity from the jurisdiction of Lithuanian courts ”, that rule guaranteed State immunity only for “legal relations governed by public law”. A contrario, that immunity rule did not apply to relations governed by private law. This conclusion confirmed the practice of the Supreme Court, which has abandoned the concept of absolute State immunity (see paragraph 22 above). 69. The Court further notes that the applicant was not covered by any of the exceptions enumerated in Article 11 of the ILC ’ s Draft Articles: she did not perform any particular functions closely related to the exercise of governmental authority. In addition, she was not a diplomatic agent or consular officer, nor was she a national of the employer State. Lastly, the subject matter of the dispute was linked to the applicant ’ s dismissal. 70. The Court observes in particular that the applicant was a switchboard operator at the Polish embassy whose main duties were: recording international telephone conversations, typing, sending and receiving faxes, photocopying documents, providing information and assisting with the organisation of certain events. Neither the Lithuanian Supreme Court nor the respondent Government have shown how these duties could objectively have been related to the sovereign interests of the Polish government. While the schedule to the employment contract stated that the applicant could have been called upon to do other work at the request of the head of mission, it does not appear from the case file – nor have the Government provided any details in this connection – that she actually performed any functions related to the exercise of sovereignty by the Polish State. 71. In its judgment of 25 June 2001, the Supreme Court stated that, in order to determine whether or not it had jurisdiction to hear employment disputes involving a foreign mission or embassy, it was necessary to establish in each case whether the employment relationship in question was one of a public-law nature ( acta jure imperii ) or of a private-law nature ( acta jure gestionis ). In the present case, however, the Supreme Court found that it had been unable to obtain any information allowing it to establish the scope of the applicant ’ s “ actual duties ”. It therefore referred solely to the title of her position, and to the fact that Poland had invoked immunity from jurisdiction, in concluding that the duties entrusted to her had “ facilitated, to a certain degree, the exercise by the Republic of Poland of its sovereign functions ” (see paragraph 18 above). 72. As to whether the duties in question were of importance for Poland ’ s security interests – a criterion subsequently enshrined in Article 11 § 2 (d) of the 2004 United Nations Convention – the mere allegation that the applicant could have had access to certain documents or could have been privy to confidential telephone conversations in the course of her duties is not sufficient. On this point it should not be overlooked that the applicant ’ s dismissal and the ensuing proceedings arose originally from acts of sexual harassment that had been established by the Lithuanian Equal Opportunities Ombudsman, with whom the applicant had filed her complaint. Such acts can hardly be regarded as undermining Poland ’ s security interests. 73. Lastly, as to any difficulties that the Lithuanian authorities may encounter in enforcing against Poland a Lithuanian judgment in favour of the applicant, such considerations cannot frustrate the proper application of the Convention. 74. In conclusion, by upholding in the present case an objection based on State immunity and by declining jurisdiction to hear the applicant ’ s claim, the Lithuanian courts, in failing to preserve a reasonable relationship of proportionality, overstepped their margin of appreciation and thus impaired the very essence of the applicant ’ s right of access to a court. 75. Accordingly, there has been a violation of Article 6 § 1 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 76. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 77. The applicant claimed 327,978.30 Lithuanian litai (LTL ) (approximately 94,988 euros (EUR)) in respect of the pecuniary damage she had allegedly sustained between 22 November 1999 and 30 June 2009. For non-pecuniary damage she sought LTL 350,000 (approximately EUR 101,367). 78. The Government argued that the applicant ’ s claims, for both pecuniary and non-pecuniary damage, were excessive and had no causal connection with the alleged violation of the Convention. 79. The Court first considers that, where, as in the instant case, an individual has been the victim of proceedings that have entailed breaches of the requirements of Article 6 of the Convention, a retrial or the reopening of the case, if he or she so requests, represents in principle an appropriate way of redressing the violation (see Sejdovic v. Italy [GC], no. 56581/00, § 126, ECHR 2006 - II; see also, mutatis mutandis, Öcalan v. Turkey [GC], no. 46221/99, § 210, ECHR 2005 - IV ). The Court further notes that in the present case an award of just satisfaction can only be based on the fact that the applicant did not have the benefit of the guarantees of Article 6. While the Court cannot speculate as to the outcome of the trial had the position been otherwise, it does not find it unreasonable to regard the applicant as having been deprived of a real opportunity (see Colozza v. Italy, 12 February 1985, § 38, Series A no. 89, and Pélissier and Sassi v. France [GC], no. 25444/94, § 80, ECHR 1999 - II ). In addition, the applicant has sustained non-pecuniary damage which the finding of a violation of the Convention in this judgment does not suffice to remedy. Ruling on an equitable basis, as required by Article 41, the Court awards the applicant EUR 10,000 for all heads of damage combined. B. Costs and expenses 80. The applicant sought an “appropriate sum”, without evaluating it, to cover the costs and expenses incurred in to the proceedings before the Court. 81. The Government argued that, as there had been no violation of Article 6 in the present case, the applicant ’ s claim should be dismissed. 82. The Court notes that the applicant was granted legal aid for the proceedings before it. Her claim was not accompanied by any supporting documents showing that the sum paid to her by the Council of Europe by way of legal aid had not adequately covered all the costs and expenses incurred in connection with the proceedings before the Court. 83. The Court therefore dismisses the applicant ’ s claim under this head. C. Default interest 84. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | As regards the applicability of Article 6 (right of access to court) of the Convention to the present case, the Court found that the applicant’s status as a civil servant did not, on the facts, exclude her from Article 6 protection. Since the exclusion did not apply and the applicant’s action before the Lithuanian Supreme Court was for compensation for wrongful dismissal, it concerned a civil right within the meaning of Article 6 § 1 of the Convention. As regards the merits, the Court held that there had been a violation of Article 6 § 1 (right to a fair trial) of the Convention. It found that by granting State immunity and declining jurisdiction to hear the applicant’s claim, the Lithuanian courts had impaired the very essence of the applicant’s right of access to court. |
289 | (Suspected) terrorists | RELEVANT LEGAL FRAMEWORK 36. Article 125 of the former Criminal Code (Law no. 765) provided as follows: “Whosoever shall attempt to alter or amend in whole or in part the Constitution of the Republic of Turkey or to effect a coup d’état against the Grand National Assembly formed under the Constitution or to prevent it by force from carrying out its functions shall be liable to the death penalty.” 37. The relevant parts of Article 180 of the Code of Criminal Procedure (Law no. 5271 of 4 December 2004), entitled “Examination of witnesses and experts by a delegated judge or on commission”, provide as follows: “(1) In cases where it is impossible for a witness or an expert to be present at a hearing for a long and unanticipated period of time owing to sickness, invalidity or any other unavoidable reason, the court may decide [that] he or she shall be examined by a delegated judge or on commission. (2) This provision shall also apply in respect of witness[es] and expert[s] [in cases] where it is difficult to bring them to court because their [private] place of residence is located outside the jurisdiction of the competent court. ... (5) If there is a possibility, pursuant to the above paragraphs, that witness[es] and expert[s] may be examined via the use of audiovisual communication techniques, evidence shall be taken by using this method. The conditions and procedure for the installation and use of technical equipment allowing this [method to be employed] shall be laid down in a regulation.” 38. Article 181 provides as follows: “(1) The date on which a witness or an expert is to give evidence shall be notified to the public prosecutor, the victim and his or her representative, the accused and his or her defence counsel. (2) The above provision shall also apply in cases where a new physical examination [of the accused] and reconstruction of events are required. (3) A detainee may only ask to be present during acts of this type in the court of his place of detention. However, in cases where it is deemed necessary, the judge or court may decide to have a detained suspect or accused present during such acts.” THE LAW ALLEGED VIOLATION OF ARTICLE 6 §§ 1 and 3 (d) OF THE CONVENTION 39. The applicant complained under Article 6 § 3 (d) of the Convention that he had not had a fair trial in that he had been prevented from confronting certain witnesses in person. The relevant parts of Article 6 read as follows: “1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing by [a] ... tribunal ... ... 3. Everyone charged with a criminal offence has the following minimum rights: ... (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ...” Admissibility 40. The Court notes that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. MeritsThe parties’ submissions The parties’ submissions The parties’ submissions 41. The applicant did not submit any observations within the time-limit allocated for that purpose. 42. The Government argued that the trial court’s decision to have the four witnesses examined by the courts of their places of residence pursuant to letters of request sent to those courts had been taken in accordance with Article 180 of the Code of Criminal Procedure, which provided for such a method under certain circumstances. Y.A., S.Y. and A.T. were all convicted persons who had been serving prison sentences in three different cities in Turkey. As for F.K., the trial court had revoked its decision to take evidence from him after efforts to locate him had been to no avail. While A.T., S.Y. and Y.A. could not recall their previous statements, arguing that a long time had passed since then, the latter had been able to recall a person with the code name “Avareş” as written in his statements. Furthermore, although the applicant’s lawyer had been notified of the hearings held in the courts which had taken evidence from those witnesses, he had not attended any of the commission hearings. 43. Moreover, the trial court had carried out a meticulous assessment of the evidence in the case file before convicting the applicant. In that connection, it had not found credible the evidence given by the witnesses before the courts acting on the letters of request, setting out the reasons leading it to attach more weight to their initial statements. Similarly, the trial court had also provided a reasoned reply to the applicant’s allegations that there had been more than one person with the code name “Avareş”. The Government therefore asked the Court to find that there had been no violation of Article 6 of the Convention. The Court’s assessment (a) General principles 44. The key principle governing the application of Article 6 is fairness. The right to a fair trial holds so prominent a place in a democratic society that there can be no justification for interpreting the guarantees of Article 6 § 1 of the Convention restrictively (see Asatryan v. Armenia, no. 3571/09, § 51, 27 April 2017). 45. The general principles with regard to complaints relating to the examination of absent witnesses and use by the courts of the evidence given by those witnesses may be found in Schatschaschwili v. Germany ([GC], no. 9154/10, §§ 100-131, ECHR 2015), and Al-Khawaja and Tahery v. the United Kingdom ([GC], nos. 26766/05 and 22228/06, §§ 118 ‑ 147, ECHR 2011; see also Seton v. the United Kingdom, no. 55287/10, §§ 57 ‑ 59, 31 March 2016 for a concise summary of those principles). 46. In sum, these principles lay down a tripartite test whereby the Court is required to examine: (i) whether there was a good reason for the non-attendance of the absent witness at the trial; (ii) whether the evidence given by the absent witness was the sole or decisive basis for the applicant’s conviction or carried significant weight in that regard; and (iii) whether there were sufficient counterbalancing factors to compensate for the handicaps under which the defence laboured vis ‑ à ‑ vis the evidence given by the absent witness. Moreover, the Court has also pointed out that, as with all complaints under Article 6 § 3, the defendant’s inability to examine a witness should be assessed in the light of the impact that it has had on the overall fairness of his trial (see Šmajgl v. Slovenia, no. 29187/10, § 61, 4 October 2016). The Court has already held that the same principles will be applicable in respect of the examination of a witness in the course of the trial, including the relevant modalities thereof (see Chernika v. Ukraine, no. 53791/11, § 46, 12 March 2020; Ürek and Ürek v. Turkey, no. 74845/12, § 49, 30 July 2019; and Cherpion v. Belgium (dec.), no. 47158/11, §§ 35-41, 9 May 2017). 47. The Court reiterates that Article 6 § 3 (d) enshrines the principle that, before an accused can be convicted, all evidence against him must normally be produced in his presence at a public hearing with a view to adversarial argument. Exceptions to this principle are possible but must not infringe the rights of the defence, which, as a rule, require that the accused should be given an adequate and proper opportunity to challenge and question a witness against him, either when that witness makes his statement or at a later stage of the proceedings (see Schatschaschwili, cited above, § 103, and Lucà v. Italy, no. 33354/96, § 39, ECHR 2001 ‑ II). 48. Under certain circumstances, it may be necessary for the courts to have recourse to statements made during the criminal investigation stage. If the accused had sufficient and adequate opportunity to challenge such statements, at the time they were taken or at a later stage of the proceedings, their use does not run counter to the guarantees of Article 6 §§ 1 and 3 (d) of the Convention (see Berhani v. Albania, no. 847/05, § 51, 27 May 2010, with further references therein). In that connection, the Court further reiterates that evidence obtained from a witness under conditions in which the rights of the defence cannot be secured to the extent normally required by the Convention should, however, be treated with extreme care (see Visser v. the Netherlands, no. 26668/95, § 44, 14 February 2002, and S.N. v. Sweden, no. 34209/96, § 53, ECHR 2002-V). While it is true that the admission of such evidence will not automatically result in a breach of Article 6, the Court must subject the proceedings to the most searching scrutiny where a conviction is based solely or decisively on the evidence of absent witnesses or where such evidence carried significant weight in respect thereof (see Al-Khawaja and Tahery, cited above, §§ 118-147). The question in each case is whether there are sufficient counterbalancing factors in place, including measures that permit a fair and proper assessment of the reliability of that evidence to take place. This would permit a conviction to be based on such evidence only if it is sufficiently reliable given its importance in the case (ibid., § 147). 49. Furthermore, the Court reiterates that failure to recall a witness previously cross-examined by the applicant in the event of a retraction of his or her incriminating testimony may raise an issue under Article 6 §§ 1 and 3 (d) of the Convention (see Bondar v. Ukraine, no. 18895/08, § 75, 16 April 2019). This approach is a fortiori applicable in respect of witnesses that have not been cross-examined at any stage of the proceedings by the applicant. 50. As regards confrontations, the Court has already held that it is normally desirable that witnesses should identify a person suspected of serious crimes in person if there is any doubt about his or her identity (see Šmajgl, cited above, § 70) and that the absence of such identification necessarily creates difficulties for the defence. Furthermore, as regards the criteria developed by the Convention organs to examine whether the absence of a direct confrontation in an individual case complies with the requirements of Article 6 §§ 1 and 3 (d) of the Convention, the Court notes that the first question addressed is similar to that applicable to cases involving absent or anonymous witnesses, namely whether there was a good reason to hear evidence from a witness in the absence of the accused. In cases where it was found that such a good reason existed, the Convention organs have further examined whether the applicants were substantially affected in the exercise of their defence on account of the lack of such a confrontation (see Šmajgl, cited above, § 64). (b) Application of those principles to the instant case (i) Whether there was a good reason for the non-attendance of witnesses S.Y., A.T., Y.A. and F.K. at the trial 51. The Court notes that the applicant went to the police and voluntarily handed himself in, confessing to his involvement with the PKK. In that connection, although he spelled out, inter alia, the activities he had carried out for the PKK over a span of approximately eleven years, he denied having carried out or taken part in any of the armed activities. Nevertheless, the public prosecutor relied on the statements eleven other organisation members had made in the course of different criminal proceedings. He argued that four of those witnesses, namely S.Y., A.T., Y.A. and F.K., had described a certain organisation member with the code name “Avareş” as the person who had taken part in, inter alia, the three armed activities, which had later formed the basis of the indictment lodged against the applicant. Relying on the evidence given by those four witnesses between 1995 and 1999, the public prosecutor averred that the individual described by them was the applicant. 52. The Court notes that it is not disputed that when the four witnesses made their statements between 1995 and 1999, neither the applicant nor his lawyer had the opportunity to examine or question them. Moreover, when the applicant’s lawyer asked the trial court to hold a confrontation between the applicant and the four witnesses, the court decided that they would be examined by the courts of their places of residence. In doing so, the trial court invited those courts to examine the witnesses, show them several photographs, including of the applicant, and ask them whether they were able to identify him. It is important to note that none of the witnesses could identify the applicant from those photographs. 53. The method chosen by the trial court, namely the examination of the witnesses by the courts of their places of residence if they were residing somewhere other than where the trial was taking place, appears to result, as the Government have claimed, from the interpretation of the relevant provisions of the Code of Criminal Procedure, in particular Article 180. The Court should therefore first ascertain whether that interpretation could be considered a good reason in the sense of the term used by the Court in its case-law under Article 6 § 3 (d) of the Convention for the non-attendance of witnesses at trial. 54. In that connection, the Court reiterates that it has already held in Seton (cited above, § 61) that the absence of a witness from the country where the proceedings were being conducted was not in itself sufficient reason to justify his or her absence from the trial (see also Gabrielyan v. Armenia, no. 8088/05, § 81, 10 April 2012). These considerations hold true a priori when witnesses are located in the same country in which the trial against the accused is being held but in different places. Furthermore, the Court has already held that the distance between two cities cannot be regarded of itself and in the abstract as a good reason for failure by judges to ensure the examination of witnesses in person (see Süleyman v. Turkey, no. 59453/10, § 78, 17 November 2020) and that the Contracting States are required to take positive steps, in particular to enable the accused to examine or have examined witnesses against him. Lastly, the Court has clarified that the fact that witnesses are in prison, in other words in a place within the exclusive knowledge and control of the authorities of the State, cannot by and of itself constitute a good reason for their non-attendance at the trial in person (see Bondar, cited above, § 76, and Daştan v. Turkey, no. 37272/08, § 24, 10 October 2017). 55. When viewed in the light of the above principles, the Court notes that the interpretation and application of Article 180 of the Code of Criminal Procedure by the trial court meant that the witnesses would always be examined by the courts of their places of residence if they were residing in a city other than where the trial was taking place. Accordingly, the evidence of three of the four witnesses was taken by courts other than the trial court, and the latter admitted copies of their written statements as evidence in lieu of their live in-court testimony. In other words, the crux of the applicant’s inability to examine the witnesses in person stemmed from the trial court’s inflexible and mechanical approach, which rested on the fact that the witnesses were situated in different cities. In the Court’s view, that fact alone, which precludes any individualised assessment of the question whether there were good reasons for the witnesses’ non-attendance at the trial and which appears to absolve the domestic courts of their duty to make all reasonable efforts to secure their attendance, cannot be considered a good reason to do away with the applicants’ right to confront witnesses before their triers of fact. 56. Indeed, the fact that three of the witnesses were serving their sentences in different prisons in Turkey at the time they gave evidence during the applicant’s trial, and were hence under the exclusive authority of the State, did not prompt the trial court to assess whether it was possible to hear them in person. 57. Similarly, the Court finds that the steps taken by the domestic authorities to locate F.K., which consisted only of enquiring at his alleged work address and calling a mobile telephone number belonging to him do not suggest that they did everything reasonably expected of them to secure his presence (see Panagis v. Greece, no. 72165/13, § 47 in fine, 5 November 2020, and Tseber v. the Czech Republic, no. 46203/08, §§ 50 ‑ 51, 22 November 2012). 58. In view of the above, the Court cannot conclude that the trial court’s decision to send letters of request to the courts was the result of an inability to secure the attendance of the witnesses. Accordingly, it follows that no good reason has been shown by the domestic courts or the Government for the non-attendance of those witnesses at trial. (ii) Whether the evidence of the absent witnesses was the sole or decisive basis for the applicant’s conviction 59. The Court notes that the domestic courts’ decisions contain no assessment as regards the weight attached to the evidence given by the absent witnesses. It will therefore proceed with its own assessment on this point. In that connection, the Court observes that while the applicant acknowledged that he had been a member of the PKK and maintained this position throughout the whole criminal proceedings, he consistently claimed that he had not taken part in any armed activities perpetrated by it. That was a crucial point in the instant case because it was the requisite material element of the offence of “carrying out activities aimed at bringing about the secession of part of the national territory” under Article 125 of the then Criminal Code, of which the applicant was eventually found guilty. Indeed, his conviction under that provision and the eventual life imprisonment imposed on him were contingent upon the establishment of his involvement in the three armed activities carried out by the PKK. 60. While it is true that the trial court had in its possession the statements made by other witnesses and incident reports regarding the acts attributed to the applicant, it appears from the trial court’s reasoned judgment that the evidence given by the four absent witnesses was central to his conviction given that none of the remaining evidence could have been sufficient of itself to find the applicant guilty (see Dan v. Moldova, no. 8999/07, § 31, 5 July 2011). Indeed, the trial court’s findings in respect of the first and third incidents decisively consisted of the statements made by Y.A., F.K. and A.T. As regards the second incident, the trial court based the crux of its assessment on the statements given by S.Y., who was the only person to have stated that the organisation member with the code name “Avareş” had taken part in that incident, before corroborating part of S.Y.’s statements (in so far as it concerned his being a warrior from Diyarbakır operating within the “Karker” group) with those of three other witnesses, including A.T. 61. Therefore, in establishing the applicant’s involvement in the three armed incidents indicated in the indictment and sentencing him to life imprisonment, the trial court relied, in the Court’s view, to a decisive extent on the evidence given by the absent witnesses (contrast Verdam v. the Netherlands, (dec.) no. 35253/97, 31 August 1999). 62. In view of the above, it remains to be seen whether there were any procedural safeguards capable of compensating for the non-attendance at trial of the four witnesses. (iii) Whether there were sufficient counterbalancing factors to compensate for the handicaps under which the defence laboured 63. The Court reiterates that the extent of the counterbalancing factors necessary in order for a trial to be considered fair depends on the weight of the evidence in question. The more important that evidence, the more weight the counterbalancing factors will have to carry in order for the proceedings as a whole to be considered fair (see Schatschaschwili, cited above, § 116). Given the centrality of witness evidence, the Court considers that weighty counterbalancing factors are required to ensure fairness of proceedings (see Chernika, cited above, § 66). The Court has considered the following elements to be relevant in this context: the trial court’s approach to the evidence in question; the availability and strength of further incriminating evidence; and the procedural measures taken to compensate for the lack of opportunity to directly cross-examine the witnesses at the trial (see Schatschaschwili, § 145, and Ürek and Ürek, § 60, both cited above). 64. As regards whether the domestic courts had in place any procedural safeguards with a view to reigning in the negative impact of the admission of the evidence given by the absent witnesses, the Court notes that the Government’s arguments on this point were twofold: firstly, they argued that the applicant’s lawyer had failed to attend the commission hearings, which would have enabled him to examine the witnesses and, secondly, they laid emphasis on the trial court’s meticulous examination of the evidence given by the absent witnesses. The Court will address both of these points in turn. 65. The Court reiterates that the underlying reason calling for procedural safeguards vis-à-vis evidence given by absent witnesses under Article 6 § 3 (d) of the Convention is the need for a fair and proper assessment of the reliability of evidence given by such witnesses with a view to ensuring the overall fairness of the criminal proceedings from the standpoint of Article 6 § 1 of the Convention (see Al-Khawaja and Tahery, cited above, § 147). 66. As regards the first limb of the Government’s argument, the Court reiterates that it has already found that there was no good reason for the absence of the witnesses due to the trial court’s interpretation of Article 180 of the Code of Criminal Procedure. As a result, the Court will subject the proceedings to the most searching scrutiny (ibid., § 147). 67. In that connection, the Court further observes that the second paragraph of Article 180 provides that the examination of witnesses by the courts of their places of residence is only possible if it is difficult to bring them before the trial court. However, the trial court’s decision was silent on this crucial requirement. Similarly, while the fifth paragraph of the same provision stipulates that wherever possible the courts should have recourse to audiovisual means of taking statements from witnesses who reside outside their jurisdiction, the trial court does not appear to have considered that method either. Nor did it provide any reasons capable of showing that it had been prevented from doing so. Accordingly, the Court concludes that the trial court failed to explore alternative measures for obtaining evidence from the absent witnesses. 68. Be that as it may, in order to consider the first limb of the Government’s argument, the Court ought also to examine the preliminary question of whether the method the trial court opted for, namely issuing letters of request to the courts of the absent witnesses’ places of residence to take evidence from them, was such as to allow the defence to properly and fairly assess the credibility of the evidence. The Court is unable to answer that question in the affirmative in the present case for the following reasons. 69. Firstly, were the Court to accept the Government’s contention, the accused and/or defence lawyers would have to travel to different places with a view to attending the hearings where witnesses would be giving evidence in order to benefit from the right to examine witnesses. Such a course of action, requiring lawyers to attend potentially multiple hearings in distant cities would risk placing a disproportionate burden on the defence to an extent incompatible with the principle of equality of arms. In the present case, the applicant’s lawyer attended the hearing held before the Elbistan Assize Court with a view to examining Y.A. However, by that time that court had already examined Y.A. at an earlier hearing and the transcript of that hearing contained nothing to indicate that the applicant’s lawyer had been duly informed of it. During the second hearing attended by the applicant’s lawyer, Y.A. was not present as he was unwell, and the applicant’s lawyer could not cross-examine him (see paragraph 19). In any event, at no point did the Government argue that the applicant, who remained in pre-trial detention throughout the criminal proceedings, could attend the commission hearings before the different courts had he so wished. In fact, such a possibility appears to have been ruled out by Article 181 § 3 of the Code of Criminal Procedure, which limits a detainee’s right to attend a witness examination to situations where it is carried out by the court of his or her place of detention. The Court reiterates that in cases where physical identification plays a pivotal role, an applicant’s personal presence before a trial court together with that of witnesses takes on such an importance that the mere presence of his or her lawyer would not suffice to endorse the rights of defence, even when the lawyer is able to challenge the credibility of those witnesses (see Fikret Karahan v. Turkey, no. 53848/07, §§ 54-55, 16 March 2021). 70. Secondly, the trial court’s approach is capable of jeopardising the principle of immediacy, in particular when domestic courts have not done everything reasonably expected of them to secure the presence of a witness, in so far as this approach gives rise to a situation in which the trial court would not have the possibility to directly observe the demeanour and credibility of a certain witness giving evidence in the courts of his or her place of residence. The assessment of the trustworthiness of a witness and the accuracy of his or her statements are complex matters which usually cannot be achieved by a mere reading of his or her recorded words (see Daştan, cited above, § 33). Indeed, even if defence lawyers availed themselves of the opportunity to travel to and attend each commission hearing, the purpose sought by the cross-examination of witnesses or their identification of the accused may not be properly served given that the judges who would ultimately adjudicate upon the question of the accused’s guilt would not have the benefit of observing the demeanour of the absent witnesses and assessing their credibility without a good reason for their absence. On this point, the present case is distinguishable from other cases where the examination of witnesses in the absence of the accused, but in the presence of his or her lawyer by the trial courts – which, unlike the present case, had ultimately ruled upon the question of guilt – was found to have been compatible with the requirements of Articl 6 § 3 (d) of the Convention (see, as regards the absence of a direct confrontation during the trial between the accused and witnesses, Fikret Karahan, cited above, § 55; Šmajgl, cited above, § 64 and the cases cited therein; and compare Riahi v. Belgium, no. 65400/10, §§ 40-42, 14 June 2016 and the cases cited therein as regards the Court’s assessment of the existence of a direct confrontation between the applicants and witnesses that had taken place only during the pre ‑ trial investigation; and contrast Vronchenko v. Estonia, no. 59632/09, § 56, 18 July 2013 and the cases cited therein for the Court’s approach in cases concerning offences of sexual abuse). In the Court’s view, the above considerations are all the more significant given that what is at issue in the present case is the confrontation (or lack thereof) of the applicant with the absent witnesses, an issue which a fortiori calls for an oral examination of the latter. 71. Accordingly, the Court concludes that the hearing of witnesses by the courts of their places of residence is not capable of operating as a procedural safeguard in the absence of good reasons for the non-attendance of absent witnesses and when the trial court had recourse to it without considering alternative measures for obtaining evidence from the absent witnesses. To conclude otherwise would effectively mean that the underlying principle under Article 6 § 3 (d) of the Convention, namely that “before an accused can be convicted, all evidence against him or her normally has to be produced in his or her presence at a public hearing with a view to adversarial argument” would become the exception without any good reason for the non-attendance of witnesses at the trial or without any due consideration by the domestic courts for less stringent measures. In view of the foregoing considerations, the theoretical possibility for the applicant’s lawyer to attend the hearings during which A.T. and S.Y. gave evidence before the Istanbul and Muş Assize Courts did not constitute a sufficient counterbalancing factor. The Court therefore dismisses the Government’s argument on this point. 72. As regards the second limb of the Government’s argument, the Court observes that there is no indication in the case file that the national courts either approached the evidence given by the absent witnesses with any particular caution or that they were aware that it carried less weight owing to their absence from the trial (see Süleyman, cited above, § 89, with further references therein). 73. Moreover, the Court observes that the trial court concluded that the description given by A.T. in 1999 of the organisation member with the code name “Avreş” who had lines on his face perfectly matched that of the applicant, given that he also had lines on his face. Nevertheless, it is noteworthy that the trial court simply disregarded the fact that A.T. had also stated in 1999 that “Avreş” had been arrested. Given that the applicant was arrested some ten years after that incident, the clarification of that point was crucial and exemplified the need to hear the witnesses in person. Similarly, although the trial court appears to have addressed the applicant’s contention that there had been more than one “Avareş” in the PKK, it did not deal with the question of whether the person with the code name “Avreş” as stated by A.T. had been the same “Avareş” as the one indicated by the three other witnesses (F.K., S.Y. and Y.A.) or “Avareş-Tekoşin”, the codename allegedly used by the applicant. Those points were all the more significant given that the explanations of those witnesses were not based on an identification made on the basis of the applicant’s photographs (see, mutatis mutandis, Fernandes Pedroso v. Portugal, no. 59133/11, § 102, 12 June 2018). Given the above shortcomings, and reiterating that the assessment of the trustworthiness of a witness is a task which usually cannot be achieved by a mere reading of his or her recorded words (see Daştan, cited above, § 33), the Court takes the view that the examination carried out by the trial court was not, by and of itself, such as to counteract the adverse impact that the admission of the evidence given by the absent witnesses had on the fairness of the criminal proceedings against the applicant. 74. As regards the availability and strength of further incriminating evidence, the Court reiterates its above findings as regards the probative value of the evidence given by the absent witnesses for the applicant’s conviction (see paragraphs 59 and 61). Although the weight attached by the trial court to the evidence given by the absent witnesses required that it duly applied the procedural safeguards aimed at properly and fairly assessing the reliability and accuracy of such evidence, the Court discerns no such safeguards in the present case. Indeed, the applicant’s conviction rested on the untested evidence of the absent witnesses, whom the applicant had no real opportunity to examine either when they made their statements in the period between 1995 and 1999 or when they gave evidence during the criminal proceedings against him. 75. In view of the foregoing considerations, the Court concludes that the four witnesses’ non-attendance at trial, the lack of an in-person confrontation between them and the applicant without a good reason and the reliance placed upon their evidence by the trial court in convicting the applicant and sentencing him to life imprisonment without the necessary procedural safeguards, substantially affected the defence’s ability to test the truthfulness and reliability of their evidence and, in the circumstances of the present case, tainted the overall fairness of the proceedings against the applicant. 76. Accordingly, there has been a violation of Article 6 §§ 1 and 3 (d) of the Convention. APPLICATION OF ARTICLE 41 OF THE CONVENTION 77. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 78. The applicant did not submit any just satisfaction claims. Therefore, the Court makes no award under this head. 79. Notwithstanding that conclusion, the Court notes that Article 311 of the Code of Criminal Procedure allows for reopening of the domestic proceedings in the event that the Court finds a violation of the Convention (see Fikret Karahan, cited above, § 64, and Daştan, cited above, § 44). | The Court held that there had been a violation of Article 6 §§ 1 (right to a fair trial) and 3 (d) (right to obtain attendance and examination of witnesses) of the Convention, finding that the absence of the four witnesses from the trial, the lack of a confrontation between them and the applicant, and the use by the court of their evidence as the cornerstone of his conviction and life sentence without the necessary procedural safeguards, had substantially hindered the defence in testing the reliability of their evidence and had, in the circumstances of the present case, tainted the overall fairness of the proceedings. The Court noted, in particular, that letters of request and examining witnesses in other jurisdictions could not be considered an adequate method of ensuring a fair trial in the circumstances of the present case. Firstly, it meant that domestic courts could simply refrain from examining whether there were good reasons for the non-attendance of witnesses at trial. Secondly, it effectively meant that the accused and/or defence lawyers would have to travel to different places with a view to attending the hearings where witnesses would be giving evidence in order to benefit from the right to examine them, placing a disproportionate burden on the defence. Thirdly, the relevant domestic law appeared to exclude a detainee’s attendance at a hearing outside of the jurisdiction in which he or she was detained. Lastly, the approach was capable of jeopardising the principle of immediacy, as the trial court would not have the possibility to directly observe the demeanour and credibility of particular witnesses. |
304 | Prevention of terrorism | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Terrorism Act 2000 (“TACT”) (as in force at the relevant time) 39. Section 40(1)(b) of TACT defines a “terrorist” so as to include a person who has been concerned in the commission, preparation or instigation of acts of terrorism. Section 1 of TACT defines “terrorism” as follows: “(1) In this Act “terrorism” means the use or threat of action where— (a) the action falls within subsection (2), (b) the use or threat is designed to influence the government or an international governmental organisation or to intimidate the public or a section of the public, and (c) the use or threat is made for the purpose of advancing a political, religious, racial or ideological cause. (2) Action falls within this subsection if it— (a) involves serious violence against a person, (b) involves serious damage to property, (c) endangers a person ’ s life, other than that of the person committing the action, (d) creates a serious risk to the health or safety of the public or a section of the public, or (e) is designed seriously to interfere with or seriously to disrupt an electronic system. (3) The use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (1)(b) is satisfied. (4) In this section— (a) “action” includes action outside the United Kingdom, (b) a reference to any person or to property is a reference to any person, or to property, wherever situated, (c) a reference to the public includes a reference to the public of a country other than the United Kingdom, and (d) “the government” means the government of the United Kingdom, of a Part of the United Kingdom or of a country other than the United Kingdom. (5) In this Act a reference to action taken for the purposes of terrorism includes a reference to action taken for the benefit of a proscribed organisation.” 40. Schedule 7 of TACT, which is headed “Port and Border Controls”, provided as relevant: “Power to stop, question and detain 2.—(1) An examining officer may question a person to whom this paragraph applies for the purpose of determining whether he appears to be a person falling within section 40(1)(b). (2) This paragraph applies to a person if— (a) he is at a port or in the border area, and (b) the examining officer believes that the person ’ s presence at the port or in the area is connected with his entering or leaving Great Britain or Northern Ireland. (3) This paragraph also applies to a person on a ship or aircraft which has arrived in Great Britain or Northern Ireland. (4) An examining officer may exercise his powers under this paragraph whether or not he has grounds for suspecting that a person falls within section 40(1)(b). ... ... ... 6.—(1) For the purposes of exercising a power under paragraph 2 or 3 an examining officer may— (a) stop a person or vehicle; (b) detain a person. ... ... ... (3) Where a person is detained under this paragraph the provisions of Part I of Schedule 8 (treatment) shall apply. (4) A person detained under this paragraph shall (unless detained under any other power) be released not later than the end of the period of nine hours beginning with the time when his examination begins. ... ... ... 8(1) An examining officer who questions a person under paragraph 2 may, for the purpose of determining whether he falls within section 40(1)(b)— (a) search the person; (b) search anything which he has with him, or which belongs to him, and which is on a ship or aircraft; (c) search anything which he has with him, or which belongs to him, and which the examining officer reasonably believes has been, or is about to be, on a ship or aircraft; (d) search a ship or aircraft for anything falling within paragraph (b). ... ... ... (3) A search of a person under this paragraph must be carried out by someone of the same sex. ... ... ... Offences 18.—(1) A person commits an offence if he— (a) wilfully fails to comply with a duty imposed under or by virtue of this Schedule, (b) wilfully contravenes a prohibition imposed under or by virtue of this Schedule, or (c) wilfully obstructs, or seeks to frustrate, a search or examination under or by virtue of this Schedule. (2) A person guilty of an offence under this paragraph shall be liable on summary conviction to— (a) imprisonment for a term not exceeding three months, (b) a fine not exceeding level 4 on the standard scale, or (c) both .” 41. Pursuant to Schedule 8 a person detained under Schedule 7 acquires rights which he or she did not have prior to detention (for example, to have a named person informed, and to consult a solicitor) but also obligations (for example, to give fingerprints, non-intimate and intimate DNA samples). B. Home Office (2009) Examining Officers under the Terrorism Act 2000 Code of Practice (“the Code”) 42. The Code, which is issued by the Secretary of State for the Home Department pursuant to paragraph 6(1) of Schedule 14 of TACT and is a public document admissible in evidence in criminal and civil proceedings, contains detailed provisions as to the exercise by examining officers of their functions under that legislation. It provides, as relevant: “9. The purpose of questioning and associated powers is to determine whether a person appears to be someone who is or has been concerned in the commission, preparation or instigation of acts of terrorism. The powers, which are additional to the powers of arrest under the Act, should not be used for any other purpose. 10. An examining officer may question a person whether or not he suspects that the person is or has been concerned in the commission, preparation or instigation of terrorism and may stop that person for the purposes of determining whether this appears to be the case. Examining officers should therefore make every reasonable effort to exercise the powers in such a way as to minimise causing embarrassment or offence to a person who is being questioned. Notes for guidance on paragraphs 9 and 10 [in bold in the original] The powers to stop, question, detain and search persons under Schedule 7 do not require an examining officer to have any grounds for suspicion against any individual prior to the exercise of the powers. Therefore examining officers must take into account that many people selected for examination using Schedule 7 powers will be entirely innocent of any unlawful activity. The powers must be used proportionately, reasonably, with respect and without unlawful discrimination. All persons being stopped and questioned by examining officers must be treated in a respectful and courteous manner. Examining officers must take particular care to ensure that the selection of persons for examination is not solely based on their perceived ethnic background or religion. The powers must be exercised in a manner that does not unfairly discriminate against anyone on the grounds of age, race, colour, religion, creed, gender or sexual orientation. To do so would be unlawful. It is the case that it will not always be possible for an examining officer working at a port to know the identity, provenance or destination of a passenger until they have stopped and questioned them. Although the exercise of Schedule 7 powers is not based on an examining officer having any suspicion against any individual, the powers should not be exercised arbitrarily. An examining officer ’ s decision to exercise their Schedule 7 powers at ports must be based on the threat posed by the various terrorist groups active in and outside the United Kingdom. When deciding whether to exercise their Schedule 7 powers, examining officers should base their decisions on a number of considerations, including factors such as: Selections for examinations should be based on informed considerations such as those outlined above and must be in connection with the threat posed by the various terrorist groups active in and outside the United Kingdom. A person ’ s perceived ethnic background or religion must not be used alone or in combination with each other as the sole reason for selecting the person for examination. Schedule 7 powers are to be used solely for the purpose of ascertaining if the person examined is or has been concerned in the commission, preparation or instigation of acts of terrorism. The powers must not be used to stop and question persons for any other purpose. An examination must cease and the examinee must be informed that it has ended once it has been ascertained that the person examined does not appear to be or to have been concerned in the commission, preparation or instigation of acts of terrorism. Unless the examining officer arrests the person using powers under the Act, a person being examined under Schedule 7 need not be cautioned. 11. The examining officer should explain to the person concerned either verbally or in writing that they are being examined under Schedule 7 of the Terrorism Act 2000 and that the officer has the power to detain that person should they refuse to co-operate and insist on leaving. The examining officer should keep the length of the examination to the minimum that is practicable. An examination begins after a person has been stopped and screening questions have been asked. Once an examination lasts for one hour, an explanatory notice of examination, a TACT 1 form ( ... ), must be served by the examining officer on the person. The contents of the TACT 1 form should be explained to the person by the examining officer. Where a person ’ s examination is protracted or where it is thought likely to be protracted, the examining officer should make arrangements to ensure that the person has the opportunity to have refreshments at regular intervals. ... ... ... Records 14. Records of all examinations should be kept locally at a port, border area or police station in the event of a complaint or query but in addition a record of all exams over an hour should be held centrally for statistical purposes. The record should include the name of the person examined; the total duration the examination from the start until completion; whether the person was detained and if so when detention began and ended. 15. Records of examination that last under an hour or in the case of a child of any duration should be kept at the port, border area or at a police station for reference purposes in the event of a complaint or query. Records of examination that last over an hour, however, should be kept centrally for statistical purposes. ... ... ... Searches 28. An examining officer may search a person who is being questioned for the purpose set out in paragraph 9 above, and their belongings, including baggage. He may also under paragraph 10 authorise another person to carry out a search on his behalf. As under paragraph 10 above every reasonable effort should be made to reduce to a minimum the potential embarrassment or offence that may be caused to a person being searched. ... 29. A personal search should only be carried out by someone of the same sex. ” C. 2009 National Policing Improvement (“NPIA”) Practice Advice (“the Practice Advice”) 43. The Foreword to the Practice Advice provides: “Special Branch ports officers carry a significant responsibility as part of the police contribution to ensuring National Security. It is vital that they are equipped with powers that enable them to carry out their role effectively and efficiently. Schedule 7 ... provides these officers with unique powers to examine people who pass through the United Kingdom ’ s borders. It is essential that they are applied professionally so that the police maintain the confidence of all sections of the public. Any misuse of these powers could have a far-reaching negative impact on police community relations and hinder progress made in support of the Government ’ s counter-terrorism strategy.” D. The report of the Independent Reviewer of Terrorism Legislation on the operation of the Terrorism Acts in 2011 44. The report provided the following figures concerning the frequency of the exercise of Schedule 7 powers: “In the year to 31 March 2011, over the UK as a whole: (a) There was a total of 85,423 Schedule 7 examinations, 20% down on 2009/10. (b) 73,909 of those examinations were on people, and 11,514 on unaccompanied freight. (c) 2,291 people (3% of those examined - a similar percentage to 2009/10) were kept for over an hour. (d) 915 people were detained after examination (1% of those examined, up from 486 in 2009/10). (e) 769 people had biometric samples taken. (f) There were 31 counter-terrorism or national security-related arrests. However 25 of those were in a single force area, reflecting that force ’ s policy (since amended) as regards the action they take for those withholding or giving of false information during an examination. (g) 101 cash seizures by the police thought to relate to counter-terrorism were made, amounting in total to £844,709, mostly at airports. These figures have to be set against the numbers of passengers travelling through UK airports (213 million), UK seaports (22 million) and UK international rail ports (9.5 million) during the year. In total, only 0.03% of passengers were examined under Schedule 7 in 2010/11.” 45. With regard to the ethnic origin of the persons stopped, the report summarised the data in tabular form: 2010/11 White Black Asian Other Mixed or not stated Examined < 1 hour 46% 8% 26% 16% 4% Examined > 1 hour 14% 15% 45% 20% 6% Detained 8% 21% 45% 21% 5% Biometrics 7% 21% 46% 20% 6% 46. The report continued: “No ethnicity data are collected for port travellers generally. It may well be that the proportion of ethnic minorities among those using UK ports and airports for travel is higher than the proportion in the UK population as a whole. It is most unlikely however that white people are in a minority among travellers. Detentions (plainly) and examinations (almost certainly) are thus imposed on members of minority ethnic communities – particularly those of Asian and other (including North African) ethnicity – to a greater extent than their presence in the travelling population would seem to warrant. That fact alone does not mean that examinations and detentions are misdirected. As I argued in my last annual report (paras 9.14-9.21), Schedule 7 should not be used (as section 44 stop and search was from time to time used) in order to produce a racial balance in the statistics: that would be the antithesis of intelligence-led policing. The proportionate application of Schedule 7 is achieved by matching its application to the terrorist threat, rather than to the population as a whole. There is however no room for complacency. The ethnic breakdown of the terrorist threat is hard to pin down: but ... [e]ven in Great Britain ... white people constitute approximately a quarter of those arrested and charged with terrorist offences – a proportion that would no doubt rise considerably if Northern Ireland data were included. ... The ethnicity figures provide, in themselves, no basis for criticism of the police. They do however underline the need for vigilance, particularly when some minority communities are understandably sensitive about the application of Schedule 7. It is important for all involved with the application of Schedule 7 to remember that: (a) perceived ethnic background or religion should not be used, alone or in combination with each other, as the sole reason for selecting a person for examination; (b) UK terrorists are of all colours: a substantial proportion of them (even outside Northern Ireland) are white; and that (c) apparently innocuous decisions (for example, to check the plane from Pakistan rather than the plane from Canada) may reflect unconscious racial bias.” 47. Although the report indicated that certain groups (most notably Muslims) felt that they were being singled out, between 1 July 2011 and 23 May 2012 only twenty complaints had been received. 48. In concluding that the utility of Schedule 7 powers was not in doubt, the report noted: “Schedule 7 examinations have certainly been instrumental, first of all, in securing evidence which assists in the conviction of terrorists. That evidence does not take the form of answers given in interview (which because of the compulsion to answer would almost certainly be inadmissible in any criminal trial) but rather consists of physical possessions or the contents of mobile phones, laptops and pen drives. It is fair to say that the majority of examinations which have led to convictions were intelligence-led rather than based simply on risk factors, intuition or the copper ’ s nose. Indeed, despite having made the necessary enquiries, I have not been able to identify from the police any case of a Schedule 7 examination leading directly to arrest followed by conviction in which the initial stop was not prompted by intelligence of some kind. ... Secondly, Schedule 7 examinations have been useful in yielding intelligence about the terrorist threat. Sometimes words spoken in interview, though not themselves admissible as evidence, may start a train of enquiry that leads to a prosecution. Of great importance, however, is intelligence of a more indirect kind – which may come from intelligence-led stops or from stops on the basis of risk factors. Schedule 7 examinations are perhaps most prized by the police and security services for their ability to contribute to a rich picture of the terrorist threat to the United Kingdom and UK interests abroad. ... Thirdly, Schedule 7 examinations may assist disruption or deterrence. Young, nervous or peripheral members of terrorist networks can sometimes be dissuaded from plans e.g. to travel abroad for training by the realisation – communicated by a port stop – that the police have an idea of who they are and what they are about. ... Finally, a Schedule 7 examination – once it has been completed, and this has been made clear to the person examined – may serve as an opportunity for the identification of those who may agree to be recruited as informants.” E. The report of the Independent Reviewer of Terrorism Legislation on the operation of the Terrorism Acts in 2012 49. In this report the Independent Reviewer specifically addressed whether Schedule 7 should include a requirement of “reasonable suspicion”. In particular, he sought to explore with police and intelligence services the extent to which stops which were not intelligence-led or otherwise based on suspicion were useful. He observed that general arguments for a no ‑ suspicion power included the following: “Were reasonable suspicion (or even just subjective suspicion) to be required for all stops: (a) The substantial deterrent threat of Schedule 7 in its current form could be avoided altogether by using “clean skins” to transport the tools of the terrorist ’ s trade. (b) Anybody who was stopped would know that the police had evidence on which to suspect them: the mere fact of a stop could thus alert the traveller to the existence of surveillance, whether human or technical, with consequences that could include the ending of effective surveillance and the endangering of a human source. (c) The authorities would be unable to stop and question the travelling companion(s) of a person whom they suspect of involvement in terrorism: the mere fact of travelling with a suspected person will not be enough to constitute a reasonable suspicion of involvement in terrorism.” 50. The Independent Reviewer was briefed by MI5 and by the police on a number of no-suspicion stops in recent months which had brought significant benefits in terms of disrupting potential terrorists. These included both untargeted and targeted examinations, since there could be intelligence on somebody sufficient to merit a stop without the threshold of reasonable suspicion being reached. While he accepted that a number of such stops had been “of real value in protecting national security”, he recognised that that did not automatically make them proportionate. He considered this was ultimately a matter for Parliament, but noted that any requirement of suspicion would “reduce the potential efficacy of Schedule 7. Equally, however, they would give a measure of protection to persons who may currently be selected for these attentions without even being suspected of any crime.” 51. The Independent Reviewer also addressed the compulsion to answer questions under Schedule 7. In this regard, he indicated that: “Compulsion to answer questions under Schedule 7 is of the essence of the power, its utility beyond question when it comes not only to identifying people as terrorists but to gathering intelligence – an important by-product of the Schedule 7 examination, albeit one that can never serve as the prime motive for a stop. Such a strong power requires strong safeguards on the use to which answers can be put. At the least, it is essential that answers are not used in proceedings where they could incriminate the person who gave them. I believe it to be generally accepted that answers given under compulsion in Schedule 7 interviews could never be used in a criminal trial ... ” F. The Anti-Social Behaviour, Crime and Policing Act 2014 52. The Anti-Social Behaviour, Crime and Policing Act 2014 (“the 2014 Act”) made several changes to the Schedule 7 powers. Most notably, it required examining officers to take a person into detention if they wished to examine him or her for longer than one hour; it reduced the maximum period of detention from nine hours to six hours; it introduced a requirement for the periodic review of detention by a review officer; and it required that the questioning of an examinee should not commence until after the arrival of a requested solicitor, unless postponing questioning would be likely to prejudice the determination of the relevant matters. 53. The 2014 Act further required that examining officers should be designated for this purpose by the Secretary of State and a Code of Practice should be issued which provided for the training to be undertaken by them. 54. A new version of the Code of Practice was promulgated in July 2014 to reflect those amendments and also the judgment of the Supreme Court in the applicant ’ s case. In particular, it provided that the Schedule 7 powers could only be used by police officers who had been accredited by their chief officer as having met a national standard in the use of the powers; and it confirmed that the exercise of the powers should not be arbitrary. 55. It further provided that detained persons were entitled to consult a solicitor in private at any time, and that the examining officer had to postpone questioning until the person had consulted a solicitor in private, unless the examining officer reasonably believed that postponing questioning would be likely to prejudice the purpose of the examination. G. Subsequent annual reports of the Independent Reviewer of Terrorism Legislation 1. 2013 56. In his review of the operation of the terrorism legislation in 2013, the Independent Reviewer made some remarks about the apparent “considerable ‘ disproportionality ’ ” between the ethnic classification of those examined and detained under Schedule 7 and the ethnic classification of the port-using (or airport-using) public. In particular, he noted that the Schedule 7 power was not intended to be exercised randomly but rather to gain information about persons concerned in the commission, preparation or instigation of acts of terrorism. As terrorists were not, at any one moment in time, evenly distributed across the various ethnic groups, if the power was being skilfully used, one would expect its exercise to be ethnically “proportionate” not to the United Kingdom population, nor even to the airport-using population, but rather to the terrorist population that travels through United Kingdom ports. In conclusion he stated that he had no reason to believe that Schedule 7 powers were being exercised in a racially discriminatory manner. 57. Although the Independent Reviewer welcomed the amendments being introduced by the Anti-Social Behaviour, Crime and Policing Act 2014, he identified three issues he had previously addressed which remained outstanding: “ a) the fact that no suspicion is required for the exercise of most Schedule 7 powers, including the power to detain and to download the contents of a phone or laptop; b) the fact that answers given under compulsion are not expressly rendered inadmissible in criminal proceedings; and c) the need for clear and proportionate rules governing the data taken from electronic devices. ” 58. He recommended, inter alia, that detention should be permitted only when a senior officer is satisfied that there are grounds for suspecting that the person appears to be a person falling within section 40(1)(b) and that detention is necessary in order to assist in determining whether he is such a person; that on periodic review, a detention may be extended only when a senior officer remains satisfied that there continue to be grounds for suspecting that the person appears to be a person falling within section 40(1)(b), and that detention continues to be necessary in order to assist in determining whether he is such a person; and that a statutory bar should be introduced to the introduction of Schedule 7 admissions in a subsequent criminal trial. 59. Finally, he expressed his belief that his recommendations would improve fairness and accountability without reducing the efficacy of the Schedule 7 powers or exposing the public to additional risk from terrorism. He observed that his recommendations had been endorsed by the Joint Committee on Human rights, which fully agreed with them, save as to the thresholds for detention and for copying data, which it continued to advise should require reasonable suspicion; and the Home Affairs Select Committee, which expressed the view that the introduction of a suspicion test for the ancillary powers, the use of answers given under compulsion in a criminal court and the treatment of legally privileged material, excluded material and special procedure material should be subject to further review. 2. 2015 60. In his review of the operation of the terrorism legislation in 2015, the Independent Reviewer repeated the following recommendations: “(a) that a suspicion threshold should be applied to detention and to the copying of data from personal electronic devices; (b) that safeguards should be provided in respect of legally privileged material, excluded material and special procedure material; (c) that safeguards should be applied to private electronic data gathered under Schedule 7; and (d) that there should be a statutory bar to the introduction of Schedule 7 admissions in a subsequent criminal trial.” 3. 2016 and 201 7 61. Finally, in his review of the operation of the terrorism legislation in 201 7, the Independent Reviewer indicated that while there had been a significant decline in the total number of examinations in recent years, there had been an increase in the number of “resultant detentions”. According to the Independent Reviewer, this was not a particularly worrying pattern, and was likely due to better capture of passenger manifest data across the United Kingdom, and better use of targeting techniques. H. The Counter-Terrorism and Border Security Bill 62. The purpose of the Bill, which was introduced on 5 June 2018, is to “make provision in relation to terrorism; to make provision enabling persons at ports and borders to be questioned for national security and other related purposes”. 63. The Bill contains a bar on the admissibility in court of answers to questions when an individual is stopped at a port or border under Schedule 7 of TACT. 64. Schedule 3 of the Bill further contains a power – modelled on Schedule 7 of TACT – for “examining officers” to question any person who is in a port in the United Kingdom or in the Northern Ireland border area for the purpose of determining whether the person appears to be, or has been, engaged in “hostile activity”. As with Schedule 7, the power to examine a person can be exercised whether or not there are grounds for suspecting that a person is engaged in hostile activity. I. Relevant case-law 1. R (David Miranda) v. Secretary of State for the Home Department and Commissioner of Police of the Metropolis [2016] EWCA Civ 6 65. Mr Miranda is the spouse of a journalist who had received encrypted material from Edward Snowden. The data, which contained United Kingdom intelligence material, had been stolen from the National Security Agency. Mr Miranda was detained for nine hours by officers of the Metropolitan Police at Heathrow Airport on 18 August 2013, purportedly under paragraph 2(1) of Schedule 7 of TACT. He was questioned and items in his possession, notably encrypted storage devices, were taken from him. The Security Service had asked the police to make the stop, with the principal objective of mitigating the risk to national security that the material in Mr Miranda ’ s possession might pose. 66. In judicial review proceedings Mr Miranda claimed that the use of the Schedule 7 power against him was unlawful because (i) the power was exercised for a purpose not permitted by the statute; and (ii) its use constituted a disproportionate interference with his rights under Articles 5, 8 and 10 of the Convention. He also claimed that the use of the power was incompatible with the rights guaranteed by Article 10 of the Convention in relation to journalistic material. 67. The Court of Appeal accepted that the police exercised the power for its own purpose of determining whether Mr Miranda appeared to be a person falling within section 40(1)(b) of TACT. The fact that the exercise of the Schedule 7 power also promoted the Security Service ’ s different (but overlapping) purpose did not mean that the power was not exercised for the Schedule 7 purpose. In this regard, the police had clearly recognised that they could not act as a conduit for the furtherance of the Security Service ’ s purposes, and had had to be persuaded that the conditions for a lawful Schedule 7 stop had been met before they agreed to proceed. Moreover, as Parliament had set the bar for the exercise of the Schedule 7 power at quite a low level, the power having been given to provide an opportunity for the ascertainment of a possibility, the court accepted that the power was exercised for a lawful purpose. In assessing proportionality, the court accepted that the Schedule 7 stop was an interference with press freedom, but held that the compelling national security interests clearly outweighed Mr Miranda ’ s Article 10 rights on the facts of the case. 68. However, with regard to the compatibility of the Schedule 7 powers with Article 10 of the Convention, the court found that the constraints on the exercise of the powers did not afford effective protection of journalists ’ Article 10 rights. The court ’ s central concern was that disclosure of journalistic material (whether or not it involved the identification of a journalist ’ s source) undermined the confidentiality that was inherent in such material and which was necessary to avoid the chilling effect of disclosure and to protect Article 10 rights. If journalists and their sources could have no expectation of confidentiality, they might decide against providing information on sensitive matters of public interest. Consequently, it was of little or no relevance that the Schedule 7 powers could only be exercised in a confined geographical area or that a person could not be detained for longer than nine hours. Similarly, while the fact that the powers had to be exercised rationally, proportionately and in good faith provided a degree of protection, the only safeguard against the powers not being so exercised was the possibility of judicial review proceedings. However, while judicial review might be an adequate safeguard in the context of Articles 5 and 8, it would provide little protection against the damage done if journalistic material was disclosed and used in circumstances where this should not happen. 2. R (CC) v. Commissioner of Police of the Metropolis and another [2012] 1 WLR 1913 and R (on the application of Elostra) v. Commissioner of Police of the Metropolis [2014] 1 WLR 239 69. In R(CC) the High Court upheld a challenge by an individual against the use of the Schedule 7 power on the basis that the examining officers were not in fact exercising it for the purpose of determining whether he appeared to be a terrorist. The claimant was a British national who had been arrested in Somaliland and deported to the United Kingdom. In anticipation of his return, a control order was made against him. The High Court found that the Schedule 7 powers were exercised on his arrival for the purpose of getting information – untainted by any torture allegations – which might confirm the propriety of the making of the control order. According to the court, this had nothing to do with determining whether he appeared to be a terrorist in any particular way and as a consequence the power had not been used lawfully. However, in reaching this conclusion the judge remarked: “I have no doubt that this is a very rare case and that this decision will not damage the efficacy of the powers. They are properly given a wide construction for the reasons I have set out but cannot extend to the facts of this case.” 70. In R(Elostra) the High Court held that an examination under Schedule 7 which was conducted without adherence to the proper safeguards was unlawful. More particularly, it held that a person who was detained under Schedule 7 – at a police station or elsewhere – was, by virtue of the Code of Practice, entitled to insist on legal advice before answering any questions. 3. R. v. Gul [2013] UKSC 64 71. The principal issue in this appeal was the definition of “terrorism” in section 1 of TACT; more precisely, whether it included military attacks by non-State armed groups against national or international armed forces in a non-international armed conflict. The Supreme Court held that there was no basis for reading the natural, very wide, meaning of section 1 of TACT restrictively. The definition had clearly been drafted in deliberately wide terms so as to take account of the various and possibly unpredictable forms that terrorism might take, and the changes which may occur in the diplomatic and political spheres. Moreover, the United Kingdom ’ s international obligations could not require it to define “terrorism” more narrowly, since there was no accepted definition of “terrorism” in international law. 72. The court noted, however, that the very wide definition of “terrorism” gave rise to certain concerns. While the case did not concern the use of Schedule 7 powers, it observed that: “63. The second general point is that the wide definition of “terrorism” does not only give rise to concerns in relation to the very broad prosecutorial discretion bestowed by the 2000 and 2006 Acts, as discussed in paras 36-37 above. The two Acts also grant substantial intrusive powers to the police and to immigration officers, including stop and search, which depend upon what appears to be a very broad discretion on their part. While the need to bestow wide, even intrusive, powers on the police and other officers in connection with terrorism is understandable, the fact that the powers are so unrestricted and the definition of ‘ terrorism ’ is so wide means that such powers are probably of even more concern than the prosecutorial powers to which the Acts give rise. 64. Thus, under Schedule 7 to the 2000 Act, the power to stop, question and detain in ports and at borders is left to the examining officer. The power is not subject to any controls. Indeed, the officer is not even required to have grounds for suspecting that the person concerned falls within section 40(1) of the 2000 Act (i.e. that he has ‘ committed an offence ’, or he ‘ is or has been concerned in the commission, preparation or instigation of acts of terrorism ’ ), or even that any offence has been or may be committed, before commencing an examination to see whether the person falls within that subsection. On this appeal, we are not, of course, directly concerned with that issue in this case. But detention of the kind provided for in the Schedule represents the possibility of serious invasions of personal liberty.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 73. The applicant complained that the exercise of Schedule 7 powers breached her rights under Article 8 of the Convention, which reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 74. The Government contested that argument. A. Admissibility 75. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. Whether there was an interference with the applicant ’ s rights under Article 8 of the Convention 76. The Government accepted that, taken as a whole, the applicant ’ s examination pursuant to Schedule 7 of TACT gave rise to an interference with the right guaranteed to her under Article 8 of the Convention. In the present case, in addition to being stopped and questioned, the applicant and her luggage were searched. In Gillan and Quinton v. the United Kingdom, no. 4158/05, § 63, ECHR 2010 (extracts) the Court held that the use of “coercive powers” to require an individual to submit to a “detailed search of his person, his clothing and his personal belongings” amounted to a clear interference with the right to respect for private life. While the Court expressly recognised the potential distinction between the “stop and search powers” under section 44 of TACT and “the search to which passengers uncomplainingly submit at airports or at the entrance of a public building” (see Gillan and Quinton, cited above, § 64), Schedule 7 powers were clearly wider that the immigration powers to which travellers might reasonably expect to be subjected. In view both of this fact, and of the Government ’ s concession, the Court would accept that there was an interference with the applicant ’ s rights under Article 8 of the Convention. 2. Whether that interference was “in accordance with the law” (a) The parties ’ submissions ( i ) The applicant 77. The applicant submitted that the Schedule 7 powers were insufficiently circumscribed and contained inadequate safeguards to be “in accordance with the law ”. In the year of her examination, more than 68,000 people were stopped pursuant to Schedule 7. The absence of any requirement for objective grounds for suspicion, or even subjective suspicion, meant that an officer could exercise powers based on no more than a hunch, which in turn gave considerable scope for extraneous factors and motives – such as biases and ingrained stereotypes – to influence how an officer selected individuals to stop and question. 78. More particularly, the applicant contended that the powers under the Schedule 7 regime were more intrusive than the stop and search powers under sections 44-45 of TACT, which the Court had held not to be “in accordance with the law” in Gillan and Quinton. First of all, section 44 required a senior officer to give authorisations if he thought it “expedient for the prevention of acts of terrorism”. In contrast, Schedule 7 powers applied at all times at all ports. Secondly, while powers under sections 44 and 45 were directed at the narrow purpose of “searching for articles of a kind that could be used in connection with terrorism”, Schedule 7 powers had a much broader purpose and permitted a far wider investigation into an individual ’ s activities, beliefs and movements. Thirdly, section 45 only permitted an officer to search a person ’ s outer clothing and possessions, and detention was only permitted to the extent necessary to carry out that limited search. In contrast, a Schedule 7 suspicion-less examination could take place at a police station, could permit detailed and intrusive searches, and at the time the applicant was stopped, detention could last for up to nine hours. Fourthly, section 45 contained no power to interrogate, whereas Schedule 7 permitted a lengthy interrogation that a person was required by law to answer. Finally, section 45 permitted an officer to retain items found during the search of a person only if the officer reasonably suspected that the item was intended to be used in connection with terrorism. Schedule 7, on the other hand, permitted any item to be retained for seven days for examination, regardless of whether or not such suspicion existed. 79. According to the applicant, there were also important similarities between the section 44 and Schedule 7 powers: they both fell within the same framework of counter-terrorism legislation under TACT; they both involve intrusive measures which might be used without subjective grounds for suspicion; the use of both sets of powers had a significantly disproportionate impact on persons of non-white ethnic origin; and the safeguards relied on by the Government were similar. 80. In this regard, the applicant acknowledged that some safeguards existed, notably those identified by Lord Hughes in the Supreme Court. However, she argued that they were insufficient to meet the requirement of legality. To begin with, given the large number of people passing through United Kingdom ports every day, the fact that the Schedule 7 powers were restricted to travellers at ports did not significantly reduce their impact. Moreover, Schedule 7 powers could not be equated with immigration powers, to which travellers might reasonably expect to be subjected. They were based at ports because they were “choke points” and not because they had any specific connection to a person ’ s travel. 81. Furthermore, restriction to the statutory purpose, restriction to specially trained and accredited officers, and restrictions on the type of search and duration of questioning provided negligible safeguards which did not cure the risk of arbitrariness in the exercise of a broadly defined, suspicion-less power. This was especially so given that the Code in force at the time of the applicant ’ s examination did not tell examining officers how to determine whether the exercise of Schedule 7 powers was proportionate, nor did it require them to keep to a minimum all interferences with fundamental rights. Although individuals were entitled to consult a solicitor, this offered no protection against the risk of arbitrary selection in the first place, and in any case officers were permitted to interrogate a person in the absence of a solicitor (as happened in this case). 82. In addition, the explanatory notice given to those questioned was generic; examining officers were not required to explain the reasons why a particular individual was selected for examination under Schedule 7. There was also no requirement for officers to record the reason why a particular individual was selected for examination, and since the lawful exercise of the powers was not conditional on any suspicion (reasonable or otherwise) the scope for using judicial review proceedings to challenge a particular Schedule 7 examination was extremely limited. Finally, the Independent Reviewer only carried out a post-hoc review of a small number of Schedule 7 stops, since his capacities did not stretch to a thorough port ‑ by ‑ port monitoring, and the Government was not obliged to give effect to any changes he proposed. ( ii ) The Government 83. The Government contended that the exercise of a power on a “no suspicion” basis could be “in accordance with the law”. In such a case, the relevant factors to be considered were the field covered by the measure in issue (being relevant to the level of precision required); and the relevant law together with how the system worked in practice. 84. As to the field covered by the measure, the Government stated that it was focussed on entry and exit points to the United Kingdom. As these points were the first line of defence against the entry and exit of terrorists, they provided a unique opportunity to target checks where they were likely to be the most effective. 85. Regarding the relevant law, the Government argued that there were sufficient effective safeguards in the manner of its operation to meet the requirements of legality. In particular, they drew attention to the factors identified by Lord Hughes and Lord Hodges, which were adopted by Lord Neuberger and Lord Dyson, namely: the restriction to those passing into and out of the country; the restriction to the statutory purpose; the restriction to specially trained and accredited police officers; the restrictions on the duration of questioning; the restrictions on the type of search; the requirement to give explanatory notice to those questioned, including the procedure for complaint; the requirement to permit consultation with a solicitor and the notification of a third party; the requirement for records to be kept; the availability of judicial review; and the continuous supervision of the Independent Reviewer. 86. Moreover, there was no evidence that the powers had been used in a racially discriminatory fashion, and in fact such a use was expressly prohibited by the Code of Practice. (b ) The Court ’ s assessment ( i ) General principles 87. The words “in accordance with the law” require the impugned measure both to have some basis in domestic law and to be compatible with the rule of law, which is expressly mentioned in the preamble to the Convention and inherent in the object and purpose of Article 8. The law must therefore be adequately accessible and foreseeable, that is, formulated with sufficient precision to enable the individual – if need be with appropriate advice – to regulate his conduct ( S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, §§ 95 and 96, ECHR 2008). 88. For domestic law to meet these requirements it must afford a measure of legal protection against arbitrary interferences by public authorities with the rights safeguarded by the Convention. In matters affecting fundamental rights it would be contrary to the rule of law, one of the basic principles of a democratic society enshrined in the Convention, for a legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate with sufficient clarity the scope of any such discretion conferred on the competent authorities and the manner of its exercise ( Rotaru v. Romania [GC], no. 28341/95, § 55, ECHR 2000-V; Hasan and Chaush v. Bulgaria [GC], no. 30985/96, § 4, ECHR 2000-XI; Maestri v. Italy [GC], no. 39748/98, § 30, ECHR 2004 ‑ I; see also, amongst other examples, Gillan and Quinton v. the United Kingdom, no. 4158/05, § 77, ECHR 2010 (extracts)). The level of precision required of domestic legislation – which cannot in any case provide for every eventuality – depends to a considerable degree on the content of the instrument in question, the field it is designed to cover and the number and status of those to whom it is addressed (see, for example, Hashman and Harrup v. the United Kingdom [GC], no. 25594/94, § 31, ECHR 1999 ‑ VIII; S. and Marper, cited above, § 96; Gillan and Quinton, cited above, § 77; and Ivashchenko v. Russia, no. 61064/10, § 73, 13 February 2018 ). ( ii ) Application of those principles to the case at hand 89. The Court notes that the power in question has a legal basis in domestic law, namely Schedule 7 of TACT and the accompanying Code of Practice. In view of the applicant ’ s complaint, the principal question for the Court to address in the present case is whether, at the time the applicant was stopped at East Midlands airport, the safeguards provided by domestic law sufficiently curtailed the powers so as to offer her adequate protection against arbitrary interference with her right to respect for her private life. In making this assessment, it will consider the following factors: the geographic and temporal scope of the powers; the discretion afforded to the authorities in deciding if and when to exercise the powers; any curtailment on the interference occasioned by the exercise of the powers; the possibility of judicially reviewing the exercise of the powers; and any independent oversight of the use of the powers. ( α ) The geographic and temporal scope of the powers 90. The Schedule 7 powers can only be exercised by police officers at ports and border controls. The majority of the Supreme Court considered that this restriction distinguished the case from Gillan and Quinton, cited above, since the “stop and search powers” under section 44 of TACT could be exercised throughout the whole of the United Kingdom (see paragraph 27 above). However, Lord Kerr, in his dissenting opinion, considered that the Schedule 7 powers were much broader than the “stop and search” powers, since they were not subject to any express authorisation and they were not temporally or geographically limited. As a consequence, they had the potential to affect the 245 million people who pass through the United Kingdom ’ s ports and borders every year (see paragraphs 33 - 36 above). 91. Although the Court sees the logic behind the comparison to Gillan and Quinton, the important question is not whether the Schedule 7 powers are wider or narrower than the “stop and search” powers, or how the safeguards which curtail the exercise of both powers measure up, but rather whether the Schedule 7 scheme, assessed as a whole, contains sufficient safeguards to protect the individual against arbitrary interference. 92. In this regard, while the Court would accept that in view of their permanent application at all ports and border controls, the Schedule 7 powers are wide in scope, this does not, in itself, run contrary to the principle of legality. The Court has expressly acknowledged both the very real threat that Contracting States currently face on account of international terrorism (see, for example, Chahal v. the United Kingdom, 15 November 1996, § 79, Reports of Judgments and Decisions 1996 ‑ V; A. and Others v. the United Kingdom [GC], no. 3455/05, § 181, ECHR 2009; A. v. the Netherlands, no. 4900/06, § 143, 20 July 2010; Trabelsi v. Belgium, no. 140/10, § 117, ECHR 2014 (extracts); and Othman (Abu Qatada) v. United Kingdom, no. 8139/09, § 183, ECHR 2012). ) and the importance of controlling the international movement of terrorists (see, for example, McVeigh, O ’ Neill and Evans v United Kingdom (1981) 5 EHRR 71, § 192). Ports and border controls will inevitably provide a crucial focal point for detecting and preventing the movement of terrorists and/or foiling terrorist attacks. Indeed, all States operate systems of immigration and customs control at their ports and borders, and while these controls are different in nature to the Schedule 7 powers, it is nevertheless the case that all persons crossing international borders can expect to be subject to a certain level of scrutiny. ( β ) The discretion afforded to the authorities in deciding if and when to exercise the powers 93. The Schedule 7 powers may be exercised by examining officers for the purpose of determining whether a person is concerned in the commission, preparation or instigation of acts of terrorism. Examining officers therefore enjoy a very broad discretion, since “terrorism” is widely defined (see R. v. Gul, at paragraphs 71 - 72 above ) and the Schedule 7 powers may be exercised whether or not he or she has objective or subjective grounds for suspecting that a person is concerned in the commission, preparation or instigation of acts of terrorism. 94. In Gillan and Quinton the Court criticised the fact that officers could exercise the stop and search powers without having to demonstrate the existence of any reasonable suspicion (see Gillan and Quinton, cited above, § 83 ). Similarly, in Ivashchenko the Court was concerned by the fact that the customs authorities had been able to examine and copy data contained on the applicant ’ s laptop and storage devices without at least “some notion of a reasonable suspicion” that he had committed an offence ( Ivashchenko, cited above, §§ 84-85). A requirement of reasonable suspicion is therefore an important consideration in assessing the lawfulness of a power to stop and question or search a person; however, there is nothing in either case to suggest that the existence of reasonable suspicion is, in itself, necessary to avoid arbitrariness. Rather, this is an assessment for the Court to make having regard to the operation of the scheme as a whole and, for the reasons set out below, it does not consider that the absence of a requirement of reasonable suspicion by itself rendered the exercise of the power in the applicant ’ s case unlawful within the meaning of Article 8 § 2 of the Convention. 95. First of all, the Court has repeatedly held that the national authorities enjoy a wide margin of appreciation in matters relating to national security (see, among many examples, Konstantin Markin v. Russia [GC], no. 30078/06, § 134, ECHR 2012 (extracts)) and there is clear evidence that the Schedule 7 powers have been of real value in protecting national security. According to the Independent Reviewer, they were “instrumental” in “securing evidence which assists in the conviction of terrorists” (see paragraph 48 above). While the majority of examinations which led to convictions were intelligence-led, examinations could be useful even if they did not lead to a conviction. Intelligence gathered during the examinations contributed to a rich picture of the terrorist threat to the United Kingdom and its interests abroad, and could assist in the disruption or deterrence of terrorists ’ plans (see paragraph 48 above). Were “reasonable suspicion” to be required, terrorists could avoid the deterrent threat of Schedule 7 by using people who had not previously attracted the attention of the police (“clean skins”); and the mere fact of a stop could alert a person to the existence of surveillance (see paragraph 49 above). 96. Secondly, it is important to distinguish between the two distinct Schedule 7 powers, being the power to question and search a person; and the power to detain a person. As the power to detain would, under normal circumstances, entail a greater interference with a person ’ s rights, and therefore has greater potential for abuse, it may well have to be accompanied by more stringent safeguards. However, as the applicant in the present case was not formally detained, the Court must limit its examination to the lawfulness of the power to question and search. 97. Thirdly, the Court considers it relevant that the Schedule 7 power – and in particular the power to question and search – is a preliminary power of inquiry expressly provided in order to assist officers stationed at ports and borders to make counter-terrorism inquiries of any person entering or leaving the country. While there was no requirement of “reasonable suspicion”, guidance was nevertheless provided to examining officers which attempted to clarify when the discretion could be exercised. According to the Guidance Notes accompanying the Code of Practice in force at the time of the applicant ’ s examination, the power had to be used proportionately and officers had to take particular care to ensure that the selection of persons for examination was not solely based on their ethnic background or religion. Instead, the decision to exercise Schedule 7 powers had to be based on the threat posed by the various active terrorist groups and be based on a number of considerations, including the following factors: known or suspected sources of terrorism; individuals or groups whose current or past involvement in acts or threats of terrorism is known or suspected, and supporters or sponsors of such activity who are known or suspected; any information on the origins and/or location of terrorist groups; possible current, emerging and future terrorist activity; the means of travel (and documentation) that a group or individuals involved in terrorist activity could use; and emerging local trends or patterns of travel through specific ports or in the wider vicinity that may be linked to terrorist activity (see paragraph 42 above). While not relevant to the Court ’ s assessment of the case at hand, it nevertheless notes that pursuant to the Anti-Social Behaviour, Crime and Policing Act 2014 and the new Code of Practice, examining officers now have to be accredited by their chief officer as having met a national standard in the use of the powers (see paragraphs 54 ‑ 55 above). 98. Fourthly, the reports of the Independent Reviewer would suggest that the powers are not, in fact, being abused (see paragraphs 44 - 51 and 56 ‑ 61 above). In 2011, only 0.03% of passengers travelling through ports were examined under Schedule 7. In the following years, the Independent Reviewer noted a significant decline in the total number of examinations. Furthermore, although persons of minority ethnic communities, and especially those of Asian and North African ethnicity, were stopped more often than their percentage in the travelling population would objectively warrant, as noted by the Independent Reviewer, this did not mean that examinations were misdirected. Therefore, although the Independent Reviewer recommended vigilance, he considered that the figures in themselves provided no basis for criticism of the police. 99. In light of the foregoing, the Court considers it necessary to assess whether the other safeguards in respect of the exercise of the Schedule 7 powers are sufficient to protect individuals from its arbitrary exercise. ( γ ) Any curtailment on the interference occasioned by the exercise of the powers 100. At the time the applicant was examined, Schedule 7 provided that a person detained under that power had to be released not later than the end of a period of nine hours from the beginning of the examination (see paragraph 40 above). The Code of Practice further required that the examining officer keep the length of the examination “to the minimum that is practicable”. At the beginning of the examination, the examining officer had to explain to the person concerned either verbally or in writing that she was being examined under Schedule 7 of TACT and that the officer had the power to detain her should she refuse to co-operate and insist on leaving. A record had to be kept of the examination; at the port, if the examination lasted less than one hour, or centrally, if it lasted longer (see paragraph 42 above). However, despite the fact that persons being examined were compelled to answer the questions asked, neither TACT nor the Code of Practice in force at the relevant time made any provision for a person being examined (who was not detained) to have a solicitor in attendance. Consequently, persons could be subjected to examination for up to nine hours, without any requirement of reasonable suspicion, without being formally detained, and without having access to a lawyer. 101. The legislation has since been amended by the Anti-Social Behaviour, Crime and Policing Act 2014 (see paragraphs 52 - 53 above), which requires examining officers to take a person into detention if they wish to examine him or her for longer than an hour. It further provides that the questioning of an examinee should not commence until after the arrival of a requested solicitor, unless postponing questioning would be likely to prejudice the determination of the relevant matters, and gives the person being examined the right (insofar as practical) to have a named person informed of his or her whereabouts. The 2014 Act also reduced the maximum period of detention from nine hours to six hours and required the periodic review of detention by a review officer. 102. Nevertheless, the Court must have regard to the legislation in force at the time the applicant was examined pursuant to the Schedule 7 powers, when the only safeguard capable of curtailing the interference occasioned by the exercise of those powers was the requirement that she be released not later than the end of a period of nine hours from the beginning of the examination. ( δ ) The possibility of judicial review of the exercise of the powers 103. While it is possible to seek judicial review the exercise of the Schedule 7 powers, the applicant argues that the absence of any obligation on the part of the examining officer to show “reasonable suspicion” would make it difficult, if not impossible, to prove that the power was improperly exercised. The Court accepted a similar argument in Gillan and Quinton, finding that the right of an individual to challenge a stop and search by way of judicial review or an action in damages had clear limitations ( Gillan and Quinton, cited above, § 86). 104. Those limitations would appear to be equally relevant to challenges to the Schedule 7 power by way of judicial review. In R (Elostra) the claimant successfully challenged his detention under Schedule 7 on the basis that the police officers had not waited for his solicitor to arrive at the airport before beginning to question him, as required by the Code of Practice. The judge therefore found that the officer ’ s actions had been unlawful (see paragraph 70 above). However, challenges to the lawfulness of the decision to exercise the Schedule 7 power would appear to have been less successful. In R ( David Miranda), the Court of Appeal accepted that the detention of a journalist ’ s spouse at the request of the security service, which was principally concerned with determining whether the material he carried posed a threat to national security, was nevertheless lawful since before agreeing to the stop the police confirmed that the statutory grounds had been made out. In reaching this conclusion, the court observed that “Parliament had set the bar for the exercise of the Schedule 7 power at quite a low level, the power having been given to provide an opportunity for the ascertainment of a possibility” (see paragraph 65 - 68 above). While in R(CC) the court found that the examining officers had not exercised the power for the purpose of determining whether the individual appeared to be a terrorist or not, the judge remarked that it was “a very rare case” since the powers were “properly given a wide construction” (see paragraph 69 above). 105. It would therefore appear that the absence of any obligation on the part of the examining officer to show “reasonable suspicion” has made it difficult for persons to have the lawfulness of the decision to exercise the power judicially reviewed. ( ε ) Any independent oversight of the use of the powers. 106. The use of the powers is subject to independent oversight by the Independent Reviewer of Terrorism Legislation. The Independent Reviewer, a role that has existed since the late 1970s, is an independent person, appointed by the Home Secretary and by the Treasury for a renewable three-year term and tasked with reporting to the Home Secretary and to Parliament on the operation of counter-terrorism law in the United Kingdom. These reports are laid before Parliament, to inform the public and political debate on anti-terrorism law in the United Kingdom. The significance of the role lies in its complete independence from government, coupled with access based on a very high degree of clearance to secret and sensitive national security information and personnel. 107. The oversight provided by the Independent Reviewer should not, therefore, be underestimated. Nevertheless, his reviews are invariably ad ‑ hoc and insofar as he is able to review a selection of examination records, he would not be in a position to assess the lawfulness of the purpose for the stop. Moreover, while his reports are scrutinised at the highest level (the Government in fact publishes its formal response to his annual reports), a number of important recommendations have not been implemented, despite having received support from the Joint Committee on Human Rights and the Home Affairs Select Committee. In particular, the Independent Reviewer has repeatedly called for the introduction of a suspicion requirement for the exercise of certain Schedule 7 powers, including the power to detain and to download the contents of a phone or laptop; and criticised the fact that answers given under compulsion are not expressly rendered inadmissible in criminal proceedings (see paragraphs 57 ‑ 60 above). Although the Counter-Terrorism and Border Security Bill contains a bar on the admissibility in court of answers to questions when an individual is stopped at a port or border under Schedule 7 of TACT (see paragraph 63 above), the Government have not introduced any suspicion threshold for the exercise of the power to detain. 108. Therefore, while of considerable value, the Court does not consider that the oversight of the Independent Reviewer is capable of compensating for the otherwise insufficient safeguards applicable to the operation of the Schedule 7 regime. ( iii ) Conclusion 109. In conclusion, the Court considers that when the applicant was stopped at East Midlands airport in January 2011, the power to examine persons under Schedule 7 of TACT was neither sufficiently circumscribed nor subject to adequate legal safeguards against abuse. While it does not consider the absence of any requirement of “reasonable suspicion” alone to have been fatal to the lawfulness of the regime, when considered together with the fact that the examination could continue for up to nine hours, during which time the person would be compelled to answer questions without any right to have a lawyer present, and the possibility of judicially reviewing the exercise of the power would be limited, the Court finds that the Schedule 7 powers were not “in accordance with the law”. It follows that there has been a violation of Article 8 of the Convention. 110. In reaching this conclusion the Court has only had regard to the Schedule 7 power to examine as it was at the time the applicant was stopped. It has not considered the amendments which flowed from the Anti ‑ Social Behaviour, Crime and Policing Act 2014 and the updated Code of Practice; nor has it considered the power to detain under Schedule 7, which has the potential to result in a much more significant interference with a person ’ s rights under the Convention. II. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION 111. The applicant further complained that she had been deprived of her liberty within the meaning of Article 5 § 1 of the Convention, and that the deprivation gave rise to a violation of Article 5 of the Convention as it was not “in accordance with the law”. 112. The Government contested that argument. 113. As this complaint is based on the same facts as the applicant ’ s Article 8 complaint, it must also be declared admissible. However, having regard to the finding relating to the Article 8 complaint (see paragraphs 109 ‑ 110 above), the Court considers that it is not necessary to examine whether, in this case, there has also been a violation of Article 5 (see, for example, Gillan and Quinton, cited above, § 57). III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 114. The applicant further complained that the exercise of coercive police powers to compel her to provide answers that might have been incriminating, without any prior and effective assurance that her answers would not be used against her in a criminal trial, violated her rights under Article 6 of the Convention. 115. Article 6 of the Convention provides, insofar as relevant: “1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law.” 116. The Government argued that the process of examining the applicant was entirely removed from any criminal investigation. A Schedule 7 investigation was not an investigation into an offence that had been committed; the applicant was not notified that she was subject to any criminal allegation; and no criminal proceedings were brought. Consequently, no issue arose under Article 6. 117. The applicant contended that compulsory questioning by police officers engaged the right to a fair trial under Article 6 of the Convention, since the purpose of the investigation was to enable the police to determine whether the person being questioned appeared to be a “terrorist”. Although the definition of “terrorist” was extremely broad, in most cases such an inquiry would include an investigation into whether someone had personal involvement in criminal offences. Moreover, the Schedule 7 powers had the substantive characteristics of a police power to investigate criminal activity. 118. The applicant further submitted that there had been a violation of Article 6 on account of the degree of coercion and the absence of any statutory safeguards relating to the subsequent use of the material obtained from her, which extinguished the very essence of the privilege against self ‑ incrimination. She did not complain about her subsequent prosecution for failing to comply with a duty under Schedule 7; rather, her complaint concerned the absence of safeguards preventing material obtained during a Schedule 7 examination from being used in any possible subsequent prosecution for a terrorism-related offence. 119. The Court has repeatedly held that the protections afforded by Article 6 § 1 apply to a person subject to a “criminal charge”, within the autonomous Convention meaning of that term. A “criminal charge” exists from the moment that an individual is officially notified by the competent authority of an allegation that he has committed a criminal offence, or from the point at which his situation has been substantially affected by actions taken by the authorities as a result of a suspicion against him (see Deweer v. Belgium, 27 February 1980, §§ 42-46, Series A no. 35; Eckle v. Germany, 15 July 1982, § 73, Series A no. 51; McFarlane v. Ireland [GC], no. 31333/06, § 143, 10 September 2010; and, more recently, Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, § 249, ECHR 2016 and Simeonovi v. Bulgaria [GC], no. 21980/04, § 110, 12 May 2017. 120. Thus, for example, a person arrested on suspicion of having committed a criminal offence (see, among other authorities, Heaney and McGuinness v. Ireland, no. 34720/97, § 42, ECHR 2000 ‑ XII, and Brusco v. France, no. 1466/07, §§ 47-50, 14 October 2010), a suspect questioned about his involvement in acts constituting a criminal offence (see Aleksandr Zaichenko v. Russia, no. 39660/02, §§ 41-43, 18 February 2010; Yankov and Others v. Bulgaria, no. 4570/05, § 23, 23 September 2010; and Ibrahim and Others, cited above, § 296) and a person who has been formally charged, under a procedure set out in domestic law, with a criminal offence (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 66, ECHR 1999 ‑ II, and Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 44, ECHR 2004 ‑ XI) can all be regarded as being “ charged with a criminal offence ” and claim the protection of Article 6 of the Convention. It is the actual occurrence of the first of the aforementioned events, regardless of their chronological order, which triggers the application of Article 6 in its criminal aspect ( Simeonovi, cited above, § 111). 121. None of those events occurred in the present case. The applicant was neither arrested nor charged with any (terrorism-related) criminal offence. Although she was questioned for the purpose of determining whether she appeared to be concerned or to have been concerned in the commission, preparation or instigation of acts of terrorism, this cannot, of itself, engage Article 6 of the Convention. First of all, the Schedule 7 power did not require police officers to have “reasonable suspicion” that she was concerned in the commission, preparation or instigation of acts of terrorism. As such, the mere fact of her selection for examination could not be understood as an indication that she herself was suspected of involvement in any criminal offence. On the contrary, the applicant was explicitly told by police officers that she was not under arrest and that the police did not suspect her of being a terrorist (see paragraph 8 above). Moreover, the questions put to her were general in nature and did not relate to her involvement in any criminal offence (see paragraph 11 above). The Court has already noted that the Schedule 7 power is a preliminary power of inquiry expressly provided in order to assist officers stationed at ports and borders to make counter-terrorism inquiries of any person entering or leaving the country (see paragraph 97 above). While it would not exclude the possibility that it could be exercised in such a way as to engage Article 6 of the Convention, there is no evidence to suggest that it was so exercised in the present case. 122. In light of the forgoing, the Court does not consider that Article 6 of the Convention was engaged by the applicant ’ s examination under Schedule 7 of TACT. It does not consider it necessary to examine the second aspect of the applicant ’ s complaint, which concerned the absence of any safeguards relating to the subsequent use of material obtained in interview. Although it would not exclude the possibility that Article 6 could be engaged by the use of any statements made during a Schedule 7 examination in subsequent criminal proceedings (see Saunders v. the United Kingdom, 17 December 1996, § 67, Reports of Judgments and Decisions 1996 ‑ VI ), that was not the case here. 123. Accordingly, the applicant ’ s Article 6 complaint must be rejected as incompatible ratione materiae with the provisions of the Convention within the failing to comply with a duty under Schedule 7 meaning of Article 35 § 3 (a) of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 124. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 125. The applicant seeks “just satisfaction commensurate to any finding of a violation of [her Article 8, 5 and 6 rights] by the Court”. She has not, therefore, expressly claimed any pecuniary or non-pecuniary damage (see, by way of comparison, Mihu v. Romania, no. 36903/13, §§ 82-84, 1 March 2016). Nevertheless, the Court may exercise a degree of flexibility in respect of non-pecuniary damage, by, for instance, agreeing to examine claims for which applicants did not quantify the amount, instead “leaving it to the Court ’ s discretion” (see, among many other examples, Guzzardi v. Italy, 6 November 1980, §§ 112-14, Series A no. 39; Frumkin v. Russia, no. 74568/12, §§ 180 ‑ 82, 5 January 2016; Svetlana Vasilyeva v. Russia, no. 10775/09, §§ 43-45, 5 April 2016; Sürer v. Turkey, no. 20184/06, §§ 49 ‑ 51, 31 May 2016). 126. That being said, the Court does not consider it appropriate to make an award in respect of non-pecuniary damage in the present case. First of all, it has found a violation of Article 8 only. Secondly, as the breach of Article 8 was linked to the quality of the law in force at the relevant time, it has not been called upon to assess the proportionality of the applicant ’ s examination. Thirdly, it notes that the applicant does not contend that in her case the Schedule 7 power was exercised in an arbitrary or discriminatory fashion. B. Costs and expenses 127. The applicant also claimed GBP 37,196.46 for the costs and expenses incurred before the Court. This figure is comprised of GBP 15,624 for Senior Counsel; GBP 14,545 for two junior counsel; GBP 6,985.51 for the solicitor; and GBP 38.95 for postage. 128. The Government argued that it had not been shown that these costs had been actually and necessarily incurred. The relevant legal issues had already been argued in the Supreme Court; there was no sufficient basis for three counsel to be instructed, together with a solicitor; and the applicant ’ s observations were not of such length of complexity to justify the amounts claimed. 129. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 25,000 covering costs under all heads. C. Default interest 130. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention. It found that the legislation in force at that time had not been sufficiently circumscribed nor were there adequate legal safeguards against abuse. In particular, people could be subjected to examination for up to nine hours and compelled to answer questions, without being formally detained or having access to a lawyer. In reaching that conclusion the Court did not consider amendments since made to the legislation. In particular, as of 2014, border officials have been required to take a person into detention if they wish to examine him or her for longer than an hour, to only commence questioning after the arrival of a solicitor, and to release those being questioned after six hours. |
422 | Challenging the lawfulness of detention | II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE 37. Section 5 of the Obligation to Leave and Prohibition of Entry Act ( Väljasõidukohustuse ja sissesõidukeelu seadus ), as in force at the material time, defined expulsion as the enforcement of an obligation to leave in the cases and pursuant to the procedure provided by law. Section 7 of the Act provided that an order to leave Estonia could be issued to an alien who was staying in Estonia without a legal basis and that it had to contain a warning of compulsory execution in the event of failure to comply with it. According to section 8, the compulsory execution was to take place after the sixtieth day following notification of the order. Section 14 ( 4 ) of the Act enumerated the instances where expulsion would not be applied. These included the case where expulsion was no longer feasible. Section 18(1) of the Act stipulated that expulsion of an alien had to be completed within forty-eight hours of his or her arrest. If it was not possible to complete expulsion within that term, the person to be expelled could be placed in a deportation centre, subject to judicial authorisation, until their expulsion, but for no longer than two months (section 23(1)). This term could be extended at the request of the Board by up to two months at a time (section 25). Under section 26-4(1) of the Act, the person to be expelled was required to co-operate in the organisation of the expulsion, including co- operating in obtaining the necessary documents for expulsion. 38. On 1 June 2007 an Agreement between the European Community and the Russian Federation on readmission entered into force. The aim of the agreement is to strengthen the parties ’ co-operation in order to combat illegal immigration more effectively. Article 2 of the agreement, concerning readmission of Russian nationals, reads as follows: “1. The Russian Federation shall admit, upon application by a Member State and in accordance with the procedure provided for in this Agreement, any person who does not, or no longer, fulfil the conditions in force for entry to, presence in, or residence on the territory of the requesting Member State provided it is established, in accordance with Article 9 of this Agreement, that such person is a national of the Russian Federation. The same shall apply to illegally present or residing persons who possessed the nationality of the Russian Federation at the time of entering the territory of a Member State but subsequently renounced the nationality of the Russian Federation in accordance with the national laws of the latter, without acquiring the nationality or a residence authorisation of that Member State or any other State. 2. After the Russian Federation has given a positive reply to the readmission application, the competent diplomatic mission or consular office of the Russian Federation shall irrespective of the will of the person to be readmitted, as necessary and without delay, issue a travel document required for the return of the person to be readmitted with a period of validity of 30 calendar days. If, for any reason, the person concerned cannot be transferred within the period of validity of that travel document, the competent diplomatic mission or consular office of the Russian Federation shall issue a new travel document with a period of validity of the same duration without delay.” 39. In a judgment of 13 November 200 6, the Administrative Law Chamber of the Supreme Court (case no. 3-3-1-45 -0 6 ) found that the assessment of the feasibility of expulsion could not be based on the fact that the person concerned did not wish to leave the country and wanted to stay there. An interpretation to the contrary would have been in conflict with the nature of expulsion as a legal concept. 40. In a judgment of 3 April 200 8, the Administrative Law Chamber of the Supreme Court (case no. 3-3-1-96 -0 7 ) noted that both the Board ’ s request and the court ’ s authorisation for detention had to be based on the law in force at the time of the court proceedings. It pointed out, however, that since expulsion proceedings constituted a dynamic process, due attention had to be given to the prospective changes in legal circumstances which would affect expulsion at the time when the person concerned was expected to be expelled. THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 41. The applicant complained that his right to liberty had been violated by his protracted detention in the deportation centre. He relied on Article 5 § 1 of the Convention which, in so far as relevant, reads as follows: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.” 42. The Government contested that argument. A. Admissibility 1. Abuse of the right of petition 43. The Government considered that the applicant had not acted in good faith but had abused his right of petition as he had submitted to the Court information concerning his expulsion proceedings only selectively. They noted, in particular, that he had failed to inform the Court about his alleged loss of his passport and his further attempts to hinder the completion of the expulsion proceedings, including his refusal to fill out the necessary forms for identity documents to be issued. He had been aware of the fact that the Russian authorities had not accepted the solution suggested by the Estonian authorities that the latter issue the applicant a temporary travel document. 44. The applicant disagreed. 45. The Court observes that all the elements referred to by the Government were mentioned in the copies of the domestic decisions submitted by the applicant and therefore the Court was sufficiently informed about the relevant circumstances of the case at the time when it took its decision to give notice of the application to the Government (see the partial decision on admissibility of 8 January 2008 ). Therefore, this objection is dismissed. 2. Non-exhaustion of domestic remedies 46. The Government argued that the applicant had not exhausted domestic remedies with regard to the issue of his deprivation of liberty or the legality of his continued detention. In respect of the deprivation of liberty, the Government noted that the applicant had not appealed against the Tallinn Administrative Court ’ s decision of 31 October 2003 whereby his placement in the deportation centre had been authorised. In so far as the applicant ’ s subsequent stay in the deportation centre was concerned, the Government emphasised that the domestic courts, when authorising the extension of his detention in the deportation centre, had dealt with the issue only in the context of extending the stay. If the applicant had believed that the length of his detention had been unlawful, he should have filed a separate claim for damages. 47. The applicant submitted that he had appealed against the Administrative Court ’ s decision of 31 October 2003 but since his detention had been extended by the Administrative Court on 30 December 2003, the appeal had become void of substance and he had withdrawn it. 48. The Court reiterates that the purpose of Article 35 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Convention institutions (see, among many other authorities, Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999 ‑ V). The Court observes that after the initial decision whereby the applicant ’ s detention was authorised by the Tallinn Administrative Court, his continued detention was subsequently authorised bimonthly by the same court. The Court notes that in the latter proceedings he made use of his right to appeal to the court of appeal and to the Supreme Court on several occasions. Moreover, the applicant was released from the deportation centre after the Tallinn Administrative Court had refused to extend his detention on 8 October 2007. Thus, the Court considers that the domestic authorities have had an opportunity of putting right the alleged violation of the applicant ’ s right to liberty. In the context of the present case it is not of decisive importance whether or not the applicant appealed against the initial decision as at that time the issue of the compatibility of the length of his detention with Article 5 § 1 (f) could not possibly have arisen. As to the question whether the applicant should have filed a separate claim for damages, the Court does not consider that he would have had any prospect of success in such proceedings as his detention had been authorised by administrative courts which had considered it lawful. Therefore, this objection is also dismissed. 3. Conclusion as to admissibility 49. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The submissions of the parties ( a ) The applicant 50. The applicant argued that he had not been detained for the purpose of his deportation and considered that the real reason for his detention had been to force him to co - operate and apply for a Russian passport. He emphasised, however, that deportation meant execution of the obligation to leave by the force of the State, and that the authorities had had no reason to count on his co-operation as in his opinion his stay in Estonia had a legal basis. The extension of his detention – whereby the domestic courts referred to his failure to fulfil his obligation to co-operate with the authorities – had actually become a form of punishment and a means of breaking his will. Even assuming that the authorities had initially pursued a legitimate aim, they had later wished to force him to sign the documents and thereafter waited for the changes in international law to take effect. The applicant pointed out that the exceptions to the right to liberty, listed in paragraph 1 of Article 5, had to be interpreted narrowly and that detention ceased to be justified under subparagraph (f) if the deportation proceedings were not conducted with due diligence. (b) The Government 51. The Government maintained that the applicant ’ s detention had been lawful under domestic law. The only purpose of his detention had been his expulsion from Estonia; this was demonstrated by the pertinent court decisions as well as by the other steps taken by the authorities. The applicant ’ s refusal to co-operate had only extended the period of his detention. The Government pointed out that the feasibility of expulsion could not be assessed on the basis of whether the person concerned wished to leave the country or not. They also emphasised that in 2006 and 2007 the Estonian authorities could legitimately presume that after the entry into force of the EU-Russia readmission agreement on 1 June 2007 there would be an additional basis for the applicant ’ s expulsion. The Estonian authorities could not have foreseen that the Russian party would not comply with its obligations under that agreement. 52. The Government argued that periodic judicial review of the applicant ’ s detention had constituted a sufficient guarantee against arbitrariness. Moreover, it had been repeatedly explained to the applicant what he needed to do in order to be released. At the same time, international and diplomatic channels had been used to find other possibilities for the applicant ’ s expulsion. 53. The Government insisted that the applicant ’ s own behaviour had contributed to a significant extent to the length of his detention. They pointed out that the applicant, claiming that he had lost his passport, had shown no readiness to apply for a new identity or travel document; nor had the Russian authorities been ready to issue him such a document in the absence of his application or to accept a temporary travel document the Estonian authorities could have issued. The Government pointed to the efforts made by the Estonian authorities through diplomatic channels to find a solution to the situation, and to the fact that they had presumed that the applicant ’ s expulsion would prove easier after the entry into force of the EU-Russia readmission agreement. They emphasised that when it had become clear that the applicant ’ s expulsion was not realistically possible at the time, he had been released from the deportation centre. 54. In conclusion, considering the time-consuming nature of communication between states and the unwillingness of the receiving State to co-operate, as well as the applicant ’ s own intentional failure to present an identity document and refusal to apply for one, plus the fact that he had enjoyed completely appropriate conditions throughout, his stay in the deportation centre had been in conformity with Article 5 § 1 (f). 2. The third-party intervener ’ s arguments 55. The Russian Government agreed in substance with the applicant ’ s arguments. They considered that the applicant ’ s protracted detention had been in violation of Article 5 § 1. They noted that the Estonian authorities had found out shortly after the applicant ’ s arrest that it was impossible to deport him without travel documents and that such documents could not be obtained without his co - operation. The applicant ’ s detention had been aimed at breaking his will and forcing him to sign documents needed for him to leave the country. In the opinion of the Russian Government the applicant ’ s conduct could not have justified such a long period of detention. They pointed out that after his release less severe measures, such as police control, had been applied and there had been no reason why such measures could not have been applied before. 3. The Court ’ s assessment (a) Whether the applicant ’ s detention fell within the scope of Article 5 § 1 (f) 56. The Court reiterates that subparagraphs (a) to (f) of Article 5 § 1 of the Convention contain an exhaustive list of permissible grounds of deprivation of liberty, and no deprivation of liberty will be lawful unless it falls within one of those grounds (see, inter alia, Saadi v. the United Kingdom [GC], no. 13229/03, § 43, ECHR 2008 ‑ ... ). 57. In the present case, the Government contended that the applicant was deprived of his liberty with a view to expulsion and that his detention had been permissible under subparagraph (f) of Article 5 § 1. The applicant and the Russian Government contested that argument, considering that the real purpose of his detention had been to break his will and to force him to co - operate. They were of the opinion that, even assuming that his detention had initially been aimed at his expulsion, this had soon proved impossible and the detention had become a punitive measure. 58. The Court observes that the applicant was refused an extension of his residence permit, was ordered to leave the country and was warned that his failure to leave would result in his expulsion. As he failed to leave within the time-limit and his immediate expulsion was impossible because of lack of travel documents, an administrative court authorised his placement in the deportation centre on the basis of the Obligation to Leave and Prohibition of Entry Act. Thus, the Court has no reason to doubt that the applicant ’ s detention, at least initially, fell within the scope of Article 5 § 1 (f). (b) Whether the applicant ’ s detention was arbitrary 59. The Court reiterates that Article 5 § 1 (f) does not demand that detention be reasonably considered necessary, for example to prevent the individual from committing an offence or fleeing. Any deprivation of liberty under the second limb of Article 5 § 1 (f) will be justified, however, only for as long as deportation or extradition proceedings are in progress. If such proceedings are not prosecuted with due diligence, the detention will cease to be permissible under Article 5 § 1 (f) ( see A. and Others v. the United Kingdom [GC], no. 3455/05, § 164, 19 February 2009, and Chahal v. the United Kingdom, 15 November 1996, § 113, Reports of Judgments and Decisions 1996 ‑ V). 60. The deprivation of liberty must also be “lawful”. Where the “lawfulness” of detention is in issue, including the question whether “a procedure prescribed by law” has been followed, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules of national law. Compliance with national law is not, however, sufficient: Article 5 § 1 requires in addition that any deprivation of liberty should be in keeping with the purpose of protecting the individual from arbitrariness. It is a fundamental principle that no detention which is arbitrary can be compatible with Article 5 § 1 and the notion of “arbitrariness” in Article 5 § 1 extends beyond lack of conformity with national law, so that a deprivation of liberty may be lawful in terms of domestic law but still arbitrary and thus contrary to the Convention ( see Saadi, cited above, § 67). To avoid being branded as arbitrary, detention under Article 5 § 1 (f) must be carried out in good faith; it must be closely connected to the ground of detention relied on by the Government; the place and conditions of detention should be appropriate; and the length of the detention should not exceed that reasonably required for the purpose pursued (see A. and Others v. the United Kingdom, cited above, § 164, and, mutatis mutandis, Saadi, cited above, § 74). 61. As concerns the compliance of the applicant ’ s detention with national law in the present case, the Court observes that the domestic courts, in extending his detention every two months, found it lawful. The Court further observes that sections 23 and 25 of the Obligation to Leave and Prohibition of Entry Act, relied on by the domestic authorities, provided a legal basis for such detention. 62. However, as noted above, compliance with domestic law is not in itself sufficient to establish lack of arbitrariness and further elements, referred to in paragraph 60 above, must be examined in this context. One of these elements is the length of the detention, which should not exceed that reasonably required for the purpose pursued. 63. The court reiterates that deprivation of liberty under Article 5 § 1 (f) is justified only for as long as deportation proceedings are being conducted. It follows that if such proceedings are not being prosecuted with due diligence, the detention will cease to be justified under this subparagraph (see, mutatis mutandis, Quinn v. France, 22 March 1995, § 48, Series A no. 311). 64. The Court observes that the applicant ’ s detention with a view to expulsion was extraordinarily long. He was detained for more than three years and eleven months. While in the beginning of his detention the domestic authorities took steps to have documents issued to him, it must have become clear quite soon that these attempts were bound to fail as the applicant refused to co - operate and the Russian authorities were not prepared to issue him documents in the absence of his signed application, or to accept a temporary travel document the Estonian authorities were ready to issue. Indeed, the Russian authorities had made their position clear in both respects by as early as June 2004. Thereafter, although the Estonian authorities took repeated steps to solve the situation, there were also considerable periods of inactivity. In particular, the Court has been provided with no information on whether any steps with a view to the applicant ’ s deportation were taken from August 2004 to March 2006 (see paragraphs 18 to 33 above ). 65. What is more, the applicant ’ s expulsion had become virtually impossible as for all practical purposes it required his co - operation, which he was not willing to give. While it is true that States enjoy an “undeniable sovereign right to control aliens ’ entry into and residence in their territory” (see, for example, Saadi, cited above, § 64, with further references), the aliens ’ detention in this context is nevertheless only permissible under Article 5 § 1 (f) if action is being taken with a view to their deportation. The Court considers that in the present case the applicant ’ s further detention cannot be said to have been effected with a view to his deportation as this was no longer feasible. 66. It is true that at some point the Estonian authorities could legitimately have expected that the applicant could be removed on the basis of the EU-Russia readmission agreement once it entered into force, as under this agreement the Russian authorities were required to issue travel documents to persons to be readmitted irrespective of their will. However, the agreement entered into force only on 1 June 2007, which was about three years and seven months after the applicant was placed in detention. In the Court ’ s opinion the applicant ’ s detention for such a long time even if the conditions of detention as such were adequate could not be justified by an expected change in the legal circumstances. 67. The Court also notes that after the applicant ’ s release on 9 October 2007 he was informed that he still had to comply with the order to leave. He was obliged to report to the Board at regular intervals (see paragraph 35 above ). Thus, the authorities in fact had at their disposal measures other than the applicant ’ s protracted detention in the deportation centre in the absence of any immediate prospect of his expulsion. 68. The foregoing considerations are sufficient to enable the Court to conclude that the grounds for the applicant ’ s detention – action taken with a view to his deportation – did not remain valid for the whole period of his detention due to the lack of a realistic prospect of his expulsion and the domestic authorities ’ failure to conduct the proceedings with due diligence. There has accordingly been a violation of Article 5 § 1 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 69. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 70. The applicant claimed 3 0,000 euros (EUR) in respect of non-pecuniary damage. 71. The Government reiterated that the applicant had not exhausted domestic remedies since he had failed to lodge a complaint and claim damages before an administrative court. Alternatively, the Government argued that the applicant ’ s release from detention had constituted sufficient redress. Should the Court nevertheless find that the applicant had sustained non-pecuniary damage, the Government requested the Court to award him a reasonable sum. 72. The Court notes that the argument concerning the non-exhaustion of domestic remedies has been dismissed (see paragraph 48 above). It finds that the applicant has suffered non-pecuniary damage as a result of the violations found. Deciding on an equitable basis, and having regard to the specific circumstances of the present case and to the applicant ’ s behaviour in particular, the Court awards the applicant EUR 2,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount. B. Costs and expenses 73. The applicant also claimed 40,731.30 kroons (EEK – approximately corresponding to EUR 2,603 ) for the costs and expenses incurred before the domestic courts and the Court. 74. The Government pointed out that most of the invoices submitted by the applicant concerned costs not related to the present case. Only translation costs in the amount of EEK 3,260.40 (EUR 208) were related to the proceedings before the Court but this sum had in fact not been paid by the applicant. 75. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. The Court notes that in the present case only costs in the amount of EUR 208 were related to this case either at the domestic level or before the Court. Regard being had to the information in its possession and the above criteria, the Court awards the applicant EUR 208 in respect of costs and expenses, plus any tax that may be chargeable to the applicant, and dismisses the remainder of his claims under this head. C. Default interest 76. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 5 § 1 (right to liberty and security) of the Convention, finding that the grounds for the applicant’s detention – action taken with a view to his deportation – did not remain valid for the whole period of his detention due to the lack of a realistic prospect of his expulsion and the domestic authorities’ failure to conduct the proceedings with due diligence. |
406 | Deprivation of liberty / Restriction on the freedom of movement | THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION 58. The applicants maintained that the fact that they had been placed in the transit zone following their respective arrests on 30 January 2003 and 3 February 2003 and then placed in Merksplas following the order of 14 February 2003 infringed Article 5 of the Convention, since those measures had been applied in breach of the court decisions ordering their release, which had not been executed with the diligence, promptness and good faith which that provision required in guaranteeing strict judicial supervision of any deprivation of liberty. The relevant provisions of Article 5 of the Convention read as follows: “ 1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... ( f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition. ... 4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” ... B. Merits 64. The applicants submitted that as regards their transfer to the transit zone, the Government were playing with words in regarding the transfer as a release. All the independent bodies which had visited the transit zone spoke of detention. Furthermore, what would be the point of judicial review of the lawfulness of an alien's detention “at the border” on his or her arrival on Belgian territory if the Aliens Office's practice of subsequently placing aliens in the transit zone were accepted? The orders of 14 February 2003 had answered that question by making clear that, in those circumstances, such judicial review would be reduced to a mockery; the orders used the word “farce”. In using such a stratagem, the State had not complied specifically and effectively with the decisions of the investigating courts but had embarked upon a parody which rendered nugatory the guarantee which it had put in place. The same applied to the circumstances leading to the applicants'detention at Merksplas. The applicants, who noted that their “ review ” was concomitant with their leaving the transit zone, observed that the use of ruses by the authorities had been firmly condemned by the Court ( citing Čonka v. Belgium, no. 51564/99, §§ 42 - 44, ECHR 2002-I). They also observed that deprivation of liberty was merely an option in Belgian law and was not automatic, as the decisions adopted by the chambre du conseil, the Indictment Division and the President of the Brussels Court of First Instance showed. However, the Aliens Office's position consisted in making deprivation of liberty the rule for every alien not authorised to enter the territory, without any consideration as to whether the measure was appropriate or proportionate. 65. The technique of placing persons in the transit zone in order to circumvent decisions ordering their release had been denounced in an opinion of the Federal Ombudsman of 14 September 2004 and its consequences had been emphasised in the final observations of the United Nations Human Rights Committee of 30 July 2004 concerning Belgium. The applicants also noted the criticisms expressed in 2003 and 2004 by the European Union and the relevant conclusions in the Committee against Torture's Report of 25 May 2003 concerning Belgium, and referred to other recent texts issued by institutions of the Council of Europe – the Committee of Ministers, the Commissioner for Human Rights and the Parliamentary Assembly – which supported their analysis. In the report on the visit carried out in April 2005, the CPT had once again recommended that the Belgian authorities should end the impugned practice for good. In a judgment of 29 September 2005 the Brussels Court of Appeal, upholding an order of the chambre du conseil of the Brussels Court of First Instance of 28 January 2004, had held that transfer to the transit zone had not amounted to the implementation in good faith of a decision ordering the release of an alien held in the detention centre and had constituted an illegal act. 66. The Government observed that, following the judgments of 30 January and 3 February 2003, the applicants had been immediately released and had left the centre for illegal aliens in Bruges. However, as they had not been allowed to enter the territory owing to the decisions refusing them entry, which were still in force, they had been taken to the transit zone. That measure had implemented the above-mentioned decisions in accordance with domestic law and with the domestic courts'interpretation of it. The investigating courts had no jurisdiction to set aside or stay the execution of decisions refusing entry or ordering removal. Under section 72, subsection 2, of the Act of 15 December 1980, their role was limited to ascertaining whether administrative decisions depriving individuals of their liberty were in accordance with the law. In any event, the applicants'transfer to the transit zone could not be regarded as deprivation of liberty. The order of 14 February 2003 had departed from domestic and international case-law in considering that the transit zone was a “closed place”. The only restriction placed on the applicants'freedom was that they had been prohibited from entering Belgian territory. Furthermore, the applicants had been duly informed of their situation in English, a language which they knew, and their luggage, money and personal effects had been returned to them. They had been free to move and, in particular, to leave Belgian territory. The authorities had also given them the opportunity to do so by taking a flight on which seats had been booked in their names, but the applicants had refused these opportunities on three occasions and one occasion respectively. In those circumstances, the applicants must be considered to have been at the origin of the complaint which they had put forward and the State was therefore not responsible for the situation created ( citing Mogoş v. Romania, no. 20420/02, 13 October 2005). 67. As regards the detention in Merksplas, the Government stated that, following the orders of 14 February 2003, the applicants had been authorised to leave the transit zone on 15 February 2003 and to have access to Belgian territory. However, they had not had leave to remain there. In the course of checks carried out on 15 February 2003 at 11.30 a.m. it had been found that they were in Belgian territory without being in possession of the necessary documents, and orders to leave the territory, together with a decision to expel them and a decision to deprive them of their liberty for that purpose, had been served on them, on the basis of section 7 of the Act of 15 December 1980. Noting that the words “in accordance with a procedure prescribed by law” essentially referred back to domestic law ( citing Winterwerp v. the Netherlands, 24 October 1979, Series A no. 33; Steel and Others v. the United Kingdom, 23 September 1998, Reports of Judgments and Decisions 1998-VII; and Shamsa v. Poland, nos. 45355/99 and 45357/99, 27 November 2003 ), the Government explained that the deprivation of liberty in question was governed by the above - mentioned provision, which was extremely precise in that regard. The measures taken on 15 February 2003 to deprive the applicants of their liberty had satisfied the relevant criteria set by the Administrative Jurisdiction and Procedure Court ( Cour d'arbitrage ) and had been wholly necessary and proportionate. As the impugned decisions stated, various attempts had already been made to remove the applicants and on each occasion they had refused to comply. The competent authorities had therefore been entitled to take the view that there was little prospect that the applicants would voluntarily comply with the new decisions taken against them. The Government further observed that although the applicants had had the opportunity to appeal against these decisions to the chambre du conseil and had been informed of their right of appeal, they had failed to do so although their detention had begun on 15 February 2003 and ended on 8 March 2003. Nor could such a period of detention be considered excessive, according to the case-law ( they cited Singh v. the Czech Republic, no. 60538/00, 25 January 2005, and Chahal v. the United Kingdom, 15 November 1996, Reports 1996 ‑ V), and their removal had taken place within the period of two months provided for in section 7 of the Act of 15 December 1980. 68. The Court must determine in the first place whether the placing of the applicants in the transit zone constituted a deprivation of liberty within the meaning of Article 5 of the Convention; the question of their stay in Merksplas does not give rise to any dispute in that regard. The Court observes that it has already found that holding aliens in an international zone involves a restriction upon liberty which is not in every respect comparable to that which obtains in detention centres. However, such confinement is acceptable only if it is accompanied by safeguards for the persons concerned and is not prolonged excessively. Otherwise, a mere restriction on liberty is turned into a deprivation of liberty ( see Amuur v. France, 25 June 1996, § 43, Reports 1996 ‑ III). However, the applicants in the present case were confined in the transit zone not upon their arrival in the country but more than one month later, after decisions had been given ordering their release. In addition, their confinement was ordered for an indefinite period and eventually lasted fifteen days and eleven days respectively. Furthermore, the mere fact that it was possible for the applicants to leave voluntarily cannot rule out an infringement of the right to liberty ( ibid., § 48). The Court concludes that the applicants'confinement in the transit zone of the airport amounted to a de facto deprivation of liberty. 69. The Court must therefore examine the compatibility of the deprivations of liberty found in the present case with paragraph 1 of Article 5 of the Convention. 70. The Court reiterates that in order for detention to be in keeping with Article 5 § 1 ( f) of the Convention it is sufficient that an expulsion procedure is in progress and that the person concerned has been detained with a view to deportation; it is therefore unnecessary to consider whether the underlying decision to expel him could be justified under national law or Convention law or whether the detention could be considered reasonably necessary, for example to prevent his fleeing or committing an offence ( see Chahal, cited above, § 112). The Court has, more specifically, held that it is normal that States, in the exercise of their “undeniable ... right to control aliens'entry into and residence in their territory” ( see Amuur, cited above, § 41), have the right to detain would-be immigrants who – whether or not by applying for asylum – have sought permission to enter the territory. However, the detention of a person constitutes a major interference with individual freedom and must always be subject to rigorous scrutiny. The question also remains whether the detention was effected “in accordance with a procedure prescribed by law”, within the meaning of Article 5 § 1. 71. The Court reiterates that in relation to whether a detention was “lawful”, including whether it was in accordance with “a procedure prescribed by law”, the Convention refers essentially to national law and establishes the need to apply its rules, but it also requires that any deprivation of liberty must be compatible with the purpose of Article 5, namely to protect the individual from arbitrariness (see Dougoz v. Greece, no. 40907/98, § 54, ECHR 2001 -II; Markert-Davies v. France (dec.), no. 43180/98, 29 June 1999; Amuur, cited above, § 50; Wassink v. the Netherlands, 27 September 1990, § 24, Series A no. 185; and Bozano v. France, 18 December 1986, § 54, Series A no. 111). 72. Article 5 § 1 thus primarily requires any arrest or detention to have a legal basis in domestic law ( see Bozano, cited above ). However, the “lawfulness” of detention under domestic law is not always the decisive element. The Court must moreover ascertain whether domestic law itself is in conformity with the Convention, including the general principles expressed or implied therein. On this last point, the Court stresses that, where deprivation of liberty is concerned, it is particularly important that the general principle of legal certainty be satisfied. It is therefore essential that the conditions for deprivation of liberty under domestic law be clearly defined and that the law itself be foreseeable in its application, so that it meets the standard of “lawfulness” set by the Convention, a standard which requires any law to be sufficiently precise to avoid all risk of arbitrariness (see Nasrulloyev v. Russia, no. 656/06, § 71, 1 October 2007; Khudoyorov v. Russia, no. 6847/02, § 125, ECHR 2005 ‑ X; Ječius v. Lithuania, no. 34578/97, § 56, ECHR 2000-IX; Baranowski v. Poland, no. 28358/95, §§ 50-52, ECHR 2000-III; and Amuur, cited above ). The standard of “lawfulness” established in the Convention requires that all law be sufficiently precise to allow the citizen – if need be, with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail ( see Shamsa, cited above, § 40, and Steel and Others, cited above, § 54). 73. The Court must therefore ascertain whether the deprivation of liberty to which the applicants were subjected after the Indictment Division's judgments of 30 January and 3 February 2003 ordering their immediate release, and the orders subsequently made on 14 February 2003, came within the exception permitted by Article 5 § 1 ( f) and, in particular, whether it satisfied the condition of “lawfulness”. 74. The Court observes at the outset that a situation in which the Aliens Office was able, on two occasions, to keep the applicants in detention despite the fact that their previous detention order had been set aside and their release ordered in clear terms by decisions which had become final in the absence of an appeal raises serious doubts in relation to the principle of lawfulness and the proper enforcement of judicial decisions. 75. As regards the placing and confinement of the applicants in the airport transit zone, the Court observes that in the present case the President of the Brussels Court of First Instance found that those measures were unlawful, stating that they were not permissible and were contrary to the rule of law. In the President's opinion, to accept that placing the persons concerned in that zone was equivalent to release would be tantamount to allowing the State “unilaterally to block a court decision ordering release on the basis of a person's administrative status, when that administrative status had been taken into consideration by that court and must have constituted a ground of its decision ordering release”. Admittedly, the Government appear to be suggesting that the two orders made on 14 February 2003 were not in accordance with domestic law and its interpretation by the domestic courts. If that was the case, it is difficult to understand why no appeal was lodged against those decisions, which described the Aliens Office's approach as an “illegal act”. The Court also observes that the same finding of illegality had already been made previously by the President of the Nivelles Court of First Instance ( see paragraph 54 above). As the applicants submitted, such a finding was also subsequently made expressly by the Brussels Court of Appeal and the United Nations Human Rights Committee and, in substance, by the Federal Ombudsmen. 76. The transfer to and confinement in the transit zone cannot therefore be regarded as the application in good faith of the immigration legislation. As the Court emphasised in the Bozano judgment ( cited above ), it may happen that a Contracting State's agents conduct themselves unlawfully in good faith; in such cases, a subsequent finding by the courts that there has been a failure to comply with domestic law may not necessarily retrospectively affect the validity, under domestic law, of any implementing measures taken in the meantime. Matters would be different if the authorities at the outset knowingly contravened the legislation in force and, in particular, if their original decision was an abuse of powers ( ibid .; see also Gebremedhin [Gaberamadhian] v. France (dec.), no. 25389/05, § 56, 10 October 2006). In the present case it is apparent that the decision to place the applicants in the transit zone was manifestly contrary to the judgments of 30 January and 3 February 2003 and that the Aliens Office had knowingly exceeded its powers. 77. The Court also reiterates that according to its case-law, there must be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention ( see Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, no. 13178/03, § 53, ECHR 2006 -XI, and also, mutatis mutandis, Aerts v. Belgium, 30 July 1998, § 46, Reports 1998 ‑ V, and other authorities cited therein ). The Court notes in that regard that it has been clear, since the first reports of the CPT – to which the Government referred in order to explain the creation of the “ INADS Centre” – and the interlocutory order of the Brussels Court of First Instance of 25 June 2003 – referred to in the CPT's 1994 report ( see paragraph 55 above) – that the transit zone is not an appropriate place of residence, with the exception of the “ INADS Centre”, which appears suitable only for a stay not exceeding “a few days” ( see paragraph 66 of the CPT's 1997 report). However, from 3 February 2003 the applicants were left to their own devices in the transit zone, without humanitarian or social support of any kind. The second applicant was placed in the transit zone, without any explanation of the existence, functioning and location of the “ INADS Centre”, where he might have been given a more appropriate reception. The first applicant, who had initially been placed in the same situation, was given no information about the existence of the centre and was taken there only after he had described his situation to the officials at the border inspection post. Although the first applicant maintained that a few hours after being taken in at that centre he had been taken back to the transit zone and told to fend for himself, the Government stated that he had remained at the centre until 3 February 2003. Even if the Government's version is accepted, the fact remains that after the attempted removal on 3 February 2003 the first applicant was returned to the transit zone without anyone being concerned as to his subsequent fate. The Court will consider that situation in greater detail when it examines the complaint alleging a violation of Article 3 of the Convention. It is also necessary, in that regard, to take account of the fact that those detention measures were applied to foreign nationals who, in some cases, had committed no offences other than those connected with their residence. 78. The Court also observes that the Government failed to explain on what legal basis the applicants had been transferred to and confined in the transit zone. The Court considers that the fact of “detaining” a person in that zone for an indefinite and unforeseeable period without that detention being based on a specific legal provision or a valid decision of a court and with limited possibilities of judicial review on account of the difficulties of contact enabling practical legal assistance, is in itself contrary to the principle of legal certainty, which is implicit in the Convention and is one of the fundamental elements of a State governed by the rule of law (see, mutatis mutandis, Shamsa, cited above, § 58; Ječius, cited above, § 62; and Baranowski, cited above, §§ 54-57). 79. As regards the placing of the applicants in Merksplas, serious doubts as to the lawfulness of this third period of detention may in the Court's view be inferred from the domestic courts'finding that the second period of detention was unlawful. Furthermore, the orders of 14 February 2003 clearly indicated, relying on res judicata and the provisions of the Act of 15 December 1980, that until such time as the applicants were deported, the State must allow them to move freely within the territory, unless the Ministry decided to order them to reside in a designated place. Since the State clearly refused to enforce the repatriation decisions and hoped that the applicants would leave voluntarily, in spite of the previous setbacks, it continued to detain them on other grounds, without making use of the possibility offered by section 73 of the Act of 15 December 1980 to which the orders referred. Accordingly, their detention in Merksplas wholly failed to comply with the above-mentioned orders, against which no appeals were lodged. The Court has pointed out on many occasions that the implementation of final judicial decisions is essential in a State that accepts the rule of law ( see Pedovič v. the Czech Republic, no. 27145/03, § 112, 18 July 2006). 80. In conclusion, the Court considers that the applicants'detention, in the form in which it continued after 3 February 2003, was not “lawful” within the meaning of Article 5 § 1 of the Convention. Accordingly, there has been a violation of that provision. II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 81. The applicants alleged that they had suffered inhuman and degrading treatment, contrary to Article 3 of the Convention, at the hands of the Belgian authorities. They explained, firstly, that they had been left for more than ten days in the transit zone without any legal or social assistance, without any means of subsistence, without accommodation or washing or sleeping facilities, without any place to enjoy a private life, without access to means of communication, without being able to receive visits and without any possibility of having the conditions of their detention reviewed by external independent authorities. Secondly, they had been beaten several times and insulted. They relied on Article 3, which provides: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment. ” ... B. Merits 88. The applicants submitted that in the transit zone they had been the victims of physical and psychological ill-treatment, remaining there without legal and social assistance, without any means of subsistence (food or drink), and without accommodation, toilets or anywhere to sleep. They had had nowhere to wash other than the public conveniences in the airport, no change of clothes, no toiletries and nowhere to enjoy a private life. Nor had they had access to communication facilities or any means of contacting the outside world, in particular their lawyer, a non-governmental organisation, an international organisation or a doctor. They had also been unable to receive visits or to have the conditions of their detention reviewed by external independent authorities. That situation contrasted with the situation at the closed centres, where a whole range of rights were afforded to aliens by a royal decree of 2 August 2002 which guaranteed them individual medical, psychological and social assistance. The physical conditions in the transit zone were used in order to bring psychological pressure to bear on those concerned with the aim of encouraging them to leave. The decisions delivered on 14 February 2003 and various reports had noted that in the transit zone, the living conditions were demeaning to the persons concerned and caused them to experience feelings of inferiority and anxiety capable of weakening and overcoming their physical and mental resistance, thus constituting inhuman and degrading treatment. 89. The Government noted, first of all, that the time spent in the transit zone, a period limited to fifteen days in the first applicant's case and eleven days in the second applicant's case, was wholly attributable to the applicants. They had refused on several occasions to board the planes on which seats had been booked for them. Ab ., on the other hand, who had arrived at the same time as the fist applicant, had left Belgium on 8 February 2003. By refusing to comply with the deportation orders upheld by the Commissioner General's Office, the applicants alone were responsible for the duration of their stay in the transit zone and for the alleged uncertainty connected with their situation ( they cited Mogoş, cited above; Ghiban v. Germany (dec.), no. 20420/02, 16 September 2004; and Matencio v. France, no. 58749/00, 15 January 2004). 90. The Government also maintained that the applicants had not been without resources in the transit zone, since their luggage and personal effects had been returned to them when they had left the Bruges Closed Centre. As regards the first applicant, a report by the Bruges Centre relating to the sums of money deposited by him stated that on leaving he had been given the sum of USD 250 and 1,000 Lebanese pounds. The second applicant had been given the sum of EUR 15.20, according to the Bruges Centre's report on the sums of money deposited. The movements of money mentioned in the various reports in that applicant's file showed that he had certainly had more means at his disposal : on arriving in Belgium he had stated that he had EUR 45; on entering the Bruges Centre he had deposited EUR 81.94 and when he left Belgian territory he had had EUR 150. Nor had the second applicant been alone in the transit zone, since he had joined the two other Palestinian nationals who had been transferred there on 30 January 2003 (the first applicant and Ab.), about whom he had immediately enquired. That amount must be considered to be the minimum amount in their possession: residents were under no obligation to hand over all the money in their possession, although they were advised to do so in order to protect against theft. 91. Furthermore, persons in the transit zone pending deportation could also receive meals via the control services, a practice confirmed by a circular of 31 October 2003. On 1 February 2003 the first applicant had been informed that he could be housed and fed on a voluntary basis at the “ INADS Centre”, and he had stayed there from 1 to 3 February 2003, according to the centre's report (the Government also observed that Ab. had stayed at the “ INADS Centre” from his arrival in the transit zone, at the same time as the first applicant, until he had voluntarily left the country on 8 February 2003). In the Government's view, the applicants were therefore responsible for the situation of which they complained and they could not take issue with the Belgian State for their own failure to make use of the opportunities offered to them. 92. The Government further observed that, as regards the checks carried out by the police in the transit zone, the applicants had adduced no evidence on which it could be considered that those checks had been excessive, or indeed that the applicants themselves had been specifically targeted by those checks. The transit zone at Brussels National Airport was undeniably a high-risk zone, especially in view of the increased risk of attacks in recent years, which meant that regular checks were carried out there and that safeguards were put in place with respect to access to Belgian territory, in accordance with Belgium's commitments to the Schengen States and the member States of the European Union. There was no evidence that the applicants had been systematically targeted during those checks or that any violence had been used on such occasions. Nor had the first applicant lodged a complaint with the competent authorities or submitted any medical certificates confirming the blows or injuries allegedly inflicted on him. 93. As regards the second applicant, the Government also contended that the letter of 19 February 2003 from the lawyer representing both applicants made no mention of the blows and injuries allegedly inflicted on him while he was being transferred on 15 February 2003. 94. The Court reiterates, first of all, that the Contracting States have, under a firmly established principle of international law and without prejudice to their commitments under international treaties, including the Convention, the right to control the entry, residence and expulsion of non-nationals. However, where they exercise their right to expel such persons, they must have regard to Article 3 of the Convention, which enshrines one of the fundamental values of any democratic society. 95. The Court has considered treatment to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either bodily injury or intense physical or mental suffering. It has deemed treatment to be “degrading” because it was such as to arouse in the victims feelings of fear, anguish and inferiority capable of humiliating and debasing them (see, for example, Kudła v. Poland [GC], no. 30210/96, § 92, ECHR 2000-XI). In ascertaining whether a particular form of treatment is “degrading” within the meaning of Article 3, the Court will consider whether the objet was to humiliate and debase the person concerned and whether, as far as its consequences are concerned, the measure did or did not affect his personality in a manner incompatible with Article 3 ( see Albert and Le Compte v. Belgium, 10 February 1983, § 22, Series A no. 58 ). However, the absence of any such purpose cannot conclusively rule out a finding of a violation of Article 3 ( see, for example, Peers v. Greece, no. 28524/95, § 74, ECHR 2001 ‑ III, and Kalashnikov v. Russia, no. 47095/99, § 101, ECHR 2002-VI). The suffering and humiliation inflicted must in any event go beyond that inevitable element of suffering and humiliation connected with a given form of legitimate treatment or punishment. In this connection, the public nature of the punishment or treatment may be a relevant and aggravating factor (see, for example, Raninen v. Finland, 16 December 1997, § 55, Reports 1997-VIII). However, it may well suffice that the victim is humiliated in his or her own eyes, even if not in the eyes of others ( see Tyrer v. the United Kingdom, 25 April 1978, § 32, Series A no. 26; Smith and Grady v. the United Kingdom, nos. 33985/96 and 33986/96, § 120, ECHR 1999 ‑ VI; and Erdoğan Yağız v. Turkey, no. 27473/02, § 37, 6 March 2007). 96. The Court further reiterates that, according to its case-law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Ireland v. the United Kingdom, 18 January 1978, § 162, Series A no. 25). 97. In order to carry out this assessment, regard must be had to “the fact that the Convention is a'living instrument which must be interpreted in the light of present-day conditions'[and] that the increasingly high standard being required in the area of the protection of human rights and fundamental freedoms correspondingly and inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies” ( see Mubilanzila Mayeka and Kaniki Mitunga, cited above, § 48, and, mutatis mutandis, Selmouni v. France [GC], no. 25803/94, § 101, ECHR 1999 ‑ V ). 98. The Court observes that the placing of the applicants in the transit zone constituted detention within the meaning of Article 5 of the Convention. The Court's task is limited to examining the personal situation of the applicants who were deprived of their liberty ( see Aerts, cited above, §§ 34-37). In assessing whether such measures may fall within the ambit of Article 3 in a given case, regard must be had to the particular conditions, the stringency of the measure, its duration, the objective pursued and its effects on the person concerned ( see Van der Ven v. the Netherlands, no. 50901/99, § 51, ECHR 2003 -II; see also Dhoest v. Belgium, application no. 10448/83, Commission's report of 14 May 1987, Decisions and Reports 55, pp. 20-21, §§ 117-118). 99. Measures depriving persons of their liberty inevitably involve an element of suffering and humiliation. Although this is an unavoidable state of affairs which, in itself as such, does not infringe Article 3, that provision nevertheless requires the State to ensure that all prisoners are detained in conditions which are compatible with respect for their human dignity, that the manner of their detention does not subject them to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in such a measure and that, given the practical demands of imprisonment, their health and well-being are adequately secured (see, for example, Poltoratskiy v. Ukraine, no. 38812/97, § 132, ECHR 2003 -V; Mouisel v. France, no. 67263/01, § 40, ECHR 2002-IX; and Kudła, cited above, §§ 92-94); furthermore, the measures taken in connection with the detention must also be necessary to attain the legitimate aim pursued ( see Frérot v. France, no. 70204/01, § 37, 12 June 2007, and Ramirez Sanchez v. France [GC], no. 59450/00, § 119, ECHR 2006- IX ). 100. In this connection, the Court observes that the applicants'deprivation of liberty was based on the sole fact that they were not in possession of a lawful residence permit. While States are entitled to detain would-be immigrants under their “undeniable ... right to control aliens'entry into and residence in their territory” ( see Amuur, cited above, § 41), this right must be exercised in accordance with the provisions of the Convention ( see Mahdid and Haddar v. Austria (dec.), no. 74762/01, 8 December 2005). The Court must have regard to the particular situation of these persons when reviewing the manner in which the detention order was implemented against the yardstick of the Convention provisions. At the same time, the Court would emphasise that Article 3 prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the victim's circumstances or conduct (see, for example, Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV). 101. The Court observes at the outset that in the present case the applicants were taken to the transit zone with a view to implementing judgments ordering their release delivered on 30 January and 3 February 2003, yet the Aliens Office, which was responsible for their transfer to the transit zone, showed no concern as to whether they would have adequate support there ( see paragraph 77 above). The Court notes that the second applicant maintained, and this was not contested by the Government, that he was placed in the transit zone without being given any explanation about the existence, functioning and location of the “ INADS Centre”, which might have been a more suitable place for him to stay for a certain time. The first applicant, who had initially been placed in the same situation, was given no information about the possibility of going to the “ INADS Centre” and was taken there only after he reported his situation to the officials of the border inspection post. After having stayed there for several hours or several days, he again found himself back in the transit zone, at the latest after the attempt to deport him on 3 February 2003, without anyone being concerned about his subsequent fate. Nor did the letter which the first applicant's lawyer sent to the Minister of the Interior complaining about his client's situation provoke any reaction on the part of that authority. Lastly, while it is clear that the applicants were regularly checked while staying in the transit zone, it appears that the persons who carried out those checks never showed any concern about their situation. 102. The Court does not subscribe to the Government's argument that the applicants had the opportunity to be accommodated on a voluntary basis at the “ INADS Centre”. First of all, that possibility was never raised in the proceedings before the President of the Court of First Instance, who examined the applicants'situation by reference to Article 3. Nor was there any reference to it in the judgment of 29 September 2005 or in the reports and observations referred to in the preceding paragraph, although those documents were drawn up only after adversarial proceedings had taken place. The Court, moreover, is surprised at the attitude of the Aliens Office during the transfer to the transit zone. Although the Aliens Office was behind the transfer and although, according to the CPT's 1997 report, the “ INADS Centre” is administered by that office, it did not place the applicants in that centre, or arrange for them to be placed there, but placed them in another part of the transit zone. However, it is apparent from the explanations provided by the parties that while that centre is within the transit zone of Brussels National Airport, it is situated, more specifically, on a lower level, at the end of “Pier B” of the new terminal. It therefore does not appear that it is easily accessible, especially for an alien newly arrived in the country and ill prepared to find his way around an international airport. The reports and observations referred to above show that these were not isolated acts on the part of the authority in question and give credence to the applicants'assertion that the Aliens Office's purpose in abandoning them in the transit zone was to compel them to leave the country voluntarily. 103. It is true that the first applicant stayed at the “ INADS Centre” shortly after arriving in the transit zone, and remained there for several hours or several days, depending on the version. He therefore had the option, according to the Government, of returning there and taking the second applicant with him. The Court cannot accept that argument. Having taken it upon itself to deprive the applicants of their liberty, the State was under a duty to ensure that they were detained in conditions compatible with respect for human dignity. It could not merely expect the applicants themselves to take the initiative in approaching the centre in order to provide for their essential needs. The Court finds that that was not of the slightest concern to the authorities in the present case ( see paragraph 101 above). The order of 30 November 2002, the judgment of 29 September 2005, the observations of the United Nations Human Rights Committee, the Federal Ombudsmen's annual report for 2004 and the CPT's 2005 report show that, far from being confined to the present case, that mode of conduct was reproduced on sufficient occasions to be characterised as a “practice” in the three last -mentioned documents. 104. The transit zone was not an appropriate place in which to detain the applicants. By its very nature it is a place designed to accommodate people for very short periods. With characteristics liable to give those detained there a feeling of solitude, with no access outside to take a walk or have physical exercise, without internal catering arrangements or contact with the outside world, the transit zone is wholly inappropriate to the needs of a stay of more than ten days. The Government accepted, moreover, that the recommendations made in that regard by the CPT had led to the establishment of the “ INADS Centre” in order to make up for those shortcomings. An interlocutory order of the President of the Brussels Court of First Instance of 25 June 1993 had already found that a placement without any support in the transit zone, “taken as a whole, has the characteristics of degrading and inhuman treatment”. On that occasion the State had been ordered to put the persons placed in the transit zone “out of sight of the public” and to provide them with bedding, meals and sanitary facilities and to ensure that they received essential medical care. The conclusion that that situation constituted inhuman and degrading treatment was also reached in the order of the President of the Nivelles Court of First Instance of 30 November 2002, the orders made in the present case and the judgment of 29 September 2005. 105. The Court also emphasises, as a subsidiary consideration, that even if it had been possible for the applicants to be taken in at the “ INADS Centre”, the findings of the CPT's 1997 report, confirmed in the 2005 report, indicate that that centre is not appropriate for stays of more than a few days, whereas the applicants were detained for more than ten days in the transit zone, which they were able to leave only after the orders of 14 February 2003. In making those findings, the CPT noted, in particular, the limited opportunities for visits and the lack of facilities for the persons detained in the centre to have access to fresh air ( see, mutatis mutandis, Poltoratskiy, cited above, § 146). 106. The Court considers it unacceptable that anyone might be detained in conditions in which there is a complete failure to take care of his or her essential needs. The fact that certain persons working in the transit zone provided for some of the applicants'needs does not in any way alter the wholly unacceptable situation which they had to endure. 107. It has not been established that there was a genuine intention to humiliate or debase the applicants. However, the absence of any such purpose cannot rule out a finding of a violation of Article 3 ( see Peers, cited above). The Court considers that the conditions which the applicants were required to endure while being detained for more than ten days caused them considerable mental suffering, undermined their dignity and made them feel humiliated and debased. On the assumption that it is true, and in so far as the applicants were given the relevant information, the mere possibility that they could be given three meals a day cannot alter that finding. 108. In addition, the humiliation which the applicants felt was exacerbated by the fact that, after obtaining a decision ordering their release, they were deprived of their liberty in a different place. In the Court's view, the feelings of arbitrariness, inferiority and anguish which must have been associated with that state of affairs compounded the degree of humiliation occasioned by the obligation to live in a public place without any support. 109. In the light of that finding, the Court does not consider it necessary to examine the brutality and insults to which the applicants claim to have been subjected by the police while they were in the transit zone. The Court notes, moreover, that at the hearing on 30 November 2006 the applicants complained of the excessive humiliation caused to them by the attitude of the police during the overly frequent checks and the attempts to deport them. They did not mention any insults or physical violence, except in connection with one particular incident, in respect of which they were very imprecise. The applicants also made allegations in their application to the Court about the attitude of the police during their transfer to Merksplas and their removal on 5 and 8 March 2003. The Court finds, however, that they did not pursue those complaints either in their written observations or at the hearing and therefore sees no reason to examine them of its own motion. 110. In the light of the foregoing, the Court considers that the fact that the applicants were detained for more than ten days in the location in issue amounted to inhuman and degrading treatment within the meaning of Article 3 of the Convention ( see, mutatis mutandis, Kaja v. Greece, no. 32927/03, 27 July 2006, and Dougoz, cited above, § 48). 111. There has therefore been a violation of Article 3 of the Convention. ... IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 114. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 115. The applicants claimed to have sustained non-pecuniary damage, which they assessed at EUR 15, 000 each. 116. The Government contended that by refusing to comply with the enforceable decisions ordering them to leave the territory the applicants were responsible for the duration of the situation of which they complained under Articles 3 and 8 of the Convention. In the alternative, the Government maintained that the evaluation of the non-pecuniary damage should be based on that made in similar cases concerning similar facts, including the Amuur case ( cited above ), where the finding of a violation had been considered to constitute sufficient redress for non-pecuniary damage, and the Shamsa case ( cited above ), where a sum of only EUR 4,000 had been awarded under that head on account of events taking place over a longer period. 117. The Court considers that both applicants undoubtedly experienced distress which cannot be made good solely by its finding of a violation. Having regard to the nature of the violations found in the present case, and ruling on an equitable basis, the Court awards EUR 15,000 to each of the applicants by way of compensation for non-pecuniary damage. B. Costs and expenses 118. The applicants sought reimbursement of the costs and expenses incurred in the proceedings before the Court. In that connection they submitted a “ fee note” in which the costs and expenses calculated on 29 October 2006 came to EUR 18,064 and the subsequent costs and expenses were assessed at EUR 4,700. 119. The Government, who observed that the applicants had provided no documentary evidence to support their claims, maintained that sums relating to costs and expenses incurred by or on behalf of the various associations could not be taken into account. While those associations were initially among the applicants, an inadmissibility decision, on the ground of incompatibility ratione personae with the provisions of the Convention, was delivered in respect of them by the Court on 21 September 2006. The Government further submitted that the amount claimed in respect of the other costs and expenses was manifestly excessive. 120. According to the Court's settled case-law, costs and expenses will not be awarded under Article 41 unless it is established that they were actually incurred, were necessarily incurred and were also reasonable as to quantum. Furthermore, legal costs are only recoverable in so far as they relate to the violation found ( see Beyeler v. Italy ( just satisfaction) [GC], no. 33202/96, § 27, 28 May 2002). The Court is of the view that, in certain respects, the claims submitted are not substantiated or are excessive. Making its assessment on an equitable basis, the Court awards EUR 15,000 for costs and expenses. That sum is to be reduced by the amount awarded by the Court by way of legal aid (EUR 1,625.40 ). C. Default interest 121. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that the applicants’ detention in the transit zone had not been lawful, in violation of Article 5 § 1 (right to liberty and security) of the Convention. It also concluded that the fact of detaining the applicants for more than ten days in the premises in question had amounted to inhuman and degrading treatment, in violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention. |
781 | Medical negligence and liability of health professionals | II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE A. Relevant German law in connection with the criminal proceedings instituted against U. 52. Pursuant to Article 222 of the German Criminal Code ( Strafgesetzbuch ) a person causing the death of another person through negligence shall be liable to imprisonment of not more than five years or a fine. Article 12 stipulates that unlawful acts punishable by a minimum sentence of less than one year ’ s imprisonment or by a fine shall be qualified as misdemeanours. Article 56 §§ 1 and 2 of the Criminal Code provides that prison sentences which do not exceed two years may be suspended and probation be granted under the conditions specified in that provision. 53. Articles 5 to 7 of the Criminal Code deal with the jurisdiction of Germany for offences committed abroad. The relevant part of Article 7 stipulates that German criminal law shall apply to offences committed abroad if the act constitutes a criminal offence at the place where it was committed and if the offender was a German national at the time he committed the offence. 54. In accordance with Article 152 of the German Code of Criminal Procedure ( Strafprozessordnung ) the public prosecution authorities shall, as a rule, be obliged to take action in relation to all prosecutable criminal offences, provided there are sufficient factual indications that an offence was committed. Article 160 stipulates that as soon as the public prosecution authorities obtain knowledge of a suspected criminal offence either through a criminal complaint or by other means it shall investigate the facts to decide whether a bill of indictment is to be issued. 55. The rules concerning a conviction of an offender by penal order are to be found in Articles 407 to 412 of the Code of Criminal Procedure. Article 407, as far as relevant, provides that in proceedings before the criminal court judge a sentence for an offence that qualifies as a misdemeanour may be imposed by a written penal order without a main hearing upon written application by the public prosecution office. The public prosecution authorities shall file such application, if they do not consider a main hearing to be necessary given the outcome of the investigations. The application shall refer to specific legal consequences. It shall constitute the formal bill of indictment. Only certain sentences may be imposed for an offence by penal order, such as, inter alia, a fine or - where the accused is represented by counsel - imprisonment not exceeding one year, provided its execution is suspended on probation. In the case of suspension on probation, it is possible to impose in addition the payment of a certain sum of money for the benefit of a non-profit organisation or the treasury (Article 56b § 2 of the Criminal Code). Article 408 § 3 stipulates that the judge shall comply with the public prosecutor ’ s application if he has no reservations about issuing the penal order. He shall set down a date for the main hearing if he has reservations about deciding the case on the basis of a written procedure, if he wishes to deviate from the public prosecutor ’ s legal assessment in the application to issue the penal order, or if he wishes to impose a legal consequence other than the one applied for by the public prosecutor and the latter disagrees. In accordance with Article 409 of the Code of Criminal Procedure the penal order shall contain information as regards, inter alia, personal data of the defendant and of any other persons involved, the offence the defendant is charged with, the time and place of its commission, the evidence on which the statement of facts and legal assessment are based as well as the legal consequences imposed. It should further advise on the possibility of filing an objection against the penal order and that the latter shall become effective and executable if no such objection is lodged within the time-limit of two weeks following its service in accordance with Article 410 of the Code of Criminal Procedure. Where no objection is lodged the penal order shall be equivalent to a final judgment. 56. Pursuant to Article 201 of the Code of Criminal Procedure the presiding judge shall communicate the bill of indictment to the persons entitled to join the prosecution as joint plaintiffs ( Nebenklagebefugte ) if they so request. Article 395 provides that a person whose children, parents, siblings, spouse or civil partner were killed through an unlawful act and thus qualify as aggrieved persons of such act may join the public prosecutor as joint plaintiffs to the prosecution ( Nebenkläger ). Pursuant to Article 396 § 1 a declaration to join in penal order proceedings shall only take effect when the judge decides to schedule a date for the main hearing. Article 400 provides that joint plaintiffs to the prosecution may not contest a judgment with the objective of another legal consequence of the offence being imposed. 57. Articles 406 d to 406 h grant aggrieved persons, including those whose children, parents, siblings, spouse or civil partner were killed through an unlawful act, certain participation rights in criminal proceedings conducted in respect of the underlying offence. Article 406d § 1 stipulates that aggrieved persons shall, upon request, be notified of the termination of the proceedings and the outcome of court proceedings to the extent they are concerned by them. According to Article 406f aggrieved persons may avail themselves of the assistance of an attorney or be represented by such attorney. Pursuant to Article 406 e § 1 counsel for the aggrieved person may inspect the files that are available to the court or the files that would be required to be submitted to the latter if public charges were preferred, as well as the officially impounded pieces of evidence, if he can demonstrate a legitimate interest in this regard. In the event the aggrieved persons are the children, parents, siblings, spouse or civil partner of the victim as referred to in Article 395 (see § 56 above), there shall be no requirement to demonstrate such legitimate interest. Article 406h § 1, in the version in force at the relevant time, stipulated that aggrieved persons should be informed of their rights following from Sections 406d to 406 g and of their right to join the public prosecution as plaintiffs under Article 395. B. Relevant German and international law in connection with the extradition proceedings instituted against U. 58. The Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002 / 584/JHA) provides in its Article 1 that Member States shall execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of the Framework Decision. Article 4 specifies that the judicial authority of a Member State may refuse to execute a European arrest warrant against a person where the latter is being prosecuted in the executing Member State for the same act as that on which the European arrest warrant is based. Pursuant to Article 3 the executing judicial authorities of a Member State shall refuse to execute a European arrest warrant if it has come to their knowledge that the requested person has been finally judged by a Member State in respect of the same acts provided that, where there has been sentence, the sentence has been served or is currently being served or may no longer be executed under the law of the sentencing Member State. 59. Pursuant to section 1 of the German Act on International Cooperation in Criminal Matters ( Gesetz über die internationale Rechtshilfe in Strafsachen (IRG) ) its provisions shall govern the relations between Germany and foreign States regarding legal assistance in criminal matters. It further specifies that provisions of international treaties shall take precedence over the provisions of the Act to the extent that they have become directly applicable in the domestic legal order. Pursuant to section 80 (1) of the Act the extradition of a German citizen to a Member State of the European Union for the purpose of prosecution shall not be admissible unless measures are in place to ensure that the requesting Member State after a final conviction to a sentence of imprisonment or other sanction will offer to return the person sought, if he so wishes, to Germany for the purpose of enforcement and unless the offence has a substantial link to the requesting Member State. The competent Higher Regional Court in Germany, acting upon application of the relevant public prosecutor, decides on the admissibility of an extradition request (see section 29 of the Act). In accordance with section 83 b (1) of the Act, extradition may be refused if criminal proceedings are pending against the person sought in Germany for the same offence as the one on which the extradition request is based. Furthermore, section 9 stipulates that extradition shall not be granted in the event the offence at issue is also subject to German jurisdiction and a domestic court or other domestic authority has rendered a final decision against the prosecuted person in this respect. THE LAW ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 60. The applicants complained under Article 2 of the Convention, read in conjunction with the State ’ s general duty under its Article 1 to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, that Germany did not provide for an adequate or effective official investigation into their father ’ s death. They further complained that the German authorities had refused to allow U. ’ s extradition to face trial in the United Kingdom. They relied in this respect on the procedural obligations inherent in Article 2 § 1 which provides in its first sentence: “1. Everyone ’ s right to life shall be protected by law. ... ” and, alternatively, on Article 8 of the Convention which reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 61. The applicants maintained in particular that the summary criminal proceedings instituted against U. in Germany had not involved a proper investigation or scrutiny of the facts of the case or the related evidence. Moreover, the German authorities had failed to inform them of the proceedings and had thus deprived the deceased ’ s next of kin of any possibility to get involved and participate in the latter. 62. The Government contested that argument. 63. The applicants further complained that U. ’ s conviction by the Witten District Court could no longer be challenged since it had become final. They relied on Article 13 in this respect, which reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 64. The Court finds that the entirety of the applicants ’ complaints relate in substance to an alleged failure by the German authorities to discharge their procedural obligations under Article 2 § 1 of the Convention and therefore falls to be examined under that provision with no separate issue arising under its Articles 8 and 13 (with respect to Article 13 see also Gray v. Germany and the United Kingdom, cited above, § 76 ). A. Admissibility 65. The Government argued that as regards part of the complaints the application was inadmissible since the applicants had failed to exhaust domestic remedies. They contended, in the alternative, that there had been no breach of Article 2 § 1 of the Convention and that the application should be rejected as being manifestly ill-founded. 66. The Government conceded that the applicants did not have available an effective remedy under German law in the meaning of Article 35 § 1 of the Convention as regards their complaint that the criminal proceedings in Germany had not involved a proper investigation into their father ’ s death. They specified in this respect that German law did not provide for a right to request particular measures of investigation by the prosecution in criminal proceedings against third parties or to challenge the investigative authorities ’ measures in such proceedings. German criminal procedure did also not grant the next of kin of a crime victim the right to challenge the decision of the prosecution authorities and the domestic courts to prosecute and convict the perpetrator of an offence which, as in the instant case, qualified as a misdemeanour in summary proceedings without a main hearing. 67. The Government submitted that, by contrast, the applicants would have had the possibility to complain about the German prosecution authorities ’ alleged failure to inform them about the proceedings against U. in their capacity as next of kin of the deceased in accordance with Article 406 d et seq. of the Code of Criminal Procedure. The Government maintained, however, that such a complaint would not have had a prospect of success since the domestic authorities had fully complied with the applicants ’ related information requests throughout the proceedings and had thus respected their related rights. 68. The applicants argued that the Government appeared to concede that they had not had available an effective domestic remedy in respect of their complaints. 69. The Court reiterates that the obligation under Article 35 requires only that an applicant should have normal recourse to the remedies likely to be effective, adequate and accessible. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was capable of providing redress in respect of the applicant ’ s complaints and offered reasonable prospects of success (see among other references, Sejdovic v. Italy [GC], no. 56581/00, §§ 45 and 46, ECHR 2006 ‑ II ). The Court notes that in the instant case the Government themselves indicated that in respect of part of the applicants ’ complaints domestic law did not provide for an effective domestic remedy whereas the available remedy in respect of the remainder of the complaints would not have had any prospect of success. 70. Having regard to the above considerations the Court dismisses the Government ’ s objection of non-exhaustion of domestic remedies. Neither does the Court find the complaints manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It accordingly declares the application admissible. B. Merits 1. The parties ’ submissions (a) The applicants 71. The applicants maintained that given the gravity of the offence committed by U., the summary written penal order proceedings conducted against him in Germany and the sentence imposed by the Witten District Court were not sufficient to discharge the procedural guarantees enshrined in Article 2 § 1. The criminal proceedings in Germany had not involved a proper investigation or scrutiny of the facts of the case or the related evidence. In this respect the applicants, whilst accepting that U. had confessed in writing that his medical malpractice had been at the origin of their father ’ s death, pointed to the fact that he had never been formally interviewed by the German prosecution authorities or trial court. 72. The applicants conceded that, in the generality of cases, and so as not to overburden the judicial system, a Member State could legitimately allocate a proportion of its criminal caseload to written proceedings. The instant case was however atypical due to its international dimension resulting from the fact that investigations had been simultaneously pending in the United Kingdom and that the British police authorities had informed their German counterparts of their continued intention to take action against U. In this context the applicants also pointed to the fact that in 2007 two incidents had been reported where locum doctors having previously trained and practised in Germany had treated patients in the United Kingdom and had administered overdoses of diamorphine from palliative care boxes to patients on two separate occasions. The applicants took the view that in an unusual and sensitive case like the present one the prosecution authorities ’ decision to apply for a conviction by penal order in summary proceedings was open to question. 73. The applicants further submitted that the Bochum prosecution authorities had not informed them of their various procedural rights in their capacity as next of kin of the deceased in accordance with Article 406 h of the Code of Criminal Procedure (see Relevant domestic and international law and practice above) which, as a consequence, had not been effective in practice. Moreover, they had not been able to exercise their right to join the public prosecutor as plaintiffs in the proceedings against U. since the prosecution authorities had omitted to notify counsel for the second applicant mandated in Germany of the termination of the investigations and of their decision to charge U. by means of an application for a penal order. Insofar as German criminal procedure did not impose an express obligation on the prosecution authorities to keep potential joint plaintiffs to the prosecution informed on the state of progress of pending (preliminary) criminal proceedings, the applicants argued that domestic law failed to give full effect to the procedural guarantees inherent in Article 2 § 1. They contended in this connection that the German authorities had concealed their intention to prosecute and convict U. in Germany with a view to preventing his extradition to the United Kingdom where he would have expected a heavier sentence for having caused their father ’ s death through negligence. (b) The Government 74. The Government argued that German legal order provided for an effective and independent judicial system with a view to establishing the cause of deaths resulting from medical malpractice and with a view to making those responsible for the death of patients accountable, in accordance with the procedural guarantees enshrined in Article 2 § 1 as specified in the Court ’ s case- law (citing Šilih v. Slovenia [GC], no. 71463/01, §§ 192 and 195, 9 April 2009, and Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 49, ECHR 2002 ‑ I). Within the framework of such judicial system, the background and circumstances of Mr Gray ’ s death had been promptly and thoroughly investigated and assessed. 75. The Government maintained that, contrary to the applicants ’ submissions, the fact that U. had been tried in summary criminal proceedings without a main hearing had had no impact on the scope and quality of the investigations underlying his conviction. Preliminary criminal proceedings leading to a suspect ’ s conviction by penal order did not differ from those that were followed by a main hearing. 76. The Government explained that pursuant to Article 407 of the Code of Criminal Procedure (see Relevant domestic and international law and practice above) the public prosecution authorities were under an obligation to apply for an accused ’ s conviction by means of a penal order if in the course of the criminal investigations in respect of a misdemeanour sufficient material had been gathered to allow a complete assessment of the case by the criminal court and a main hearing could not be expected to lead to any deviation from the investigation results. The Government contended that these requirements had been clearly met in the instant case. They further took the view that the conduct of a main hearing had also not been necessary for special or general preventive purposes ( aus Gründen der Spezial - oder Generalprävention ). They specified in this context that, having regard to the particular circumstances under which the medical malpractice leading to Mr. Gray ’ s death had occurred and the fact that U. did not have a criminal record in Germany, there had been nothing to establish that he would commit a similar error of treatment in Germany. 77. Accordingly, the prosecution authorities ’ decision to apply for U. ’ s conviction by penal order had been justified and the applicants ’ right to join the prosecution as plaintiff had not become effective pursuant to Article 396 § 1 of the Code of Criminal Procedure since no main hearing had been scheduled by the trial court (see Relevant domestic and international law and practice above). In this connection the Government pointed to the fact that potential joint plaintiffs to the prosecution did not have available a legal remedy to challenge the domestic authorities ’ decision to convict an accused in summary proceedings without a main hearing. For this reason, German criminal procedure did also not impose an obligation on the prosecution authorities to inform potential joint plaintiffs to the prosecution of their decision to apply for a penal order. 78. The Government further argued that the applicants ’ rights in their capacity as the deceased ’ s next of kin had been fully respected in the course of the criminal proceedings against U. They had been granted effective access to the investigative proceedings and had been involved in the procedure to the extent necessary to safeguard their legitimate interests in line with the requirements set out in the Court ’ s case- law. The Government maintained in this context that the applicants had been involved in the proceedings from the beginning through the intermediary of the second applicant ’ s lawyer mandated in Germany and had been informed about the proceedings instituted against U. according to their respective requests submitted to the prosecution authorities. 79. The Government concluded that the proceedings at issue had fully complied with the procedural requirements of Article 2 of the Convention. 2. The Court ’ s assessment 80. The Court reiterates that the procedural obligation of Article 2 requires the States to set up an effective independent judicial system so that the cause of death of patients in the care of the medical profession, whether in the public or the private sector, can be determined and those responsible made accountable (see, among other authorities, Šilih v. Slovenia, cited above, § 192; Powell v. the United Kingdom ( dec. ), no. 45305/99, ECHR 2000 ‑ V; and Calvelli and Ciglio, cited above, § 49 ). 81. Even if the Convention does not as such guarantee a right to have criminal proceedings instituted against third parties, the Court has said many times that the effective judicial system required by Article 2 may, and under certain circumstances must, include recourse to the criminal law. However, if the infringement of the right to life or to personal integrity is not caused intentionally, the procedural obligation imposed by Article 2 to set up an effective judicial system does not necessarily require the provision of a criminal-law remedy in every case ( see Mastromatteo v. Italy [GC], no. 37703/97, § 90, ECHR 2002 ‑ VIII). In the specific sphere of medical negligence the obligation may for instance also be satisfied if the legal system affords victims a remedy in the civil courts, either alone or in conjunction with a remedy in the criminal courts, enabling any responsibility of the medical practitioners concerned to be established and any appropriate civil redress, such as an order for damages and/or for the publication of the decision, to be obtained. Disciplinary measures may also be envisaged ( Calvelli and Ciglio, cited above, § 51; and Vo v. France [GC], no. 53924/00, § 90, ECHR 2004 ‑ VIII). 82. The State ’ s obligation under Article 2 of the Convention will not be satisfied if the protection afforded by domestic law exists only in theory: above all, it must also operate effectively in practice and that requires a prompt examination of the case without unnecessary delays (see Šilih, cited above, § 195; Calvelli and Ciglio, cited above, § 53; Lazzarini and Ghiacci v. Italy ( dec. ), no. 53749/00, 7 November 2002; Byrzykowski v. Poland, no. 11562/05, § 117, 27 June 2006 ). 83. The Court observes that in the case at hand the applicants did not in any way suggest that their father ’ s death was intentional. They also do not seem to contest that the German legal order does in principle provide for an effective independent judicial system with a view to determining the cause of death of patients in the care of the medical profession and making those responsible for an unlawful killing arising out of negligence accountable. The Government submitted in this context that in the event of a patient ’ s death as a result of medical malpractice his or her next of kin may lodge a criminal complaint against those allegedly responsible should the prosecution authorities not already have started investigations ex officio. Moreover, next of kin may bring claims in negligence against those responsible for the victim ’ s death before the civil courts with a view to obtaining compensation. In addition, depending on the circumstances of the case, professional or administrative disciplinary measures may be imposed on those answerable for the unlawful killing. 84. Turning to the circumstances of the instant case, the Court notes that the German prosecution authorities started criminal investigations into the circumstances of Mr Gray ’ s death on their own initiative in June 2008 after they had been informed about the incident in the context of a request for legal assistance made by their British counterparts. Within the scope of the ensuing preliminary criminal proceedings in Germany the cause of death and U. ’ s involvement in the underlying events were conclusively established in due course by the German investigative authorities. In cooperation with their British counterparts, German police officers heard, inter alia, representatives of U. ’ s professional indemnity insurance company, of the public health authorities at the Arnsberg District Government and the Westphalia- Lippe Medical Association as witnesses with a view to assessing U. ’ s medical qualifications and to establishing whether U. ’ s treatment of the deceased had amounted to medical malpractice. Further written evidence was provided by the Cambridegshire police, such as the post mortem report of 25 June 2008 as well as depositions made by Mr Gray ’ s partner following the latter ’ s death. The prosecution authorities also had regard to an expert opinion from a professor of Essen university hospital on the question whether the treatment of the deceased by U. had complied with medical standards and which opinion had been established having regard to the information contained in the Cambridgeshire police ’ s investigation files. The German prosecution authorities also made an attempt to interview U., who, however, availed himself of his right not to testify. The Court observes in this connection that U. had confessed in writing from the outset that his medical malpractice had been at the origin of Mr Gray ’ s death. The description of the incident given in his apology letter of 10 July 2008 to the deceased ’ s partner and the first applicant as well as in his letter of 11 March 2008 to his professional indemnity insurance company had been consistent with the testimonies obtained from the further witnesses and experts examined during the investigations. 85. In view of these circumstances, the Court is satisfied that the criminal proceedings conducted in Germany enabled the investigative authorities to determine the cause of Mr Gray ’ s death and to establish U. ’ s responsibility in this respect. Having regard to the available body of evidence taken together, the Court accepts the Government ’ s finding that the prosecution authorities ’ decision to apply for U. ’ s conviction in summary proceedings without a main hearing had been justified and that the Witten District Court had available sufficient means of evidence to proceed to a thorough assessment of the circumstances of the case and U. ’ s guilt. It further notes that there is nothing to suggest that the penal order proceedings were not conducted in accordance with domestic law or that the evidentiary conclusions reached by the prosecution authorities or the trial court had been unfounded. The Court also notes the Government ’ s argument that in view of the fact that there was nothing to establish that U. would commit a similar error of treatment when practicing as a medical doctor in Germany, there had been no grounds to exceptionally hold a main hearing with a view to enabling an enhanced public scrutiny for preventive purposes in the instant case. 86. Turning to the applicants ’ allegations that they had not been sufficiently involved in the criminal proceedings conducted in Germany against U., the Court observes that the German prosecution authorities did not inform the applicants on their own initiative about the initiation of the criminal investigations at issue. Neither did they inform them of their decision of 12 March 2009 to apply for U. ’ s conviction by means of a penal order nor did they – being approached by the second applicant ’ s lawyer – comprehensively inform the applicants themselves of all their rights. It appears that the applicants only learned about the fact that a penal order had been issued by the Witten District Court against U. on 20 March 2009 after the order had become final on 15 April 2009. 87. The Court recognises that, as submitted by the Government, pursuant to German criminal procedure the prosecution authorities were not obliged to inform the applicants on their own initiative about the initiation and progress of the proceedings against U. The Court is of the opinion that in the instant case such obligation does not follow from the procedural requirements inherent in Article 2 § 1 of the Convention. The Court reiterates in this context that it has previously held that in situations where the responsibility of State agents in connection with a victim ’ s death had been at stake, Article 2 § 1 required that within the scope of the investigations conducted by the authorities into the underlying events “the next of kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests” (see Hugh Jordan v. the United Kingdom, no. 24746/94, § 109, ECHR 2001 ‑ III (extracts), and Kelly and Others v. the United Kingdom, no. 30054/96, § 98, 4 May 2001 ). It notes that, by contrast, the present application does not concern a case where an involvement of State agents in the victim ’ s death is at issue or where the circumstances surrounding the death were suspicious or unclear. The Court further recalls that in the sphere of medical negligence the procedural obligation imposed by Article 2 does not necessarily require the provision of a criminal-law remedy and that it may therefore be arguable whether and to what extent the applicants ’ involvement as next of kin is required in the event the prosecution authorities have recourse to such a remedy on their own initiative as in the present case. The Court notes that, even assuming similar considerations as in its above cited case-law applied in the instant case, the applicants have been involved in the criminal proceedings against U. in the following manner. 88. The Court observes, firstly, that the German prosecution authorities had initiated criminal proceedings against U. ex officio in June 2008 at a time when they had not yet been aware of the applicants as possible next of kin of the victim. It notes that neither German law nor the procedural requirements inherent in Article 2 § 1 as defined in the Court ’ s case-law impose an obligation on the prosecution authorities to search on their own initiative for a victim ’ s next of kin with a view to informing them of the institution of investigations or their procedural rights in this respect. It would be particularly burdensome for the domestic authorities to comply with such an obligation in cases like the present one where the victim was a foreigner and the events at issue occurred abroad. 89. Subsequently, by letter of 1 October 2008, counsel for the second applicant practising in Germany informed the Bochum prosecution authorities that he had been mandated by a son of the deceased. He asked for information whether preliminary criminal proceedings were pending against U. and requested access to the relevant investigation files. Having reiterated his request by letter of 23 October 2008, counsel was informed by the prosecution authorities about the pending preliminary proceedings and forwarded copies of excerpts of the investigation file. The Court further notes that within the course of the preliminary proceedings the applicants had the opportunity to contribute to the investigations. For instance, on 6 November 2008 counsel for the second applicant transmitted U. ’ s apology letter of 10 July 2008 as well as TCN ’ s letter dated 17 April 2008 to the Bochum prosecution authorities for inclusion in the investigation file. 90. It follows that the applicants did in fact avail themselves of their rights as aggrieved persons in the proceedings against U. pursuant to Articles 406d to 406 g of the Code of Criminal Procedure (see Relevant domestic and international law and practice above). As contended by the Government there had thus been no need for the prosecution authorities to provide further information to the applicants in this respect, in particular in view of the fact that the latter had been represented by counsel throughout the proceedings. Having regard to the fact that U. confessed from the outset that he had negligently caused Mr Gray ’ s death through medical malpractice, it must have been evident to counsel that according to German criminal procedure U. ’ s conviction by means of a penal order had been an option in the instant case. 91. The Court finally observes that the German authorities ’ decision to convict U. in summary proceedings without previously notifying the applicants of their intention to proceed in such way did not affect the applicants ’ legitimate interests as aggrieved persons or potential joint plaintiffs to the prosecution. In this respect the Court refers to the Government ’ s submissions that as a consequence of the domestic authorities ’ justified decision to have recourse to summary proceedings and to refrain from scheduling a main hearing (see §§ 84 and 85 above ) the applicants ’ right to join the prosecution as plaintiff had not become effective pursuant to Article 396 § 1 of the Code of Criminal Procedure (see Relevant domestic and international law and practice above). The Court further accepts the Government ’ s argument that, since the circumstances of the case had been sufficiently established in the course of the investigative proceedings, a participation of the applicants in a potential main hearing, even if it might have a cathartic effect for the victim ’ s next of kin, could not have further contributed to the trial court ’ s assessment of the case. It notes in that context that the applicants have not specified which aspect of U. ’ s responsibility for medical negligence causing the applicants ’ father ’ s death has not been sufficiently clarified. Moreover, even in the event a hearing had been scheduled, pursuant to Article 400 § 1 of the Code of Criminal Procedure, the applicants would not have had the right to contest the trial court ’ s judgment with the objective of a heavier penalty being imposed on U. 92. Having regard to the above considerations, the Court considers that there is nothing to establish that the legitimate interests of the deceased ’ s next of kin were not respected in the domestic proceedings. 93. The Court observes that, in reality, the applicants complained about the fact that U. was convicted in Germany and not in the United Kingdom where he may have faced a heavier penalty. It notes in this context that the German authorities were obliged to institute criminal proceedings against U. by operation of domestic law once they had learned of his involvement in the events surrounding Mr Gray ’ s death and consequently had a basis for their decision not to extradite U. to the United Kingdom in accordance with the relevant domestic and international law. The Court would point out in this respect that the procedural guarantees enshrined in Article 2 do not entail a right or an obligation that a particular sentence be imposed on a prosecuted third party under the domestic law of a specific State. It reiterates in this connection that the procedural obligation under Article 2 is not an obligation of result but of means only (see Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 71, ECHR 2002 ‑ II, and Gray v. Germany and the United Kingdom, cited above, § 95 ). 94. The Court further finds it relevant to note that in addition to the criminal proceedings conducted against U., investigations regarding his fitness to practice as a physician had been conducted by the competent German administrative authorities. Within the scope of the investigations regarding U. ’ s fitness to practice medicine, the latter had been heard by the competent health authorities on two occasions and the applicants were granted an opportunity to provide further information on the circumstances of the case. Furthermore, as a consequence of the disciplinary proceedings instituted against U. before the Münster Administrative Court on the initiative of the Westphalia -Lippe Medical Association, the latter was reprimanded for having committed a grave error in the treatment of Mr Gray and imposed a fine. The Court recalls in this connection that in the specific sphere of medical negligence disciplinary measures may also be envisaged with a view to satisfying the procedural obligation of Article 2 (see § 81 above ). 95. The Court concludes that in the present case the German authorities have provided for effective remedies with a view to determining the cause of the applicants ’ father ’ s death as well as U. ’ s related responsibility. There is further nothing to establish that the criminal investigations and proceedings instituted on the initiative of the German authorities in relation to Mr Gray ’ s death fell short of the procedural guarantees inherent in Article 2 § 1 of the Convention. 96. There has accordingly been no violation of Article 2 of the Convention. | The Court held that there had been no violation of Article 2 (right to life) of the Convention, finding that the criminal proceedings in Germany against the doctor responsible for the applicants’ father’s death had been adequate. It accepted in particular that the German trial court had sufficient evidence available to it for the doctor’s conviction by penal order without having held a hearing. Moreover, the applicants had been sufficiently informed of the proceedings in Germany, and the German authorities had been justified in not extraditing the doctor to the United Kingdom in view of the proceedings before the German courts. |
296 | Prevention of terrorism | II. RELEVANT DOMESTIC LAW AND PRACTICE 133. Article 2 of the Gibraltar Constitution provides: "1. No person shall be deprived of his life intentionally save in execution of the sentence of a court in respect of a criminal offence of which he has been convicted. 2. A person shall not be regarded as having been deprived of his life in contravention of this section if he dies as a result of the use to such extent and in such circumstances as are permitted by law, of such force as is reasonably justifiable: (a) for the defence of any person from violence or for the defence of property; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; ... (d) in order to prevent the commission by that person of a criminal offence." 134. The relevant domestic case-law establishes that the reasonableness of the use of force has to be decided on the basis of the facts which the user of the force honestly believed to exist: this involves the subjective test as to what the user believed and an objective test as to whether he had reasonable grounds for that belief. Given that honest and reasonable belief, it must then be determined whether it was reasonable to use the force in question in the prevention of crime or to effect an arrest (see, for example, Lynch v. Ministry of Defence [1983] Northern Ireland Law Reports 216; R v. Gladstone Williams [1983] 78 Criminal Appeal Reports 276, at p. 281; and R v. Thain [1985] Northern Ireland Law Reports 457, at p. 462). 135. The test of whether the use of force is reasonable, whether in self-defence or to prevent crime or effect an arrest, is a strict one. It was described in the following terms in the report of the Royal Commission appointed to consider the law relating to indictable offences ([1879] 36 House of Lords Papers 117, at p. 167): "We take one great principle of the common law to be, that though it sanctions the defence of a man ’ s person, liberty and property against illegal violence, and permits the use of force to prevent crimes to preserve the public peace and to bring offenders to justice, yet all this is subject to the restriction that the force used is necessary; that is, that the mischief sought to be prevented could not be prevented by less violent means; and that the mischief done by or which might reasonably be anticipated from the force used is not disproportionate to the injury or mischief, which it is intended to prevent." Lord Justice McGonigal in Attorney General for Northern Ireland ’ s Reference ([1976] Northern Ireland Law Reports 169 (Court of Appeal)) stated his understanding of this approach as follows (at p. 187): "... it appears to me that, when one is considering whether force used in any particular circumstances was reasonable, the test of reasonableness should be determined in the manner set out in that paragraph. It raises two questions: (a) Could the mischief sought to be prevented have been prevented by less violent means? (b) Was the mischief done or which could reasonably be anticipated from the force used disproportionate to the injury or mischief which it was intended to prevent? These are questions to be determined objectively but based on the actions of reasonable men who act in the circumstances and in the light of the beliefs which the accused honestly believed existed and held. Force is not reasonable if (a) greater than that necessary, or (b) if the injury it causes is disproportionately greater than the evil to be prevented." 136. The document annexed to the operational order of the Commissioner of Police entitled "Firearms - rules of engagement" provided in so far as relevant: "General rules 1. Do not use more force than necessary to achieve your objective. 2. If you use firearms you should do so with care for the safety of persons in the vicinity. 3. Warning before firing (a) A warning should, if practicable, be given before opening fire. It should be as loud as possible and must include an order to stop attacking and a statement that fire will be opened if the orders are not obeyed. (b) You may fire without warning in circumstances where the giving of a warning or any delay in firing could lead to death or serious injury to a person whom it is your duty to protect, or to yourself, or to another member in your operation. 4. Opening fire You may open fire against a hostage taker (a) If he is using a firearm or any other weapon or exploding a device and there is a danger that you or any member involved in the operation, or a person whom it is your duty to protect, may be killed or seriously injured. (b) If he is about to use a firearm or any other weapon or about to explode an explosive device and his action is likely to endanger life or cause serious injury to you or another member involved in the operation, or any person whom it is your duty to protect ... 5. If he is in the course of placing an explosive charge in or near any vehicle, ship, building or installation which, if exploded, would endanger life or cause serious injury to you or another member involved in the operation or to any person whom it is your duty to protect and there is no other way to protect those in danger ..." 137. Also attached to the operational order was a guide to police officers in the use of firearms which read: "Firearms: Use by Police. The object of any police firearms operation is that the armed criminal is arrested with the least possible danger to all concerned. It is the first duty of the police to protect the general public, but the police should not endanger their lives or the lives of their colleagues for the sake of attempting to make an early arrest. The physical welfare of a criminal armed with a firearm should not be given greater consideration than that of a police officer, and unnecessary risks must not be taken by the police. In their full use of firearms, as in the use of any force, the police are controlled by the restrictions imposed by the law. The most important point which emerges from any study of the law on this subject is that the responsibility is an individual one. Any police officer who uses a firearm may be answerable to the courts or to a coroner ’ s inquest and, if his actions were unlawful (or improper), then he as an individual may be charged with murder, manslaughter or unlawful wounding. Similarly, if his use of a firearm was unlawful or negligent the individual could find himself defending a civil case in which substantial damages were being claimed against him. That a similar claim could be made against the Commissioner of Police will not relieve the individual of his liabilities. The fact that a police officer used his firearms under the orders of a superior does not, of itself, exempt him from criminal liability. When a police officer is issued with a firearm he is not thereby given any form of authority to use it otherwise than strictly in accordance with the law. Similarly, when an officer is briefed about an operation, information about a criminal may indicate that he is desperate and dangerous. Whilst this will be one of the factors to consider it does not of itself justify shooting at him. The final responsibility for his actions rests on the individual and therefore the final decision about whether a shot will or will not be fired at a particular moment can only be made by the individual. That decision must be made with a clear knowledge of the law on the subject and in the light of the conditions prevailing at the time." PROCEEDINGS BEFORE THE COMMISSION 141. The applicants lodged their application (no. 18984/91) with the Commission on 14 August 1991. They complained that the killings of Daniel McCann, Mairead Farrell and Sean Savage by members of the SAS (Special Air Service) constituted a violation of Article 2 (art. 2) of the Convention. 142. On 3 September 1993 the Commission declared the applicants ’ complaint admissible. In its report of 4 March 1994 (Article 31) (art. 31), it expressed the opinion that there had been no violation of Article 2 (art. 2) (eleven votes to six). The full text of the Commission ’ s opinion and of the three dissenting opinions contained in the report is reproduced as an annex to this judgment [3]. FINAL SUBMISSIONS TO THE COURT 143. The Government submitted that the deprivations of life to which the applications relate were justified under Article 2 para. 2 (a) (art. 2-2-a) as resulting from the use of force which was no more than absolutely necessary in defence of the people of Gibraltar from unlawful violence and the Court was invited to find that the facts disclosed no breach of Article 2 (art. 2) of the Convention in respect of any of the three deceased. 144. The applicants submitted that the Government have not shown beyond reasonable doubt that the planning and execution of the operation was in accordance with Article 2 para. 2 (art. 2-2) of the Convention. Accordingly, the killings were not absolutely necessary within the meaning of this provision (art. 2-2). AS TO THE LAW I. ALLEGED VIOLATION OF ARTICLE 2 (art. 2) OF THE CONVENTION 145. The applicants alleged that the killing of Mr McCann, Ms Farrell and Mr Savage by members of the security forces constituted a violation of Article 2 (art. 2) of the Convention which reads: "1. Everyone ’ s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2. Deprivation of life shall not be regarded as inflicted in contravention of this Article (art. 2) when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection." A. Interpretation of Article 2 (art. 2) 1. General approach 146. The Court ’ s approach to the interpretation of Article 2 (art. 2) must be guided by the fact that the object and purpose of the Convention as an instrument for the protection of individual human beings requires that its provisions be interpreted and applied so as to make its safeguards practical and effective (see, inter alia, the Soering v. the United Kingdom judgment of 7 July 1989, Series A no. 161, p. 34, para. 87, and the Loizidou v. Turkey (Preliminary Objections) judgment of 23 March 1995, Series A no. 310, p. 27, para. 72). 147. It must also be borne in mind that, as a provision (art. 2) which not only safeguards the right to life but sets out the circumstances when the deprivation of life may be justified, Article 2 (art. 2) ranks as one of the most fundamental provisions in the Convention - indeed one which, in peacetime, admits of no derogation under Article 15 (art. 15). Together with Article 3 (art. 15+3) of the Convention, it also enshrines one of the basic values of the democratic societies making up the Council of Europe (see the above-mentioned Soering judgment, p. 34, para. 88). As such, its provisions must be strictly construed. 148. The Court considers that the exceptions delineated in paragraph 2 (art. 2-2) indicate that this provision (art. 2-2) extends to, but is not concerned exclusively with, intentional killing. As the Commission has pointed out, the text of Article 2 (art. 2), read as a whole, demonstrates that paragraph 2 (art. 2-2) does not primarily define instances where it is permitted intentionally to kill an individual, but describes the situations where it is permitted to "use force" which may result, as an unintended outcome, in the deprivation of life. The use of force, however, must be no more than "absolutely necessary" for the achievement of one of the purposes set out in sub-paragraphs (a), (b) or (c) (art. 2-2-a, art. 2-2-b, art. 2-2-c) (see application no. 10044/82, Stewart v. the United Kingdom, 10 July 1984, Decisions and Reports 39, pp. 169-71). 149. In this respect the use of the term "absolutely necessary" in Article 2 para. 2 (art. 2-2) indicates that a stricter and more compelling test of necessity must be employed from that normally applicable when determining whether State action is "necessary in a democratic society" under paragraph 2 of Articles 8 to 11 (art. 8-2, art. 9-2, art. 10-2, art. 11-2) of the Convention. In particular, the force used must be strictly proportionate to the achievement of the aims set out in sub-paragraphs 2 (a), (b) and (c) of Article 2 (art. 2-2-a-b-c). 150. In keeping with the importance of this provision (art. 2) in a democratic society, the Court must, in making its assessment, subject deprivations of life to the most careful scrutiny, particularly where deliberate lethal force is used, taking into consideration not only the actions of the agents of the State who actually administer the force but also all the surrounding circumstances including such matters as the planning and control of the actions under examination. 2. The obligation to protect life in Article 2 para. 1 (art. 2-1) (a) Compatibility of national law and practice with Article 2 (art. 2) standards 151. The applicants submitted under this head that Article 2 para. 1 (art. 2-1) of the Convention imposed a positive duty on States to "protect" life. In particular, the national law must strictly control and limit the circumstances in which a person may be deprived of his life by agents of the State. The State must also give appropriate training, instructions and briefing to its soldiers and other agents who may use force and exercise strict control over any operations which may involve the use of lethal force. In their view, the relevant domestic law was vague and general and did not encompass the Article 2 (art. 2) standard of absolute necessity. This in itself constituted a violation of Article 2 para. 1 (art. 2-1). There was also a violation of this provision (art. 2-1) in that the law did not require that the agents of the State be trained in accordance with the strict standards of Article 2 para. 1 (art. 2-1). 152. For the Commission, with whom the Government agreed, Article 2 (art. 2) was not to be interpreted as requiring an identical formulation in domestic law. Its requirements were satisfied if the substance of the Convention right was protected by domestic law. 153. The Court recalls that the Convention does not oblige Contracting Parties to incorporate its provisions into national law (see, inter alia, the James and Others v. the United Kingdom judgment of 21 February 1986, Series A no. 98, p. 47, para. 84, and The Holy Monasteries v. Greece judgment of 9 December 1994, Series A no. 301-A, p. 39, para. 90). Furthermore, it is not the role of the Convention institutions to examine in abstracto the compatibility of national legislative or constitutional provisions with the requirements of the Convention (see, for example, the Klass and Others v. Germany judgment of 6 September 1978, Series A no. 28, p. 18, para. 33). 154. Bearing the above in mind, it is noted that Article 2 of the Gibraltar Constitution (see paragraph 133 above) is similar to Article 2 (art. 2) of the Convention with the exception that the standard of justification for the use of force which results in the deprivation of life is that of "reasonably justifiable" as opposed to "absolutely necessary" in paragraph 2 of Article 2 (art. 2-2). While the Convention standard appears on its face to be stricter than the relevant national standard, it has been submitted by the Government that, having regard to the manner in which the standard is interpreted and applied by the national courts (see paragraphs 134-35 above), there is no significant difference in substance between the two concepts. 155. In the Court ’ s view, whatever the validity of this submission, the difference between the two standards is not sufficiently great that a violation of Article 2 para. 1 (art. 2-1) could be found on this ground alone. 156. As regards the applicants ’ arguments concerning the training and instruction of the agents of the State and the need for operational control, the Court considers that these are matters which, in the context of the present case, raise issues under Article 2 para. 2 (art. 2-2) concerning the proportionality of the State ’ s response to the perceived threat of a terrorist attack. It suffices to note in this respect that the rules of engagement issued to the soldiers and the police in the present case provide a series of rules governing the use of force which carefully reflect the national standard as well as the substance of the Convention standard (see paragraphs 16, 18 and 136-37 above). (b) Adequacy of the inquest proceedings as an investigative mechanism 157. The applicants also submitted under this head, with reference to the relevant standards contained in the UN Force and Firearms Principles (see paragraphs 138-39 above), that the State must provide an effective ex post facto procedure for establishing the facts surrounding a killing by agents of the State through an independent judicial process to which relatives must have full access. Together with the amici curiae, Amnesty International and British-Irish Rights Watch and Others, they submitted that this procedural requirement had not been satisfied by the inquest procedure because of a combination of shortcomings. In particular, they complained that no independent police investigation took place of any aspect of the operation leading to the shootings; that normal scene-of-crime procedures were not followed; that not all eyewitnesses were traced or interviewed by the police; that the Coroner sat with a jury which was drawn from a "garrison" town with close ties to the military; that the Coroner refused to allow the jury to be screened to exclude members who were Crown servants; that the public interest certificates issued by the relevant Government authorities effectively curtailed an examination of the overall operation. They further contended that they did not enjoy equality of representation with the Crown in the course of the inquest proceedings and were thus severely handicapped in their efforts to find the truth since, inter alia, they had had no legal aid and were only represented by two lawyers; witness statements had been made available in advance to the Crown and to the lawyers representing the police and the soldiers but, with the exception of ballistic and pathology reports, not to their lawyers; they did not have the necessary resources to pay for copies of the daily transcript of the proceedings which amounted to £500-£700. 158. The Government submitted that the inquest was an effective, independent and public review mechanism which more than satisfied any procedural requirement which might be read into Article 2 para. 1 (art. 2-1) of the Convention. In particular, they maintained that it would not be appropriate for the Court to seek to identify a single set of standards by which all investigations into the circumstances of death should be assessed. Moreover, it was important to distinguish between such an investigation and civil proceedings brought to seek a remedy for an alleged violation of the right to life. Finally, they invited the Court to reject the contention by the intervenors British-Irish Rights Watch and Others that a violation of Article 2 para. 1 (art. 2-1) will have occurred whenever the Court finds serious differences between the UN Principles on Extra-Legal Executions and the investigation conducted into any particular death (see paragraph 140 above). 159. For the Commission, the inquest subjected the actions of the State to extensive, independent and highly public scrutiny and thereby provided sufficient procedural safeguards for the purposes of Article 2 (art. 2) of the Convention. 160. The Court considers that it is unnecessary to decide in the present case whether a right of access to court to bring civil proceedings in connection with deprivation of life can be inferred from Article 2 para. 1 (art. 2-1) since this is an issue which would be more appropriately considered under Articles 6 and 13 (art. 6, art. 13) of the Convention - provisions (art. 6, art. 13) that have not been invoked by the applicants. 161. The Court confines itself to noting, like the Commission, that a general legal prohibition of arbitrary killing by the agents of the State would be ineffective, in practice, if there existed no procedure for reviewing the lawfulness of the use of lethal force by State authorities. The obligation to protect the right to life under this provision (art. 2), read in conjunction with the State ’ s general duty under Article 1 (art. 2+1) of the Convention to "secure to everyone within their jurisdiction the rights and freedoms defined in [the] Convention", requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force by, inter alios, agents of the State. 162. However, it is not necessary in the present case for the Court to decide what form such an investigation should take and under what conditions it should be conducted, since public inquest proceedings, at which the applicants were legally represented and which involved the hearing of seventy-nine witnesses, did in fact take place. Moreover, the proceedings lasted nineteen days and, as is evident from the inquest ’ s voluminous transcript, involved a detailed review of the events surrounding the killings. Furthermore, it appears from the transcript, including the Coroner ’ s summing-up to the jury, that the lawyers acting on behalf of the applicants were able to examine and cross-examine key witnesses, including the military and police personnel involved in the planning and conduct of the anti-terrorist operation, and to make the submissions they wished to make in the course of the proceedings. 163. In light of the above, the Court does not consider that the alleged various shortcomings in the inquest proceedings, to which reference has been made by both the applicants and the intervenors, substantially hampered the carrying out of a thorough, impartial and careful examination of the circumstances surrounding the killings. 164. It follows that there has been no breach of Article 2 para. 1 (art. 2-1) of the Convention on this ground. B. Application of Article 2 (art. 2) to the facts of the case 1. General approach to the evaluation of the evidence 165. While accepting that the Convention institutions are not in any formal sense bound by the decisions of the inquest jury, the Government submitted that the verdicts were of central importance to any subsequent examination of the deaths of the deceased. Accordingly, the Court should give substantial weight to the verdicts of the jury in the absence of any indication that those verdicts were perverse or ones which no reasonable tribunal of fact could have reached. In this connection, the jury was uniquely well placed to assess the circumstances surrounding the shootings. The members of the jury heard and saw each of the seventy-nine witnesses giving evidence, including extensive cross-examination. With that benefit they were able to assess the credibility and probative value of the witnesses ’ testimony. The Government pointed out that the jury also heard the submissions of the various parties, including those of the lawyers representing the deceased. 166. The applicants, on the other hand, maintained that inquests are by their very nature ill-equipped to be full and detailed inquiries into controversial killings such as in the present case. Moreover, the inquest did not examine the killings from the standpoint of concepts such as "proportionality" or "absolute necessity" but applied the lesser tests of "reasonable force" or "reasonable necessity". Furthermore, the jury focused on the actions of the soldiers as they opened fire as if it were considering their criminal culpability and not on matters such as the allegedly negligent and reckless planning of the operation. 167. The Commission examined the case on the basis of the observations of the parties and the documents submitted by them, in particular the transcript of the inquest. It did not consider itself bound by the findings of the jury. 168. The Court recalls that under the scheme of the Convention the establishment and verification of the facts is primarily a matter for the Commission (Articles 28 para. 1 and 31) (art. 28-1, art. 31). Accordingly, it is only in exceptional circumstances that the Court will use its powers in this area. The Court is not, however, bound by the Commission ’ s findings of fact and remains free to make its own appreciation in the light of all the material before it (see, inter alia, the Cruz Varas and Others v. Sweden judgment of 20 March 1991, Series A no. 201, p. 29, para. 74, and the Klaas v. Germany judgment of 22 September 1993, Series A no. 269, p. 17, para. 29). 169. In the present case neither the Government nor the applicants have, in the proceedings before the Court, sought to contest the facts as they have been found by the Commission although they differ fundamentally as to the conclusions to be drawn from them under Article 2 (art. 2) of the Convention. Having regard to the submissions of those appearing before the Court and to the inquest proceedings, the Court takes the Commission ’ s establishment of the facts and findings on the points summarised in paragraphs 13 to 132 above to be an accurate and reliable account of the facts underlying the present case. 170. As regards the appreciation of these facts from the standpoint of Article 2 (art. 2), the Court observes that the jury had the benefit of listening to the witnesses at first hand, observing their demeanour and assessing the probative value of their testimony. Nevertheless, it must be borne in mind that the jury ’ s finding was limited to a decision of lawful killing and, as is normally the case, did not provide reasons for the conclusion that it reached. In addition, the focus of concern of the inquest proceedings and the standard applied by the jury was whether the killings by the soldiers were reasonably justified in the circumstances as opposed to whether they were "absolutely necessary" under Article 2 para. 2 (art. 2-2) in the sense developed above (see paragraphs 120 and 148-49 above). 171. Against this background, the Court must make its own assessment whether the facts as established by the Commission disclose a violation of Article 2 (art. 2) of the Convention. 172. The applicants further submitted that in examining the actions of the State in a case in which the use of deliberate lethal force was expressly contemplated in writing, the Court should place on the Government the onus of proving, beyond reasonable doubt, that the planning and execution of the operation was in accordance with Article 2 (art. 2) of the Convention. In addition, it should not grant the State authorities the benefit of the doubt as if its criminal liability were at stake. 173. The Court, in determining whether there has been a breach of Article 2 (art. 2) in the present case, is not assessing the criminal responsibility of those directly or indirectly concerned. In accordance with its usual practice therefore it will assess the issues in the light of all the material placed before it by the applicants and by the Government or, if necessary, material obtained of its own motion (see the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 64, para. 160, and the above-mentioned Cruz Varas and Others judgment, p. 29, para. 75). 2. Applicants ’ allegation that the killings were premeditated 174. The applicants alleged that there had been a premeditated plan to kill the deceased. While conceding that there was no evidence of a direct order from the highest authorities in the Ministry of Defence, they claimed that there was strong circumstantial evidence in support of their allegation. They suggested that a plot to kill could be achieved by other means such as hints and innuendoes, coupled with the choice of a military unit like the SAS which, as indicated by the evidence given by their members at the inquest, was trained to neutralise a target by shooting to kill. Supplying false information of the sort that was actually given to the soldiers in this case would render a fatal shooting likely. The use of the SAS was, in itself, evidence that the killing was intended. 175. They further contended that the Gibraltar police would not have been aware of such an unlawful enterprise. They pointed out that the SAS officer E gave his men secret briefings to which the Gibraltar police were not privy. Moreover, when the soldiers attended the police station after the shootings, they were accompanied by an army lawyer who made it clear that the soldiers were there only for the purpose of handing in their weapons. In addition, the soldiers were immediately flown out of Gibraltar without ever having been interviewed by the police. 176. The applicants referred to the following factors, amongst others, in support of their contention: - The best and safest method of preventing an explosion and capturing the suspects would have been to stop them and their bomb from entering Gibraltar. The authorities had their photographs and knew their names and aliases as well as the passports they were carrying; - If the suspects had been under close observation by the Spanish authorities from Malaga to Gibraltar, as claimed by the journalist, Mr Debelius, the hiring of the white Renault car would have been seen and it would have been known that it did not contain a bomb (see paragraph 128 above); - The above claim is supported by the failure of the authorities to isolate the bomb and clear the area around it in order to protect the public. In Gibraltar there were a large number of soldiers present with experience in the speedy clearance of suspect bomb sites. The only explanation for this lapse in security procedures was that the security services knew that there was no bomb in the car; - Soldier G, who was sent to inspect the car and who reported that there was a suspect car bomb, admitted during the inquest that he was not an expert in radio signal transmission (see paragraph 53 above). This was significant since the sole basis for his assessment was that the radio aerial looked older than the car. A real expert would have thought of removing the aerial to nullify the radio detonator, which could have been done without destabilising the explosive, as testified by Dr Scott. He would have also known that if the suspects had intended to explode a bomb by means of a radio signal they would not have used a rusty aerial - which would reduce the capacity to receive a clear signal - but a clean one (see paragraph 114 above). It also emerged from his evidence that he was not an explosives expert either. There was thus the possibility that the true role of Soldier G was to report that he suspected a car bomb in order to induce the Gibraltar police to sign the document authorising the SAS to employ lethal force. 177. In the Government ’ s submission it was implicit in the jury ’ s verdicts of lawful killing that they found as facts that there was no plot to kill the three terrorists and that the operation in Gibraltar had not been conceived or mounted with this aim in view. The aim of the operation was to effect the lawful arrest of the three terrorists and it was for this purpose that the assistance of the military was sought and given. Furthermore, the jury must have also rejected the applicants ’ contention that Soldiers A, B, C and D had deliberately set out to kill the terrorists, whether acting on express orders or as a result of being given "a nod and a wink". 178. The Commission concluded that there was no evidence to support the applicants ’ claim of a premeditated plot to kill the suspects. 179. The Court observes that it would need to have convincing evidence before it could conclude that there was a premeditated plan, in the sense developed by the applicants. 180. In the light of its own examination of the material before it, the Court does not find it established that there was an execution plot at the highest level of command in the Ministry of Defence or in the Government, or that Soldiers A, B, C and D had been so encouraged or instructed by the superior officers who had briefed them prior to the operation, or indeed that they had decided on their own initiative to kill the suspects irrespective of the existence of any justification for the use of lethal force and in disobedience to the arrest instructions they had received. Nor is there evidence that there was an implicit encouragement by the authorities or hints and innuendoes to execute the three suspects. 181. The factors relied on by the applicants amount to a series of conjectures that the authorities must have known that there was no bomb in the car. However, having regard to the intelligence information that they had received, to the known profiles of the three terrorists, all of whom had a background in explosives, and the fact that Mr Savage was seen to "fiddle" with something before leaving the car (see paragraph 38 above), the belief that the car contained a bomb cannot be described as either implausible or wholly lacking in foundation. 182. In particular, the decision to admit them to Gibraltar, however open to criticism given the risks that it entailed, was in accordance with the arrest policy formulated by the Advisory Group that no effort should be made to apprehend them until all three were present in Gibraltar and there was sufficient evidence of a bombing mission to secure their convictions (see paragraph 37 above). 183. Nor can the Court accept the applicants ’ contention that the use of the SAS, in itself, amounted to evidence that the killing of the suspects was intended. In this respect it notes that the SAS is a special unit which has received specialist training in combating terrorism. It was only natural, therefore, that in light of the advance warning that the authorities received of an impending terrorist attack they would resort to the skill and experience of the SAS in order to deal with the threat in the safest and most informed manner possible. 184. The Court therefore rejects as unsubstantiated the applicants ’ allegations that the killing of the three suspects was premeditated or the product of a tacit agreement amongst those involved in the operation. 3. Conduct and planning of the operation (a) Arguments of those appearing before the Court (1) The applicants 185. The applicants submitted that it would be wrong for the Court, as the Commission had done, to limit its assessment to the question of the possible justification of the soldiers who actually killed the suspects. It must examine the liability of the Government for all aspects of the operation. Indeed, the soldiers may well have been acquitted at a criminal trial if they could have shown that they honestly believed the ungrounded and false information they were given. 186. The soldiers had been told by Officer E (the attack commander) that the three suspects had planted a car bomb in Gibraltar, whereas Soldier G - the bomb-disposal expert - had reported that it was merely a suspect bomb; that it was a remote-control bomb; that each of the suspects could detonate it from anywhere in Gibraltar by the mere flicking of a switch and that they would not hesitate to do so the moment they were challenged. In reality, these "certainties" and "facts" were no more than suspicions or at best dubious assessments. However, they were conveyed as facts to soldiers who not only had been trained to shoot at the merest hint of a threat but also, as emerged from the evidence given during the inquest, to continue to shoot until they had killed their target. In sum, they submitted that the killings came about as a result of incompetence and negligence in the planning and conduct of the anti-terrorist operation to arrest the suspects as well as a failure to maintain a proper balance between the need to meet the threat posed and the right to life of the suspects. (2) The Government 187. The Government submitted that the actions of the soldiers were absolutely necessary in defence of persons from unlawful violence within the meaning of Article 2 para. 2 (a) (art. 2-2-a) of the Convention. Each of them had to make a split-second decision which could have affected a large number of lives. They believed that the movements which they saw the suspects make at the moment they were intercepted gave the impression that the terrorists were about to detonate a bomb. This evidence was confirmed by other witnesses who saw the movements in question. If it is accepted that the soldiers honestly and reasonably believed that the terrorists upon whom they opened fire might have been about to detonate a bomb by pressing a button, then they had no alternative but to open fire. 188. They also pointed out that much of the information available to the authorities and many of the judgments made by them proved to be accurate. The three deceased were an IRA active service unit which was planning an operation in Gibraltar; they did have in their control a large quantity of explosives which were subsequently found in Spain; and the nature of the operation was a car bomb. The risk to the lives of those in Gibraltar was, therefore, both real and extremely serious. 189. The Government further submitted that in examining the planning of the anti-terrorist operation it should be borne in mind that intelligence assessments are necessarily based on incomplete information since only fragments of the true picture will be known. Moreover, experience showed that the IRA were exceptionally ruthless and skilled in counter-surveillance techniques and that they did their best to conceal their intentions from the authorities. In addition, experience in Northern Ireland showed that the IRA is constantly and rapidly developing new technology. They thus had to take into account the possibility that the terrorists might be equipped with more sophisticated or more easily concealable radio-controlled devices than the IRA had previously been known to use. Finally, the consequences of underestimating the threat posed by the active service unit could have been catastrophic. If they had succeeded in detonating a bomb of the type and size found in Spain, everyone in the car-park would have been killed or badly maimed and grievous injuries would have been caused to those in adjacent buildings, which included a school and an old-people ’ s home. 190. The intelligence assessments made in the course of the operation were reasonable ones to make in the light of the inevitably limited amount of information available to the authorities and the potentially devastating consequences of underestimating the terrorists ’ abilities and resources. In this regard the Government made the following observations: - It was believed that a remote-controlled device would be used because it would give the terrorists a better chance of escape and would increase their ability to maximise the proportion of military rather than civilian casualties. Moreover, the IRA had used such a device in Brussels only six weeks before. - It was assumed that any remote-control such as that produced to the Court would be small enough to be readily concealed about the person. The soldiers themselves successfully concealed radios of a similar size about their persons. - As testified by Captain Edwards at the inquest, tests carried out demonstrated that a bomb in the car-park could have been detonated from the spot where the terrorists were shot (see paragraph 116 above). - Past experience strongly suggested that the terrorists ’ detonation device might have been operated by pressing a single button. - As explained by Witness O at the inquest, the use of a blocking car would have been unnecessary because the terrorists would not be expected to have any difficulty in finding a free space on 8 March. It was also dangerous because it would have required two trips into Gibraltar, thereby significantly increasing the risk of detection (see paragraph 23 (point (e) above). - There was no reason to doubt the bona fides of Soldier G ’ s assessment that the car was a suspect car bomb. In the first place his evidence was that he was quite familiar with car bombs. Moreover, the car had been parked by a known bomb-maker who had been seen to "fiddle" with something between the seats and the car aerial appeared to be out of place. IRA car bombs had been known from experience to have specially-fitted aerials and G could not say for certain from an external examination that the car did not contain a bomb (see paragraph 48 above). Furthermore, all three suspects appeared to be leaving Gibraltar. Finally the operation of cordoning off the area around the car began only twenty minutes after the above assessment had been made because of the shortage of available manpower and the fact that the evacuation plans were not intended for implementation until 7 or 8 March. - It would have been reckless for the authorities to assume that the terrorists might not have detonated their bomb if challenged. The IRA were deeply committed terrorists who were, in their view, at war with the United Kingdom and who had in the past shown a reckless disregard for their own safety. There was still a real risk that if they had been faced with a choice between an explosion causing civilian casualties and no explosion at all, the terrorists would have preferred the former. (3) The Commission 191. The Commission considered that, given the soldiers ’ perception of the risk to the lives of the people of Gibraltar, the shooting of the three suspects could be regarded as absolutely necessary for the legitimate aim of the defence of others from unlawful violence. It also concluded that, having regard to the possibility that the suspects had brought in a car bomb which, if detonated, would have occasioned the loss of many lives and the possibility that the suspects could have been able to detonate it when confronted by the soldiers, the planning and execution of the operation by the authorities did not disclose any deliberate design or lack of proper care which might have rendered the use of lethal force disproportionate to the aim of saving lives. (b) The Court ’ s assessment (1) Preliminary considerations 192. In carrying out its examination under Article 2 (art. 2) of the Convention, the Court must bear in mind that the information that the United Kingdom authorities received that there would be a terrorist attack in Gibraltar presented them with a fundamental dilemma. On the one hand, they were required to have regard to their duty to protect the lives of the people in Gibraltar including their own military personnel and, on the other, to have minimum resort to the use of lethal force against those suspected of posing this threat in the light of the obligations flowing from both domestic and international law. 193. Several other factors must also be taken into consideration. In the first place, the authorities were confronted by an active service unit of the IRA composed of persons who had been convicted of bombing offences and a known explosives expert. The IRA, judged by its actions in the past, had demonstrated a disregard for human life, including that of its own members. Secondly, the authorities had had prior warning of the impending terrorist action and thus had ample opportunity to plan their reaction and, in co-ordination with the local Gibraltar authorities, to take measures to foil the attack and arrest the suspects. Inevitably, however, the security authorities could not have been in possession of the full facts and were obliged to formulate their policies on the basis of incomplete hypotheses. 194. Against this background, in determining whether the force used was compatible with Article 2 (art. 2), the Court must carefully scrutinise, as noted above, not only whether the force used by the soldiers was strictly proportionate to the aim of protecting persons against unlawful violence but also whether the anti-terrorist operation was planned and controlled by the authorities so as to minimise, to the greatest extent possible, recourse to lethal force. The Court will consider each of these points in turn. (2) Actions of the soldiers 195. It is recalled that the soldiers who carried out the shooting (A, B, C and D) were informed by their superiors, in essence, that there was a car bomb in place which could be detonated by any of the three suspects by means of a radio-control device which might have been concealed on their persons; that the device could be activated by pressing a button; that they would be likely to detonate the bomb if challenged, thereby causing heavy loss of life and serious injuries, and were also likely to be armed and to resist arrest (see paragraphs 23, 24-27, and 28-31 above). 196. As regards the shooting of Mr McCann and Ms Farrell, the Court recalls the Commission ’ s finding that they were shot at close range after making what appeared to Soldiers A and B to be threatening movements with their hands as if they were going to detonate the bomb (see paragraph 132 above). The evidence indicated that they were shot as they fell to the ground but not as they lay on the ground (see paragraphs 59-67 above). Four witnesses recalled hearing a warning shout (see paragraph 75 above). Officer P corroborated the soldiers ’ evidence as to the hand movements (see paragraph 76 above). Officer Q and Police Constable Parody also confirmed that Ms Farrell had made a sudden, suspicious move towards her handbag (ibid.). 197. As regards the shooting of Mr Savage, the evidence revealed that there was only a matter of seconds between the shooting at the Shell garage (McCann and Farrell) and the shooting at Landport tunnel (Savage). The Commission found that it was unlikely that Soldiers C and D witnessed the first shooting before pursuing Mr Savage who had turned around after being alerted by either the police siren or the shooting (see paragraph 132 above). Soldier C opened fire because Mr Savage moved his right arm to the area of his jacket pocket, thereby giving rise to the fear that he was about to detonate the bomb. In addition, Soldier C had seen something bulky in his pocket which he believed to be a detonating transmitter. Soldier D also opened fire believing that the suspect was trying to detonate the supposed bomb. The soldiers ’ version of events was corroborated in some respects by Witnesses H and J, who saw Mr Savage spin round to face the soldiers in apparent response to the police siren or the first shooting (see paragraphs 83 and 85 above). The Commission found that Mr Savage was shot at close range until he hit the ground and probably in the instant as or after he had hit the ground (see paragraph 132 above). This conclusion was supported by the pathologists ’ evidence at the inquest (see paragraph 110 above). 198. It was subsequently discovered that the suspects were unarmed, that they did not have a detonator device on their persons and that there was no bomb in the car (see paragraphs 93 and 96 above). 199. All four soldiers admitted that they shot to kill. They considered that it was necessary to continue to fire at the suspects until they were rendered physically incapable of detonating a device (see paragraphs 61, 63, 80 and 120 above). According to the pathologists ’ evidence Ms Farrell was hit by eight bullets, Mr McCann by five and Mr Savage by sixteen (see paragraphs 108-10 above). 200. The Court accepts that the soldiers honestly believed, in the light of the information that they had been given, as set out above, that it was necessary to shoot the suspects in order to prevent them from detonating a bomb and causing serious loss of life (see paragraph 195 above). The actions which they took, in obedience to superior orders, were thus perceived by them as absolutely necessary in order to safeguard innocent lives. It considers that the use of force by agents of the State in pursuit of one of the aims delineated in paragraph 2 of Article 2 (art. 2-2) of the Convention may be justified under this provision (art. 2-2) where it is based on an honest belief which is perceived, for good reasons, to be valid at the time but which subsequently turns out to be mistaken. To hold otherwise would be to impose an unrealistic burden on the State and its law-enforcement personnel in the execution of their duty, perhaps to the detriment of their lives and those of others. It follows that, having regard to the dilemma confronting the authorities in the circumstances of the case, the actions of the soldiers do not, in themselves, give rise to a violation of this provision (art. 2-2). 201. The question arises, however, whether the anti-terrorist operation as a whole was controlled and organised in a manner which respected the requirements of Article 2 (art. 2) and whether the information and instructions given to the soldiers which, in effect, rendered inevitable the use of lethal force, took adequately into consideration the right to life of the three suspects. (3) Control and organisation of the operation 202. The Court first observes that, as appears from the operational order of the Commissioner, it had been the intention of the authorities to arrest the suspects at an appropriate stage. Indeed, evidence was given at the inquest that arrest procedures had been practised by the soldiers before 6 March and that efforts had been made to find a suitable place in Gibraltar to detain the suspects after their arrest (see paragraphs 18 and 55 above). 203. It may be questioned why the three suspects were not arrested at the border immediately on their arrival in Gibraltar and why, as emerged from the evidence given by Inspector Ullger, the decision was taken not to prevent them from entering Gibraltar if they were believed to be on a bombing mission. Having had advance warning of the terrorists ’ intentions it would certainly have been possible for the authorities to have mounted an arrest operation. Although surprised at the early arrival of the three suspects, they had a surveillance team at the border and an arrest group nearby (see paragraph 34 above). In addition, the Security Services and the Spanish authorities had photographs of the three suspects, knew their names as well as their aliases and would have known what passports to look for (see paragraph 33 above). 204. On this issue, the Government submitted that at that moment there might not have been sufficient evidence to warrant the detention and trial of the suspects. Moreover, to release them, having alerted them to the authorities ’ state of awareness but leaving them or others free to try again, would obviously increase the risks. Nor could the authorities be sure that those three were the only terrorists they had to deal with or of the manner in which it was proposed to carry out the bombing. 205. The Court confines itself to observing in this respect that the danger to the population of Gibraltar - which is at the heart of the Government ’ s submissions in this case - in not preventing their entry must be considered to outweigh the possible consequences of having insufficient evidence to warrant their detention and trial. In its view, either the authorities knew that there was no bomb in the car - which the Court has already discounted (see paragraph 181 above) - or there was a serious miscalculation by those responsible for controlling the operation. As a result, the scene was set in which the fatal shooting, given the intelligence assessments which had been made, was a foreseeable possibility if not a likelihood. The decision not to stop the three terrorists from entering Gibraltar is thus a relevant factor to take into account under this head. 206. The Court notes that at the briefing on 5 March attended by Soldiers A, B, C, and D it was considered likely that the attack would be by way of a large car bomb. A number of key assessments were made. In particular, it was thought that the terrorists would not use a blocking car; that the bomb would be detonated by a radio-control device; that the detonation could be effected by the pressing of a button; that it was likely that the suspects would detonate the bomb if challenged; that they would be armed and would be likely to use their arms if confronted (see paragraphs 23-31 above). 207. In the event, all of these crucial assumptions, apart from the terrorists ’ intentions to carry out an attack, turned out to be erroneous. Nevertheless, as has been demonstrated by the Government, on the basis of their experience in dealing with the IRA, they were all possible hypotheses in a situation where the true facts were unknown and where the authorities operated on the basis of limited intelligence information. 208. In fact, insufficient allowances appear to have been made for other assumptions. For example, since the bombing was not expected until 8 March when the changing of the guard ceremony was to take place, there was equally the possibility that the three terrorists were on a reconnaissance mission. While this was a factor which was briefly considered, it does not appear to have been regarded as a serious possibility (see paragraph 45 above). In addition, at the briefings or after the suspects had been spotted, it might have been thought unlikely that they would have been prepared to explode the bomb, thereby killing many civilians, as Mr McCann and Ms Farrell strolled towards the border area since this would have increased the risk of detection and capture (see paragraph 57 above). It might also have been thought improbable that at that point they would have set up the transmitter in anticipation to enable them to detonate the supposed bomb immediately if confronted (see paragraph 115 above). Moreover, even if allowances are made for the technological skills of the IRA, the description of the detonation device as a "button job" without the qualifications subsequently described by the experts at the inquest (see paragraphs 115 and 131 above), of which the competent authorities must have been aware, over-simplifies the true nature of these devices. 209. It is further disquieting in this context that the assessment made by Soldier G, after a cursory external examination of the car, that there was a "suspect car bomb" was conveyed to the soldiers, according to their own testimony, as a definite identification that there was such a bomb (see paragraphs 48, and 51-52 above). It is recalled that while Soldier G had experience in car bombs, it transpired that he was not an expert in radio communications or explosives; and that his assessment that there was a suspect car bomb, based on his observation that the car aerial was out of place, was more in the nature of a report that a bomb could not be ruled out (see paragraph 53 above). 210. In the absence of sufficient allowances being made for alternative possibilities, and the definite reporting of the existence of a car bomb which, according to the assessments that had been made, could be detonated at the press of a button, a series of working hypotheses were conveyed to Soldiers A, B, C and D as certainties, thereby making the use of lethal force almost unavoidable. 211. However, the failure to make provision for a margin of error must also be considered in combination with the training of the soldiers to continue shooting once they opened fire until the suspect was dead. As noted by the Coroner in his summing-up to the jury at the inquest, all four soldiers shot to kill the suspects (see paragraphs 61, 63, 80 and 120 above). Soldier E testified that it had been discussed with the soldiers that there was an increased chance that they would have to shoot to kill since there would be less time where there was a "button" device (see paragraph 26 above). Against this background, the authorities were bound by their obligation to respect the right to life of the suspects to exercise the greatest of care in evaluating the information at their disposal before transmitting it to soldiers whose use of firearms automatically involved shooting to kill. 212. Although detailed investigation at the inquest into the training received by the soldiers was prevented by the public interest certificates which had been issued (see paragraph 104, at point 1. (iii) above), it is not clear whether they had been trained or instructed to assess whether the use of firearms to wound their targets may have been warranted by the specific circumstances that confronted them at the moment of arrest. Their reflex action in this vital respect lacks the degree of caution in the use of firearms to be expected from law enforcement personnel in a democratic society, even when dealing with dangerous terrorist suspects, and stands in marked contrast to the standard of care reflected in the instructions in the use of firearms by the police which had been drawn to their attention and which emphasised the legal responsibilities of the individual officer in the light of conditions prevailing at the moment of engagement (see paragraphs 136 and 137 above). This failure by the authorities also suggests a lack of appropriate care in the control and organisation of the arrest operation. 213. In sum, having regard to the decision not to prevent the suspects from travelling into Gibraltar, to the failure of the authorities to make sufficient allowances for the possibility that their intelligence assessments might, in some respects at least, be erroneous and to the automatic recourse to lethal force when the soldiers opened fire, the Court is not persuaded that the killing of the three terrorists constituted the use of force which was no more than absolutely necessary in defence of persons from unlawful violence within the meaning of Article 2 para. 2 (a) (art. 2-2-a) of the Convention. 214. Accordingly, the Court finds that there has been a breach of Article 2 (art. 2) of the Convention. II. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION 215. Article 50 (art. 50) of the Convention provides as follows: "If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party." 216. The applicants requested the award of damages at the same level as would be awarded under English law to a person who was unlawfully killed by agents of the State. They also asked, in the event of the Court finding that the killings were both unlawful and deliberate or were the result of gross negligence, exemplary damages at the same level as would be awarded under English law to a relative of a person killed in similar circumstances. 217. As regards costs and expenses, they asked for all costs arising directly or indirectly from the killings, including the costs of relatives and lawyers attending the Gibraltar inquest and all Strasbourg costs. The solicitor ’ s costs and expenses in respect of the Gibraltar inquest are estimated at £56,200 and his Strasbourg costs at £28,800. Counsel claimed £16,700 in respect of Strasbourg costs and expenses. 218. The Government contended that, in the event of a finding of a violation, financial compensation in the form of pecuniary and non-pecuniary damages would be unnecessary and inappropriate. As regards the costs incurred before the Strasbourg institutions, they submitted that the applicants should be awarded only the costs actually and necessarily incurred by them and which were reasonable as to quantum. However, as regards the claim for costs in respect of the Gibraltar inquest, they maintained that (1) as a point of principle, the costs of the domestic proceedings, including the costs of the inquest, should not be recoverable under Article 50 (art. 50); (2) since the applicants ’ legal representatives acted free of charge, there can be no basis for an award to the applicants; (3) in any event, the costs claimed were not calculated on the basis of the normal rates of the solicitor concerned. A. Pecuniary and non-pecuniary damage 219. The Court observes that it is not clear from the applicants ’ submissions whether their claim for financial compensation is under the head of pecuniary or non-pecuniary damages or both. In any event, having regard to the fact that the three terrorist suspects who were killed had been intending to plant a bomb in Gibraltar, the Court does not consider it appropriate to make an award under this head. It therefore dismisses the applicants ’ claim for damages. B. Costs and expenses 220. The Court recalls that, in accordance with its case-law, it is only costs which are actually and necessarily incurred and reasonable as to quantum that are recoverable under this head. 221. As regards the Gibraltar costs, the applicants stated in the proceedings before the Commission that their legal representatives had acted free of charge. In this connection, it has not been claimed that they are under any obligation to pay the solicitor the amounts claimed under this item. In these circumstances, the costs cannot be claimed under Article 50 (art. 50) since they have not been actually incurred. 222. As regards the costs and expenses incurred during the Strasbourg proceedings, the Court, making an equitable assessment, awards £22,000 and £16,700 in respect of the solicitor ’ s and counsel ’ s claims respectively, less 37,731 French francs received by way of legal aid from the Council of Europe. | The Court held that there had been a violation of Article 2 (right to life) of the Convention because the operation could have been planned and controlled without the need to kill the suspects. |
16 | Taking of children into care | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Russian Family Code 1. Legal provision concerning protection of children ’ s rights 61. Article 54 provides that every child, that is to say a person under the age of 18 years, has a right to live and to be brought up in a family, in so far as possible, a right to know his or her parents, a right to their care, a right to live together with them, except where it is contrary to his or her interests. 62. Article 55 entitles a child to maintain contact with his or her parents, grandparents, brothers, sisters and other relatives. 63. By virtue of Article 57, a child is entitled to express his or her opinion on all family matters concerning him or her, including in the course of any judicial proceedings. The opinion of a child over ten years old must be taken into account, except where it is contrary to his or her interests. 2. Legal provisions concerning parents ’ rights and obligations 64. Article 63 provides that the parents ’ right to bring up their children has precedence over such a right of any other person. 65. Article 6 4 establishes that children ’ s rights and interests must be protected by their parents. The parents are entitled to act as legal representatives of their children and to protect their rights and interests in the children ’ s relations with any individuals or legal entities, including before the courts. The second part of the Article provides that parents have no right to represent their children if a competent childcare authority establishes the existence of a conflict between the parents ’ interests and those of their children. If this is the case, the childcare authority has an obligation to appoint a representative for the protection of the children ’ s rights and interests. 66. By virtue of Article 67, grandparents, brothers, sisters and other relatives are entitled to maintain contact with the child. If the parents, or one of them, prevent close relatives from seeing the child, a childcare authority may order that contact be maintained between the child and the relative in question. If the parents do not comply with the childcare authority ’ s order, the relative concerned or the childcare authority may apply to a court for a contact order. The court must take a decision in the child ’ s interests and must take the child ’ s opinion into account. If the parents do not comply with the contact order issued by a court, they may be held liable in accordance with the law. 67. Article 68 vests in the parents a right to seek the return of their child from any person who retains the child not on the basis of law or not in accordance with a court decision. In the event of a dispute, the parents are entitled to lodge a court claim for protection of their rights. When examining that claim, the court, with due regard to the child ’ s opinion, is entitled to reject the claim if it finds that the child ’ s transfer to the parents is contrary to the child ’ s interests. 68. Article 69 establishes that a parent may be deprived of parental authority if he or she avoids parental obligations, such as the obligation to pay child maintenance; refuses to collect the child from the maternity hospital, any other medical, educational, social or similar institution; abuses parental authority; mistreats the child by resorting to physical or psychological violence or sexual abuse; suffers from chronic alcohol or drug abuse; or has committed a premeditated criminal offence against the life or health of his or her children or spouse. 3. Legal provisions governing guardianship 69. Article 148.1 provides, in particular, that the rights and obligations of a legal guardian are set in place by the Federal Law “On Guardianship” (see paragraph 70 below). It further provides that, unless it is provided otherwise in a federal law, the parents or persons replacing them forfeit their rights and obligations to represent and protect the child ’ s rights and lawful interests from the moment when a guardian receives such rights and obligations. It also establishes that a legal guardian is not entitled to obstruct a child ’ s contact with his or her parents and other relatives, except where it is contrary to the child ’ s interests. B. Federal Law “On Guardianship” 70. Federal Law no. 48-FZ “On Guardianship” of 24 April 2008 ( Федеральный закон от 24 апреля 2008 № 48- ФЗ « Об опеке и попечительстве » ) provides in it section 15(2) that guardians are legal representatives of the children placed in their care and are entitled to act on their behalf for the protection of their rights and lawful interests without any formal authorisation. C. Ruling of the Supreme Court of Russia 71. In its ruling no. 10 on the application by the courts of legislation when resolving disputes concerning upbringing of children, dated 27 May 1998, as amended on 6 February 2007, the Plenary of the Supreme Court of Russia stated, in particular: “ ... 6. In accordance with the law, the parents ’ right to bring up their children has precedence over such a right of any other person (Article 63 § 1 of the Russian Family Code), and they are entitled to seek the return of their child from any person who retains the child not on the basis of law nor pursuant to a court decision (Article 68 § 1 (1) of the Russian Family Code). At the same time, a court is entitled, with due regard to the child ’ s opinion, to reject a parent ’ s claim if it finds that the child ’ s transfer to the parent is contrary to the child ’ s interests ... When examining such cases, the court takes into account whether there is a realistic possibility for a parent duly to bring the child up; the nature of the relations between the parent and the child, the child ’ s attachment to the individuals with whom he or she is living at that time, and other particular circumstances relevant for securing adequate conditions of the child ’ s living and upbringing by his or her parents as well as by the individuals with whom the minor is actually living and being brought up by ... 7. When examining parents ’ claims for the return of their children from individuals with whom [the children] remain on the basis of the law or in accordance with a court decision (guardians, foster parents ... ), it is necessary to find out whether the circumstances, which were the grounds for the transfer of a child to those individuals ..., have changed by the time the case is being examined, and whether the children ’ s return to their parents would be in their interests ”. THE LAW I. PRELIMINARY ISSUE 72. The first applicant lodged the present application on behalf of R., alleging a violation of his rights under Articles 3 and 8 of the Convention, and under Article 14 taken in conjunction with Article 8 of the Convention. She argued that the conditions governing the individual applications under the Convention were not necessarily the same as the national criteria relating to locus standi ( referring to A.K. and L. v. Croatia, no. 37956/11, § 46, 8 January 2013), and that a restrictive or purely technical approach to the issue of locus standi must be avoided ( S.P., D.P. and A. T. v. the United Kingdom, no. 23715/94, Commission decision of 20 May 1996, unreported ). In that connection, the first applicant insisted that she and R. had developed emotional ties that were equivalent to those between a mother and her child. The first applicant stressed that, unlike in the case cited by the Government, she had been taking care of R. for a very prolonged period, and more specifically during the first nine years of his life; during that period she had remained the only significant adult in his life. Moreover, during that period, she had had a formal legal link to R., having been his guardian. The first applicant further insisted that there was no conflict of interest between her and R., and that R. ’ s biological parents were not in a position to protect effectively his interests in the present case, given the issues it raised. The first applicant compared the situation in the present case with cases brought on children ’ s behalf by their natural parents deprived of the parental authority over those children, and argued that there was a danger that otherwise R. ’ s interests would never be brought to the Court ’ s attention. 73. The Government contested the first applicant ’ s standing to represent R. before the Court, with reference to the cases of Moretti and Benedetti v. Italy (no. 16318/07, 27 April 2010) and Giusto and Others v. Italy (( dec. ), no. 38972/06, ECHR 2007-V). They pointed out that, once her guardianship over the child had been terminated, the first applicant had lost any entitlement under domestic law to act as his legal representative. R. ’ s biological parents had full parental authority over him and were his legal representatives. They had never authorised the first applicant to represent R. before the Court. Therefore the part of the application lodged by the first applicant on R. ’ s behalf was incompatible ratione personae with the relevant provisions of the Convention. 74. The Court reiterates that the position of children under Article 34 of the Convention calls for careful consideration, as children must generally rely on other individuals to present their claims and represent their interests, and may not be of an age or capacity to authorise any steps to be taken on their behalf in any real sense (see A.K. and L. v. Croatia, cited above, § 47, and P.C. and S. v. the United Kingdom ( dec. ), no. 56547/00, 11 November 2001). It is necessary to avoid a restrictive and purely technical approach in this area; in particular, consideration must be given to the links between the child in question and his or her “representatives”, to the subject-matter and the purpose of the application and to the possibility of a conflict of interests (see S.P ., D.P. and A. T. v. the United Kingdom ( dec. ), cited above; Giusto and Others ( dec. ), cited above; and Moretti and Benedetti, cited above, § 32). 75. In the present case, the Court observes at the outset that the first applicant is not biologically related to R. Her situation is therefore different from the cases where the Court acknowledged natural parents ’ standing to act on behalf of their children in whose respect they had been deprived of their parental authority; in the latter connection, the Court has held that it was in principle in the interest of children to preserve ties with their biological parents (see A.K. and L. v. Croatia, cited above, §§ 48-49, with further references). The Court further observes that the first applicant is no longer R. ’ s guardian, as her guardianship was definitively withdrawn by the court decision of 4 May 2010, as upheld on appeal on 23 June 2010 (see paragraphs 46 and 49 above), with the result that she no longer has legal status to act on his behalf in the context of judicial or other proceedings at the domestic level. Furthermore, R. has been transferred to, and is now living with, his parents, who have full parental authority over him, which includes, among other things, the representation of the minor ’ s interests. They have never authorised the first applicant to represent R. before the Court. Lastly, in view of R. ’ s serious medical conditions, he is clearly not in a position to express himself on the issue. 76. In such circumstances, the Court is bound to conclude that the first applicant does not have standing to act before the Court on R. ’ s behalf. This part of the application must therefore be dismissed as incompatible ratione personae with the Convention provisions, in accordance with Article 35 §§ 3 and 4 thereof. II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 77. The applicants complained that the decisions of the national authorities to return R. to his biological parents, terminate her guardianship and to refuse them contact with him had amounted to a breach of Article 8 of the Convention, which, in its relevant part, reads as follows: “1. Everyone has the right to respect for his private and family life ... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 1. The first applicant ’ s standing to lodge the present application on behalf of the second, third and eighth applicants (a) Submissions by the parties 78. In the initial set of their observations of 22 January 2013, the Government disputed the first applicant ’ s standing to lodge the present application on the second applicant ’ s behalf. They pointed out that the second applicant, who, according to the Government, had been born on 15 April 199 4 (as indicated in the Government ’ s initial observations), or on 15 April 1995 (as indicated in the Government ’ s additional observations of 29 April 2013 ) had reached the age of majority, when, by virtue of the relevant domestic law, the first applicant had ceased to be her guardian, had lost any legal link with her and had thus no authority to act on her behalf either at the domestic or international level. In their additional observations of 29 April 2013, the Government raised the same objection in respect of the third and eighth applicants. They argued, in particular, that the first applicant was no longer authorised to act on behalf of the eighth applicant, who, in the Government ’ s submission, had been born on 29 April 1993; and as of 4 May 2013 had no longer been authorised to act on behalf of the third applicant, who had been born on 4 May 1995. 79. The applicants submitted that the second applicant ( born on 1 April 1994 ) had turned 18 years old on 1 April 2012, and had thus gained full legal capacity to participate in the proceedings before the Court. The second applicant had submitted a power of attorney authorising the first applicant to represent her interests before the Court. (b) The Court ’ s assessment 80. The Court observes that the question of the first applicant ’ s standing to lodge the present application on behalf of the second, third and eight applicants is directly linked to its competence ratione personae to examine that part of the application. It has to satisfy itself that it has jurisdiction in any case brought before it, and it is therefore obliged to examine the question of its jurisdiction at each stage of the proceedings (see Blečić v. Croatia [GC], no. 59532/00, § 67, ECHR 2006-III; Uslu v. Turkey (no. 2), no. 23815/04, § 18, 20 January 2009; Boucke v. Montenegro, no. 26945/06, § 63, 21 February 2012; and Buzadji v. the Republic of Moldova [GC], no. 23755/07, § 70, 5 July 2016 ). 81. It further notes that, on 6 December 2010, the date when the present application was lodged, the second, third and eighth applicants were minors and the first applicant was their guardian thus having full authority to represent their interests and to act on their behalf. 82. Furthermore, in reply to the Government ’ s initial observations of 22 January 2013, the second applicant, who had come of age on 1 April 2012, confirmed her intention to pursue the application and signed a power of attorney authorising the first applicant to represent her in the proceedings before the Court. 83. As regards the third and eighth applicants, on 29 April 201 3 – the date of the submission by the Government of their additional observations and comments on the applicants ’ claims for just satisfaction – the third applicant ( born on 4 May 1995 ) was still a minor. Moreover, whilst the Government argued, without submitting any documentary evidence, that the eighth applicant had been born on 29 April 1993, the Court observes that, the documents enclosed by the applicants with their application form reveal that his actual date of birth is 29 April 2003. It is thus clear that, on when the parties completed the exchange of their observations in the present case, the third and eighth applicants were minors, and thus were not required to confirm their interest in pursuing the present application or to authorise formally the first applicant to represent their interests before the Court, as the first applicant, as their guardian (her legal status has not been disputed by the Government on any other grounds ), had standing to act on their behalf before the Court. 84. Against that background, the Court is satisfied that the first applicant had standing to represent the second, third and eighth applicants in the present case. It concludes that, in so far as the application was lodged by the first applicant on their behalf, it is compatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) of the Convention. 2. Exhaustion of domestic remedies 85. In their additional observations of 29 April 2013, the Government briefly submitted that, the court claim for access to R. had been lodged by the first applicant on her behalf only. 86. In so far as this argument may be understood as an objection as to the admissibility for failure to exhaust available domestic remedies of this part of the application in respect of the second to eighth applicants, the Court reiterates that, pursuant to Rule 55 of the Rules of Court, any plea of inadmissibility must, in so far as its character and the circumstances permit, be raised by the respondent Contracting Party in its written or oral observations on the admissibility of the application (see Buzadji, cited above, § 64). It notes that the Government did not raise this objection in their initial observations of 22 January 2013 on the admissibility and merits of the application; nor did it provide any explanation for that delay, or refer to any exceptional circumstance capable of exempting them from their obligation to raise an objection to admissibility in a timely manner. 87. They are therefore unable to rely on a failure to exhaust domestic remedies at this stage of the proceedings (see Topal v. Republic of Moldova, no. 12257/06, § 27, 3 July 2018, and the authorities cited therein). 3. Existence of a “family life” between the applicants and R. (a) Submissions by the parties 88. The Government argued that the “family life”, within the meaning of Article 8 of the Convention, between the applicants and R. had only existed as long as the first applicant had officially remained R. ’ s guardian. They furthermore stressed that during that period R. had not lost ties with his natural parents, who, as the domestic courts had established, had not failed in their parental duties, and had provided financial support to him. In such circumstances, in the Government ’ s opinion, the applicant ’ s complaints in respect of any infringement of their “family life” were incompatible ratione materiae with Article 8 of the Convention. 89. According to the applicants, the ties between them and R. had amounted to “family life”, within the meaning of Article 8 of the Convention, which, in the applicants ’ view, had expressly been acknowledged by the Government. (b) The Court ’ s assessment 90. The Court reiterates that the notion of “family life” under Article 8 of the Convention is not confined to marriage-based relationships and may encompass other de facto “family” ties where the parties are living together outside marriage or where other factors demonstrated that the relationship had sufficient constancy (see Paradiso and Campanelli v. Italy [GC], no. 25358/12, § 140, 24 January 2017 ). The existence or non-existence of “family life” for the purposes of Article 8 is essentially a question of fact depending on the real existence in practice of close personal ties (see K. and T. v. Finland [GC], no. 25702/94, § 150, ECHR 2001 ‑ VII ). 91. The Court has found in previous cases that the relationship between a foster family and a fostered child who had lived together for many months had amounted to family life within the meaning of Article 8 § 1, despite the lack of a biological relationship between them. The Court took into account the fact that a close emotional bond had developed between the foster family and the child, similar to the one between parents and children, and that the foster family had behaved in every respect like the child ’ s parents (see Moretti and Benedetti, cited above, §§ 49-50, and Kopf and Liberda v. Austria, no. 1598/06, § 37, 17 January 2012). 92. In the present case, the existence of family ties between the applicants and R. prior to his transfer to his natural parents was not in dispute between the parties. Indeed, although there was no biological link between the applicants and R., the latter remained in the first applicant ’ s constant care from the age of eight months for the first nine years of his life. It has never been disputed, either before the domestic authorities or before the Court, that during that period the first applicant fully assumed the role of a parent vis-à-vis that child. The other applicants, when still minors, were taken by the first applicant into her care at various times, and lived as family with R. for periods ranging from one to seven years (see paragraph 11 above) before R. was eventually transferred to his biological parents. Close personal ties between the applicants and the fact that the first applicant had assumed the role of R. ’ s parent were acknowledged by domestic courts in various sets of proceedings (see paragraphs 22 and 40 above). 93. In such circumstances, the Court is satisfied that the relationship between the applicants and R. constituted “ family life ” within the meaning of Article 8 § 1 of the Convention (compare Antkowiak v. Poland ( dec. ), no. 27025/17, 22 May 2018 ). It follows that Article 8 of the Convention is applicable. 4. Conclusion 94. The Court notes that this part of the application is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. Termination of the first applicant ’ s guardianship over R. and his transfer into his natural parents ’ care (a) Submissions by the parties i. The applicants 95. The applicants argued that the termination of the first applicant ’ s guardianship over R. and his transfer into his biological parents ’ care had constituted a disproportionate interference with their right to respect for their family life secured by Article 8 of the Convention. 96. They admitted that life in a family environment was a basic need of every child; however, they disagreed with the respondent Government that R. could realise that right only when living with his natural parents. They pointed out that, as the Government had acknowledged, their life with R. had constituted a “family life”, and argued that a question as to what form of family life would better serve a child ’ s interest should be resolved on the facts of a particular case, with due regard to the particular history of that child ’ s relations with his or her biological parents as well as to the ties between that child and his or her de facto family. 97. They insisted that continuing living with them would have been in R. ’ s best interests, given, in particular, the circumstances of his life prior to the courts ’ decision to terminate the first applicant ’ s guardianship and to transfer him to his natural parents ’ care. By taking that decision, the domestic courts, in the applicants ’ view, had failed to assess adequately all relevant circumstances and factors, and to base their decision on “relevant and sufficient” reasons. 98. In the above connection, the applicants argued, in particular, that, shortly after his birth, R. ’ s parents had actually abandoned him at the children ’ s hospital and had never come to see him there. Moreover, the very fact that a guardian had had to be appointed had been indicative that R. had been abandoned by his parents, as under national law guardianship had been possible only in respect of children left without parental care. 99. The applicants further disputed the Government ’ s arguments that R. ’ s parents had consented to the first applicant ’ s guardianship over their son and to his transfer into her care, as they had been unable to attend to his needs; and that the guardianship had been intended as a temporary measure until his condition had improved. In the latter connection, they submitted that in the administrative decision of 23 November 2001 (see paragraph 10 above) there had been no indication that the guardianship had been of a temporary nature; nor had time-limits or conditions in which the guardianship should be terminated been mentioned. The applicants also contended that R. ’ s parents could have remained living with R. and tried to organise necessary specialist care for him at home, with the assistance of healthcare professionals or by acquiring the necessary skills themselves, but instead they had chosen to live separately from the boy. In its judgment of 11 November 2008 – albeit at first instance – the District Court had found no grounds to deprive R. ’ s parents of their parental authority over R., it had pointed out to the necessity for them to change their attitude to R. ’ s upbringing (see paragraph 19 above), thereby implicitly acknowledging that R. ’ s parents had not fulfilled their parental obligations in a satisfactory manner. 100. The applicants went on to argue that R. ’ s parents had not maintained personal contact with him and had not expressed interest in regard to him during the first eight years of his life, this fact having been acknowledged in a judgment of 26 February 2009 (see paragraph 23 above). 101. They insisted that, in any event, when the decision to terminate the guardianship had been taken, the ties between R. and the applicants had been much stronger than his relations with his natural parents. Indeed, by that point in time, the boy had never lived with his parents, whereas it had been the first applicant who for the first nine years of his life had taken care of him on a daily basis, and had thus been the only significant adult for him. In the applicants ’ view, the domestic courts had failed to have regard to R. ’ s best interests and, in particular, to the specific needs he had because of his medical conditions. 102. The applicants also expressed doubts that the measures taken with a view to ensuring R. ’ s adaptation to his biological parents and his integration into his family prior to his transfer into their care had been adequate, as they had been limited to several dozen short meetings with the parents. The applicants referred to the opinion of the childcare authority, who had considered those measures insufficient and had recommended to increase R. ’ s contact with the parents gradually instead of transferring him immediately into their care (see paragraphs 34 and 36 above). 103. In such circumstances, termination of R. ’ s family life with the applicants and his transfer to the biological parents had, in the applicants ’ view, mainly served their interests rather than those of the child. ii. The Government 104. According to the Government, termination of the first applicant ’ s guardianship over R. and his transfer to his natural parents ’ care had met the requirements of Article 8 of the Convention. They argued, in particular, that the impugned measure had had a basis in national law, and more specifically in several Articles of the Russian Family Code, which had enshrined the right of each child to know, maintain contact with, live and be in the care of his or her parents; as well as the precedence of the parents ’ right to bring up their children (see paragraphs 61, 64 and 67 above). 105. They further stressed that the impugned measure had been taken in the child ’ s best interests and had been necessary to ensure the respect for his parents ’ rights secured by Article 8 of the Convention. In this connection, they pointed out, in particular, that R. ’ s biological parents had never formally renounced their parental authority over him; and that their parental authority had never been restricted, or withdrawn, by the competent authorities. The Government pointed out that, in various sets of proceedings, the domestic courts had established that R. ’ s parents had never abandoned their child; they had enquired about his life and health, supported him financially, and brought him necessary medicine and food for a special diet and clothes; and they had also responded to the first applicant ’ s requests regarding R. (see paragraphs 18 and 39 above). The Government thus argued that the family life between R. and his parents and other close relatives had never ceased to exist; his parents and other close relatives had always shown their deep attachment to him and had always considered him to be a member of their family. 106. The Government further submitted that it had been at a very difficult period of their life that R. ’ s parents had consented to their son ’ s transfer into the first applicant ’ s care; they had done so in view of his very serious medical condition, which at that moment had been critical. They, themselves, had been incapable at that period of providing the professional care that their child had needed, whereas the first applicant – a paediatrician – had been able to attend to his needs. The Government stressed that the guardianship had had to remain in place until R. ’ s condition had improved. In fact, in 2007, when R. ’ s state of health had stabilised, his parents had expressed their intention to take him home. They argued, more generally, that by its very nature, guardianship was a temporary measure which was to be ended as soon as the circumstances allowed it. 107. The Government also insisted that the domestic courts had carefully examined the circumstances of the instant case, had assessed the adduced written evidence and witness statements, and had based their relevant decision to terminate the first applicant ’ s guardianship over R. and to surrender him to his parents ’ care on “relevant and sufficient” reasons. In particular, they had examined R. ’ s family situation, had taken into account various factors, had balanced the interests of various parties to the conflict and had taken a decision in the best interests of the child. 108. More specifically, the domestic courts had been mindful of the fact that the applicants and R. had lived together for a very lengthy period, and had assessed, with reference to witness statements and written evidence, including the report of 4 May 2010 (see paragraph 35 above), the question of whether the boy ’ s removal from the applicants ’ family could negatively affect his physical or psychological state. Moreover, R. ’ s transfer to his parents had only been ordered after a one-year period of adaptation during which R. ’ s parents and brother had re-stablished their family bonds with R. The domestic courts had satisfied themselves that R. ’ s parents had acquired the necessary skills to take care of R., that they had been able to understand his psychological and emotional state, his aptitudes and needs. 109. The Government thus argued that the impugned measure had not breached the applicants ’ right to respect for their family life, as in the present case reunification with his natural parents had served the best interests of the child. (b) The Court ’ s assessment 110. The Court has found in paragraph 93 above that the relationship that existed between the applicants and R. when the authorities intervened constituted “family life”, within the meaning of Article 8 of the Convention. The annulment of the first applicant ’ s guardianship over R. and his transfer to his biological parents resulted in severance of that relationship and thus constituted an interference with the applicants ’ right to respect for their family life, as guaranteed by Article 8 of the Convention ( compare Ageyevy v. Russia, no. 7075/10, §§ 120 and 137, 18 April 2013, and Antkowiak ( dec. ), cited above, § 63 ). Such interference constitutes a violation of that provision unless it is “in accordance with the law”, pursues one of the legitimate aims under Article 8 § 2 and can be regarded as necessary in democratic society (see, among other authorities, Jovanovic v. Sweden, no. 10592/12, § 74, 22 October 2015 ). 111. The Court accepts the Government ’ s argument that the impugned measures had a basis in national law, and more specifically, in Articles 54, 63 and 68 of the Russian Family Code (see paragraphs 61, 64 and 67 above). It is furthermore satisfied that those measures were intended to protect “the rights and freedoms of the others”, and specifically those of R. and his biological parents. It remains to be determined whether the interference at issue was necessary in a democratic society. 112. In addressing this question, the Court has to consider whether, in the light of the case as a whole, the reasons given to justify the impugned measure were “ relevant and sufficient ” for the purposes of Article 8 § 2 of the Convention. It cannot satisfactorily assess this latter element without at the same time determining whether the decision-making process, seen as a whole, was fair and provided the applicant with the requisite protection of her interests safeguarded by Article 8 (see, for instance, Schneider v. Germany, no. 17080/07, § 93, 15 September 2011). 113. It must further be borne in mind that the national authorities have the benefit of direct contact with all the individuals concerned. It follows from these considerations that the Court ’ s task is not to substitute itself for the domestic authorities in the exercise of their responsibilities regarding custody and contact issues, but rather to review, in the light of the Convention, the decisions taken by those authorities in the exercise of their discretionary powers (see, among other authorities, Görgülü v. Germany, no. 74969/01, § 41, 26 February 2004 ). 114. There is currently a broad consensus – including in international law – in support of the idea that in all decisions concerning children, their best interests must be paramount (see Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 135, 6 July 2010, and X v. Latvia [GC], no. 27853/09, § 96, ECHR 2013). The child ’ s best interests may, depending on their nature and seriousness, override those of the parents. In particular, a parent cannot be entitled under Article 8 to have such measures taken as would harm the child ’ s health and development (see, for instance, Kocherov and Sergeyeva v. Russia, no. 16899/13, § 95, 29 March 2016 ). The parents ’ interests nevertheless remain a factor when balancing the various interests at stake. Child interests dictate that the child ’ s ties with his or her family be maintained, except in cases where the family has proved particularly unfit. It follows that family ties may only be severed in very exceptional circumstances and that everything must be done to preserve personal relations and, if and when appropriate, to “rebuild” the family (see, as a recent authority, Kacper Nowakowski v. Poland, no. 32407/13, § 75, 10 January 2017 ). Article 8 of the Convention thus imposes on every State the obligation to aim at reuniting natural parents with his or her child (see Görgülü, cited above, § 45). 115. In the present case, the domestic authorities were faced with a difficult choice between allowing the applicants, who at that time were R. ’ s de facto family, to continue their relationship with him or taking measures to bring about the boy ’ s reunion with his biological family (compare Antkowiak ( dec. ), cited above, § 70 ). To that end, they were called upon to assess and fairly balance the competing interests of R. ’ s parents and those of the applicants. They also had to bear in mind that, in view of his special physical and psychological conditions, R. was a particularly vulnerable child. The domestic authorities were therefore required to show particular vigilance in assessing his interests and to afford him increased protection with due regard to his state of health. 116. In the above connection, the following considerations appear to be relevant. The Court notes, firstly, that, as pointed out by the applicants (see paragraph 101 above), R. spent the first nine years of his life in the first applicant ’ s care, a period during which she remained the boy ’ s primary carer, having fully assumed the role of his parent. The Court considers that, albeit undoubtedly a considerable period of time, this factor alone could not have ruled out the possibility of R. ’ s reunification with his biological family. Indeed, effective respect for family life requires that future relations between parent and child be determined in the light of all the relevant considerations and not by the mere passage of time (see Ribić v. Croatia, no. 27148/12, § 92, 2 April 2015 ). 117. It further notes that it is true that R. ’ s parents acquiesced to the appointment of the first applicant as R. ’ s guardian. At the same time, as pointed out by the Government, they never formally renounced their parental authority over their son; neither were they restricted in, nor deprived of that authority (see paragraphs 16 and 39 above). Moreover, the domestic courts established that, although during the first eight years of R. ’ s life his parents had not maintained contact with him, they had nevertheless supported him financially and had accommodated the first applicant ’ s requests regarding medicine, food for a special diet for the boy, and the like ( see paragraph 18 above). Moreover, in 2009, they re-established their relationship with R. when the District Court determined their contact rights regarding him (see paragraphs 28 - 30 above). They therefore remained present in their son ’ s life, with the result that, even in the absence of any explicit time-limits or conditions for ending the first applicant ’ s guardianship in the text of the administrative decision of 23 November 2001, she could not have realistically assumed that R. would have remained in her care permanently. It thus rejects the first applicant ’ s argument to that end (see paragraph 99 above). The Court reiterates in that connection that care orders are by their very nature meant to be temporary measures, to be discontinued as soon as circumstances permit, and any measures implementing temporary care should be consistent with the ultimate aim of reuniting the natural parents and the child (see Ageyevy, cited above, § 143, and S.S. v. Slovenia, no. 40938/16, § § 85 and 101, 30 October 2018). 118. Furthermore, the case file reveals that the domestic courts carefully assessed R. ’ s best interests, with due regard to his state of health and his needs. In various sets of court proceedings, they noted, in particular, the first applicant ’ s attachment and genuinely caring attitude towards the child; her proactive approach in taking care of him and addressing his health issues, which had ensured progress in his physical and psychological development and overall improvement of his conditions (see paragraphs 22 and 40 above). As regards the biological parents, initially the authorities had doubts about whether they were fit and capable of securing R. ’ s needs. In particular, the authorities pointed to the lack of personal contact between them and R. and urged them to take a more responsible attitude regarding their parental obligations (see paragraphs 15, 19 and 23 above). In that connection, the courts rejected R. ’ s parents first claim for the boy ’ s transfer to their care, noting that such an immediate transfer could traumatise him and compromise his health, and that an adaptation period was necessary for R. to get used to his natural parents (see paragraph 24 above). In the proceedings concerning R. ’ s parents ’ second claim for his transfer, however, the courts found that R. ’ s parents were fit to raise him. It is noteworthy that by that time the contact arrangements between R. and his parents had been in place for a year. When taking that decision, the domestic courts satisfied themselves, with due regard to written evidence, including psychological reports, and witness statements, that R. ’ s parents had re-established their relations with the child; that they could adequately understand his psychological particularities, emotional state, needs and capabilities; that they had appropriate living conditions for the child; and that the latter felt calm and comfortable with them (see paragraphs 35, 42 and 43 above). 119. Against that background, and with due regard to the fact that the domestic authorities had the benefit of contact with all those concerned, the Court considers that, when ordering R. ’ s transfer to his biological parents and the termination of the first applicant ’ s guardianship over him, the domestic authorities acted within their margin appreciation and in compliance with their obligation under Article 8 of the Convention to aim for the reunification of the child with his parents. It further considers that they provided “relevant and sufficient” reasons for the measure complained of. Whilst the Court acknowledges the emotional hardship that the said decision must have caused the applicants, their rights could not override the best interests of the child (compare Antkowiak ( dec. ), cited above, § 72). 120. Lastly, in so far as the decision-making process was concerned, the Court observes that the first applicant, acting on behalf of herself and on the other applicants ’ behalf, was fully involved in the relevant proceedings and legally represented at both levels of jurisdiction (see paragraphs 32 and 48 above). She was able to state her case, to present her arguments and submit evidence; numerous witnesses on her behalf were called and examined at the first-instance court (see paragraphs 40 above). The relevant court decisions reveal that her arguments were addressed and received reasoned replies. In such circumstances, the Court is satisfied that the decision ‑ making process was fair and provided the applicants with sufficient safeguards of their rights under Article 8 of the Convention. 121. In the light of the foregoing, the Court concludes that the decision to terminate the first applicant ’ s guardianship over R. and to transfer him to his biological family corresponded to his best interests, was taken within the authorities ’ margin of appreciation and was based on “relevant and sufficient” reasons. The interference with the applicants ’ family life was thus “necessary in a democratic society”. 122. There has accordingly been no violation of Article 8 of the Convention. 2. The applicants ’ access to R. (a) Submissions by the parties 123. The applicants complained that the refusal of any access and any contact with R. had led to a total severance of their family ties with him and had been grossly disproportionate to any legitimate aims the authorities might have pursued. In their submission, the decision of the domestic courts to refuse them any contact rights with R. had been the result of a formalistic approach of those courts to the concept of family and of their failure to take into account the emotional ties between the applicants and R. It had also been rooted in the inadequacy of the domestic legislation which had afforded no protection to de facto family ties existing in the absence of biological kinship or and legal arrangements, such as guardianship. The applicants also argued that the domestic courts ’ refusal to order a comprehensive medical examination with a view to obtaining R. ’ s opinion on the matter, and their failure to adduce any evidence regarding R. ’ s best interests in the question of contact rights with the applicants had rendered their relevant decisions arbitrary. 124. The Government argued that the domestic courts had been justified in their decision not to grant the applicants access to R. They pointed out that Article 67 of the Russian Family Code had established an exhaustive list of individuals entitled to have access to a child (see paragraph 66 above). Since the applicants had had neither blood ties with R., nor – after the first applicant ’ s guardianship had been cancelled – legal ties with him, there had been no grounds in national law to grant them access to R. The Government also pointed out that – as had been established by the domestic courts – R. ’ s medical condition had made it impossible to ascertain whether he had had any attachment to the applicants, and that therefore their argument to that end had been without foundation. They insisted therefore that, by refusing the applicants contact with R., the domestic authorities had not breached their right to respect for their family life under Article 8 of the Convention. (b) The Court ’ s assessment 125. The Court reiterates that where the existence of a family tie has been established, the State must in principle act in a manner calculated to enable that tie to be maintained (see Kocherov and Sergeyeva, cited above, § 98, and the authorities cited therein ). Moreover, even though the essential object of Article 8 is to protect the individuals against arbitrary interference by public authorities, there may be positive obligations inherent in an effective “respect” for family life. These obligations may involve the adoption of measures designed to secure respect for family life even in the sphere of relations between individuals, including both the provision of a regulatory framework of adjudicatory and enforcement machinery protecting individuals ’ rights and the implementation, where appropriate, of specific steps (see, for instance, Kacper Nowakowski, cited above, § 71, 10 January 2017). 126. The Court has also held that, in view of the great variety of family situations possibly concerned, a fair balancing of the rights of all individuals involved necessitates an examination of the particular circumstances of each case (see Schneider, cited above, § 100). Accordingly, Article 8 of the Convention can be interpreted as imposing on member States an obligation to examine on a case-by-case basis whether it is in the child ’ s best interests to maintain contact with a person, whether biologically related or not, who has taken care of him or her for a sufficiently long period of time (see Nazarenko v. Russia, no. 39438/13, § 66, ECHR 2015 (extracts)). 127. In the present case, the domestic courts rejected the first applicant ’ s claims in respect of access to R., with reference to the absence of any legal link between her and the child after her guardianship had been terminated; they also pointed out to the lack of biological kinship between them, which pursuant to Article 67 of the Russian Family Code ruled out any possibility for the first applicant to seek access to the child (see paragraphs 55, 57 and 58 above). 128. In the Nazarenko case, cited above, which concerned a situation where the applicant lost all his parental rights, including contact rights, in respect of a child whom he had brought up as his own for several years, after it had been established that he was not her biological father, the Court has already expressed its concern regarding the inflexibility of the Russian legal provisions governing contact rights. Those provisions set out an exhaustive list of individuals who are entitled to maintain contact with a child, without providing for any exceptions to take account of the variety of family situations and of the best interests of the child. As a result, a person, who is not related to the child but who has taken care of him or her for a long period of time and has formed a close personal bond with him or her, is entirely and automatically excluded from the child ’ s life and cannot obtain contact rights in any circumstances, irrespective of the child ’ s best interests (see Nazarenko, cited above, §§ 65 and 67). The Court has found that the complete and automatic exclusion of the applicant from the child ’ s life after his parental status in respect of her was terminated as a result of the inflexibility of the domestic legal provisions – in particular the denial of contact rights without giving proper consideration to the child ’ s best interests – amounted to a failure to respect the applicant ’ s family life (ibid., § 68). 129. The Court discerns nothing in the reasoning of the domestic courts regarding the applicants ’ claim for access to R. which would enable it to reach a different conclusion in the present case. The texts of the court decisions reveal that the courts made no attempt to assess the particular circumstances of the present case, and, in particular, to take into consideration the relationship that existed between the applicants and R. prior to the termination of the first applicant ’ s guardianship over him; to give any consideration to the question of whether, and why contact between the applicants and R. might or might not be in R. ’ s best interests; to give any consideration to the question of whether and why the interests of R. ’ s natural parents might or might not override those of the applicants. In fact, in its final and binding decision, the appellate court limited itself to holding that the right to seek access to a child could in no circumstances be guaranteed to any individuals other than those listed in Article 6 7 of the Russian Family Code (see paragraphs 57 and 58 above). The Court cannot accept such reasoning as “relevant and sufficient” to deny the applicants access to R. Whilst it is not for the Court to speculate whether granting the applicants access to R. was in the child ’ s best interests, it cannot accept that the relevant court decisions were not based on the assessment of the individual circumstances of the present case and automatically rules out any possibility for the family ties between the applicants and R. to be maintained. 130. In the light of the foregoing considerations, the Court is bound to conclude that the domestic authorities failed in their obligation to fairly balance the rights of all individuals involved with due regard to particular circumstances of the present case, which amounted to a failure to respect the applicants ’ family life (compare Nazarenko, cited above, §§ 66 and 68). 131. There has accordingly been a violation of Article 8 of the Convention on that account. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 132. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 133. The applicants submitted that they had been deeply attached to R. and that they had suffered distress and anxiety since his transfer to his parents in view of their inability to maintain any contact with him. They claimed non-pecuniary damage in that connection, and in particular, 20,000 euros (EUR) to be awarded to the first applicant, EUR 10,000 to be awarded to each of the second and third applicants and EUR 5,000 to be awarded to each of the fourth to eighth applicants. 134. The Government contested that claim as excessive and unreasonable. 135. The Court notes that it has found a violation of the applicants ’ right to respect for their family life on account of the authorities ’ failure to provide a possibility for the family ties between the applicants and R. to be maintained. It considers that the applicants suffered non-pecuniary damage in that connection, which cannot be compensated by a mere finding of a violation. Accordingly, the Court awards the applicants jointly EUR 16, 00 0 in respect of non-pecuniary damage. B. Costs and expenses 136. The applicants also claimed 5,000 Russian roubles (RUB – approximately EUR 200 ) for the costs and expenses incurred before the domestic courts in the proceedings for contact rights. 137. The Government did not contest the indicated amount of the costs, or the fact that those had actually been paid; however, they argued that the applicants had been ordered to pay that amount in accordance with the relevant provisions of law on civil procedure, given the fact that they had lost the civil dispute. The Government therefore insisted that the applicants ’ claim for reimbursement should be rejected. 138. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the applicants jointly sum of EUR 200 for costs and expenses in the relevant domestic proceedings. C. Default interest 139. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. IV. APPLICATION OF ARTICLE 46 OF THE CONVENTION 140. With reference to Article 46 of the Convention, the applicants requested that, without prejudice to any other measures that the respondent Government, subject to the supervision of the Committee of Ministers, may deem appropriate, individual measures be applied which would ensure restitutio in integrum in their case. In particular, they referred to the case of M.D. and Others v. Malta (no. 64791/10, 17 July 2012, §§ 85-90, with further references) and requested that the Court order the respondent Government to undertake all necessary and appropriate measures in order to restore and protect personal contact between R. and the applicants. 141. The Government argued that, by requesting individual measures, the applicants were encroaching on the competence of the Committee of Ministers. 142. The Court reiterates that, in the context of the execution of judgments in accordance with Article 46 of the Convention, a judgment in which it finds a breach imposes on the respondent State a legal obligation under that provision to put an end to the breach and to make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach ( restitutio in integrum ). However, its judgments are essentially declaratory in nature and, in general, it is primarily for the State concerned to choose the means to be used in its domestic legal order in order to discharge its legal obligation under Article 46 of the Convention, provided that such means are compatible with the conclusions set out in the Court ’ s judgment (see, among other authorities, Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000 ‑ VIII; Brumărescu v. Romania (just satisfaction) [GC], no. 28342/95, § 20, ECHR 2001-I; Akdivar and Others v. Turkey (Article 50), judgment of 1 April 1998, Reports 1998-II, pp. 723-24, § 47; and Marckx v. Belgium, judgment of 13 June 1979, Series A no. 31, p. 25, § 58). This discretion as to the manner of execution of a judgment reflects the freedom of choice attached to the primary obligation of the Contracting States under the Convention to secure the rights and freedoms guaranteed (Article 1) (see, mutatis mutandis, Papamichalopoulos and Others v. Greece (Article 50), 31 October 1995, § 34, Series A no. 330 ‑ B ). 143. Having regard to the established principles cited above and to the particular circumstances of the case, the Court finds it most appropriate to leave it to the respondent Government to choose the means to be used in the domestic legal order in order to discharge their legal obligation under Article 46 of the Convention. | The Court held that there had been no violation of Article 8 (right to respect for private and family life) of the Convention owing to the order by the domestic courts to remove the child from his foster mother and return him to his biological parents and a violation of Article 8 of the Convention because of the decision to deny the foster family any subsequent contact with the child. It found in particular that the domestic courts had weighed up all the necessary factors when deciding to return the child to his parents, such as whether the measure had been in his best interests. However, the courts had denied the foster family any subsequent contact with the child, who had formed close ties with the first applicant and her remaining children. In this regard, the Court noted that the courts’ decision had been based solely on an application of Russia’s legislation on contact rights, which was inflexible and did not take account of varying family situations. The courts had therefore not carried out the required assessment of the individual circumstances of the case. |
191 | Domestic violence | II. RELEVANT LAW AND PRACTICE A. Domestic law and practice 70. The relevant domestic law provisions relied on by the judicial authorities in the instant case are set out below. 1. The Criminal Code Article 188 “ Whoever by use of force or threats compels another person to do or not to do something or to obtain the latter ’ s permission to do something ... will be sentenced to between six months ’ and one year ’ s imprisonment, and a major fine of between one thousand and three thousand liras ...” Article 191 § 1 “Whoever, apart from the situations set out in law, threatens another person with severe and unjust damage will be sentenced to six months ’ imprisonment.” Article 449 “If the act of homicide is: ( a ) committed against a wife, husband, sister or brother, adoptive mother, adopted child, stepmother, stepfather, stepchild, father-in-law, mother-in-law, son-in-law, or daughter -in-law ... the offender will be sentenced to life imprisonment ...” Article 456 § § 1, 2 and 4 “ Whoever torments another person physically or damages his or her welfare or causes cerebral damage, without intending murder, will be sentenced to between six months ’ and one year ’ s imprisonment. Where the act constitutes a danger to the victim ’ s life or causes constant weakness in one of the organs or senses, or permanent difficulty in speech or permanent injuries to the face, or physical or mental illness for twenty or more days, or prevents [the victim] from continuing his regular work for the same number of days, the offender will be sentenced to between two and five years ’ imprisonment. ... If the act did not cause any illness or did not prevent [the victim] from continuing his regular work or these situations did not last for more than ten days, the offender will be sentenced to between two and six months ’ imprisonment or to a heavy fine of twelve thousand to one hundred and fifty thousand liras, provided that the injured person complains ...” Article 457 “If the acts mentioned in Article 456 are committed against the persons cited in Article 449 or if the act is committed by a hidden or visible weapon or harmful chemical, the punishment shall be increased by one - third to a half of the main sentence.” Article 460 “In situations mentioned under Articles 456 and 459, where commencement of the prosecution depends on the lodging of a complaint [by the victim], if the complainant waives his/her claims before the pronouncement of the final judgment the public prosecution shall be terminated.” 2. The Family Protection Act (Law no. 4320 of 14 January 1998) Section 1 “If a spouse or a child or another family member living under the same roof is subjected to domestic violence and if the magistrate ’ s court dealing with civil matters is notified of the fact by that person or by the Chief Public Prosecutor ’ s Office, the judge, taking account of the nature of the incident, may on his or her own initiative order one or more of the following measures or other similar measures as he or she deems appropriate. The offending spouse may be ordered: (a) not to engage in violent or threatening behaviour against the other spouse or the children (or other family members living under the same roof); (b) to leave the shared home and relinquish it to the other spouse and the children, if any, and not to approach the home in which the other spouse and the children are living, or their workplaces; (c) not to damage the property of the other spouse (or of the children or other family members living under the same roof); (d) not to disturb the other spouse or the children (or other family members living under the same roof) through the use of communication devices; (e) to surrender any weapons or similar instruments to law-enforcement officials; (f) not to arrive at the shared home when under the influence of alcohol or other intoxicating substances, or not to use such substances in the shared home. The above ‑ mentioned measures shall be applied for a period not exceeding six months. In the order, the offending spouse shall be warned that in the event of failure to comply with the measures imposed, he or she will be arrested and sentenced to a term of imprisonment. The judge may order interim maintenance payments, taking account of the victim ’ s standard of living. Applications made under section 1 shall not be subject to court fees. ” Section 2 “ The court shall transmit a copy of the protection order to the Chief Public Prosecutor ’ s Office. The Chief Public Prosecutor ’ s Office shall monitor implementation of the order by means of the law-enforcement agencies. In the event of failure to comply with the protection order, the law-enforcement agency shall conduct an investigation on its own initiative, without the victim being required to lodge a complaint, and shall transmit the documents to the Chief Public Prosecutor ’ s Office without delay. The Chief Public Prosecutor ’ s Office shall bring a public prosecution in the magistrate ’ s court against a spouse who fails to comply with a protection order. The location and expeditious holding of the hearing in the case shall be subject to the provisions of Law no. 3005 on the procedure governing in flagrante delicto cases. Even if the act in question constitutes a separate offence, a spouse who fails to comply with a protection order shall also be sentenced to three to six months ’ imprisonment. ” 3. Implementing regulations for the Family Protection Act, dated 1 March 2008 71. These regulations, which were drawn up to govern the implementation of Law no. 4320, set out the measures to be taken in respect of the family members perpetrating violence and the procedures and principles governing the application of those measures, in order to protect family members subjected to domestic violence. B. Relevant international and comparative - law materials 1. The United Nations ’ position with regard to domestic violence and discrimination against women 72. The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) was adopted in 1979 by the United Nations General Assembly and ratified by Turkey on 19 January 1986. 73. The CEDAW defines discrimination against women as “ ... any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.” As regards the States ’ obligations, Article 2 of the CEDAW provides, in so far as relevant, the following: “States Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women and, to this end, undertake: ... (e) to take all appropriate measures to eliminate discrimination against women by any person, organisation or enterprise; (f) to take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women; ... ” 74. The Committee on the Elimination of All Forms of Discrimination Against Women (hereinafter “the CEDAW Committee”) has found that “gender-based violence is a form of discrimination that seriously inhibits women ’ s ability to enjoy rights and freedoms on a basis of equality with men” and is thus prohibited under Article 1 of the CEDAW. Within the general category of gender-based violence, the CEDAW Committee includes violence by “private act” [2] and “family violence” [3]. Consequently, gender-based violence triggers duties in States. General Recommendation No. 19 sets out a catalogue of such duties. They include a duty on States to “take all legal and other measures that are necessary to provide effective protection of women against gender-based violence ” [4], “ including penal sanctions, civil remedies and compensatory provisions to protect women against all kinds of violence” [5]. In its Concluding Comments on the combined fourth and fifth periodic report of Turkey (hereinafter “ the Concluding Comments”), the CEDAW Committee reiterated that violence against women, including domestic violence, is a form of discrimination (see UN doc. CEDAW/C/TUR/4-5 and Corr.1, 15 February 2005, § 28). 75. Furthermore, in its explanations of General Recommendation No. 19, the CEDAW Committee considered the following: “... 6. The Convention in Article 1 defines discrimination against women. The definition of discrimination includes gender-based violence, that is, violence that is directed against a woman because she is a woman or that affects women disproportionately. It includes acts that inflict physical, mental or sexual harm or suffering, threats of such acts, coercion and other deprivations of liberty. Gender-based violence may breach specific provisions of the Convention, regardless of whether those provisions expressly mention violence. 7. Gender-based violence, which impairs or nullifies the enjoyment by women of human rights and fundamental freedoms under general international law or under human rights conventions, is discrimination within the meaning of Article 1 of the Convention. Comments on specific Articles of the Convention ... Articles 2 (f), 5 and 10 (c) 11. Traditional attitudes by which women are regarded as subordinate to men or as having stereotyped roles perpetuate widespread practices involving violence or coercion, such as family violence and abuse, forced marriage, dowry deaths, acid attacks and female circumcision. Such prejudices and practices may justify gender-based violence as a form of protection or control of women. The effect of such violence on the physical and mental integrity of women is to deprive them the equal enjoyment, exercise and knowledge of human rights and fundamental freedoms. While this comment addresses mainly actual or threatened violence the underlying consequences of these forms of gender-based violence help to maintain women in subordinate roles and contribute to the low level of political participation and to their lower level of education, skills and work opportunities.” 76. In the case of A.T. v. Hungary (decision of 26 January 2005), where the applicant had alleged that her common-law husband and father of her two children had been physically abusing and threatening her from 1998 onwards, the CEDAW Committee directed Hungary to take measures “to guarantee the physical and mental integrity of the applicant and her family”, as well as to ensure that she was provided with a safe place of residence to live with her children, and that she received child support, legal assistance and compensation in proportion to the harm sustained and the violation of her rights. The Committee also made several general recommendations to Hungary on improving the protection of women against domestic violence, such as establishing effective investigative, legal and judicial processes, and increasing treatment and support resources. 77. In the case of Fatma Yıldırım v. Austria (decision of 1 October 2007), which concerned the killing of Mrs Yıldırım by her husband, the CEDAW Committee found that the State Party had breached its due diligence obligation to protect Fatma Yıldırım. It therefore concluded that the State Party had violated its obligations under Article 2 (a) and (c) to (f), and Article 3 of the CEDAW read in conjunction with Article 1 of the CEDAW and General Recommendation No. 19 of the CEDAW Committee and the corresponding rights of the deceased Fatma Yıldırım to life and to physical and mental integrity. 78. The United Nations General Assembly Declaration on the Elimination of Violence against Women (1993), in its Article 4 (c), urges States to “exercise due diligence to prevent, investigate and, in accordance with national legislation, punish acts of violence against women, whether those acts are perpetrated by the State or private persons”. 79. In his third report, of 20 January 2006, to the Commission on Human Rights of the United Nations Economic and Social Council (E/CN.4/2006/61), the special rapporteur on violence against women considered that there is a rule of customary international law that “obliges States to prevent and respond to acts of violence against women with due diligence”. 2. The Council of Europe 80. In its Recommendation Rec(2002)5 of 30 April 2002 on the protection of women against violence, the Committee of Ministers of the Council of Europe stated, inter alia, that member States should introduce, develop and/or improve where necessary national policies against violence based on maximum safety and protection of victims, support and assistance, adjustment of the criminal and civil law, raising of public awareness, training for professionals confronted with violence against women, and prevention. 81. The Committee of Ministers recommended, in particular, that member States should penalise serious violence against women such as sexual violence and rape, abuse of the vulnerability of pregnant, defenceless, ill, disabled or dependent victims, as well as penalising abuse of position by the perpetrator. The Recommendation also stated that member States should ensure that all victims of violence are able to institute proceedings, make provisions to ensure that criminal proceedings can be initiated by the public prosecutor, encourage prosecutors to regard violence against women as an aggravating or decisive factor in deciding whether or not to prosecute in the public interest, ensure where necessary that measures are taken to protect victims effectively against threats and possible acts of revenge and take specific measures to ensure that children ’ s rights are protected during proceedings. 82. With regard to violence within the family, the Committee of Ministers recommended that member States should classify all forms of violence within the family as criminal offences and envisage the possibility of taking measures in order, inter alia, to enable the judiciary to adopt interim measures aimed at protecting victims, to ban the perpetrator from contacting, communicating with or approaching the victim, or residing in or entering defined areas, to penalise all breaches of the measures imposed on the perpetrator and to establish a compulsory protocol for operation by the police, medical and social services. 3. The Inter-American System 83. In Velazquez-Rodriguez v. Honduras, the Inter-American Court of Human Rights stated: “An illegal act which violates human rights and which is initially not directly imputable to a State (for example, because it is the act of a private person or because the person responsible has not been identified) can lead to international responsibility of the State, not because of an act itself, but because of the lack of due diligence to prevent the violation or to respond to it as required by the Convention.” [6] 84. The legal basis for the ultimate attribution of responsibility to a State for private acts relies on State failure to comply with the duty to ensure human rights protection, as set out in Article 1 § 1 of the American Convention on Human Rights [7]. The Inter-American Court ’ s case-law reflects this principle by repeatedly holding States internationally responsible on account of their lack of due diligence to prevent human rights violations, to investigate and sanction perpetrators or to provide appropriate reparations to their families. 85. The Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women 1994 ( the Belém do Pará Convention) [8] sets out States ’ duties relating to the eradication of gender - based violence. It is the only multilateral human rights treaty to deal solely with violence against women. 86. The Inter-American Commission adopts the Inter-American Court of Human Right ’ s approach to the attribution of State responsibility for the acts and omissions of private individuals. In the case of Maria Da Penha v. Brazil [9], the Commission found that the State ’ s failure to exercise due diligence to prevent and investigate a domestic violence complaint warranted a finding of State responsibility under the American Convention on Human Rights and the Belém do Pará Convention. Furthermore, Brazil had violated the rights of the applicant and failed to carry out its duty ( inter alia, under Article 7 of the Belém do Pará Convention, obliging States to condemn all forms of violence against women), as a result of its failure to act and its tolerance of the violence inflicted. Specifically, the Commission held that: “... tolerance by the State organs is not limited to this case; rather, it is a pattern. The condoning of this situation by the entire system only serves to perpetuate the psychological, social, and historical roots and factors that sustain and encourage violence against women. Given the fact that the violence suffered by Maria da Penha is part of a general pattern of negligence and lack of effective action by the State in prosecuting and convicting aggressors, it is the view of the Commission that this case involves not only failure to fulfil the obligation with respect to prosecute and convict, but also the obligation to prevent these degrading practices. That general and discriminatory judicial ineffectiveness also creates a climate that is conducive to domestic violence, since society sees no evidence of willingness by the State, as the representative of the society, to take effective action to sanction such acts.” [10] 4. Comparative- law materials 87. In eleven member States of the Council of Europe, namely in Albania, Austria, Bosnia and Herzegovina, Estonia, Greece, Italy, Poland, Portugal, San Marino, Spain and Switzerland, the authorities are required to continue criminal proceedings despite the victim ’ s withdrawal of complaint in cases of domestic violence. 88. In twenty - seven member States, namely in Andorra, Armenia, Azerbaijan, Belgium, Bulgaria, Cyprus, the Czech Republic, Denmark, England and Wales, Finland, “ the former Yugoslav Republic of Macedonia ”, France, Georgia, Germany, Hungary, Ireland, Latvia, Luxembourg, Malta, Moldova, the Netherlands, the Russian Federation, Serbia, Slovakia, Sweden, Turkey and Ukraine, the authorities have a margin of discretion in deciding whether to pursue criminal proceedings against perpetrators of domestic violence. A significant number of legal systems make a distinction between crimes which are privately prosecutable (and for which the victim ’ s complaint is a prerequisite) and those which are publicly prosecutable (usually more serious offences for which prosecution is considered to be in the public interest). 89. It appears from the legislation and practice of the above-mentioned twenty - seven countries that the decision on whether to proceed where the victim withdraws his/her complaint lies within the discretion of the prosecuting authorities, which primarily take into account the public interest in continuing criminal proceedings. In some jurisdictions, such as England and Wales, in deciding whether to pursue criminal proceedings against the perpetrators of domestic violence the prosecuting authorities (Crown Prosecution Service) are required to consider certain factors, including: the seriousness of the offence; whether the victim ’ s injuries are physical or psychological; if the defendant used a weapon; if the defendant has made any threats since the attack; if the defendant planned the attack; the effect (including psychological) on any children living in the household; the chances of the defendant offending again; the continuing threat to the health and safety of the victim or anyone else who was, or could become, involved; the current state of the victim ’ s relationship with the defendant; the effect on that relationship of continuing with the prosecution against the victim ’ s wishes; the history of the relationship, particularly if there was any other violence in the past; and the defendant ’ s criminal history, particularly any previous violence. Direct reference is made to the need to strike a balance between the victim ’ s and any children ’ s Article 2 and Article 8 rights in deciding on a course of action. 90. Romania seems to be the only State which bases the continuance of criminal proceedings entirely, and in all circumstances, on the wishes/complaints of the victim. C. Reports concerning domestic violence and the situation of women in Turkey 1. The opinion of the Purple Roof Women ’ s Shelter Foundation (Mor Çatı Kadın Sığınağı Vakfı – “the Mor Çatı Foundation ” ) on the implementation of Law no. 4320, dated 7 July 2007 91. According to this report, Law no. 4320 (see paragraph 70 above) is not yet being fully implemented. In recent years there has been an increase in “protection orders” or injunctions issued by family courts. However, some courts, in response to applications made to them by women in mortal danger, are still setting hearings two or even three months ahead. Under these circumstances, judges and prosecutors treat an action under Law no. 4320 as if it were a form of divorce action, whereas the point of the Law is to take urgent action on behalf of women who are seeking to protect their own lives. Once the injunction has been issued, women are confronted with a number of problems with its implementation. 92. In the two years before the report was released approximately 900 women applied to the Mor Çatı Foundation and made great efforts to use Law no. 4320, but of this number only 120 succeeded. The Mor Çatı Foundation has identified serious problems with the implementation of Law no. 4320. In particular, it was observed that domestic violence is still treated with tolerance at police stations, and that some police officers try to act as arbitrators, or take the side of the male, or suggest that the woman drop her complaint. There are also serious problems in serving the injunction issued by a court under Law no. 4320 on the husband. In the case of a number of women wishing to work with the Mor Çatı Foundation, injunctions were not implemented because their husbands were police officers or had friendly relations with officers at the police station in question. 93. Furthermore, there are unreasonable delays in issuing injunctions by the courts. This results from the attitude of the courts in treating domestic violence complaints as a form of divorce action. It is considered that behind such delays lies a suspicion that women might be making such applications when they have not suffered violence. The allegations that women abuse Law no. 4320 are not correct. Since the economic burden of the home lies almost 100% with men, it would be impossible for women to request implementation of Law no. 4320 unless they were confronted with mortal danger. Finally, the injunctions at issue are generally narrow in scope or are not extended by the courts. 2. Research report prepared by the Women ’ s Rights Information and Implementation Centre of the Diyarbakır Bar Association (KA ‑ MER) on the Implementation of Law no. 4320, dated 25 November 2005 94. According to this report, a culture of violence has developed in Turkey and violence is tolerated in many areas of life. A survey of legal actions at a magistrate ’ s court dealing with civil matters ( sulh hukuk mahkemesi ) and three civil courts ( asliye hukuk mahkemesi ) in Diyarbakır identified 183 actions brought under Law no. 4320 from the date on which the Law entered into force in 1998 until September 2005. In 104 of these cases, the court ordered various measures, while in the remaining 79 actions the court held that there were no grounds for making an order, or dismissed the action, or ruled that it lacked jurisdiction. 95. Despite the importance of the problem of domestic violence, very few applications have been made under the said Law, because either the public is not generally aware of it or the level of confidence in the security forces is very low in the region. The most important problems were caused by the delay in issuing injunctions and the authorities ’ failure to monitor the implementation of injunctions. 96. Moreover, the negative attitude of police officers at police stations towards victims of domestic violence is one of the obstacles preventing women from using this Law. Women who go to police stations because they are subjected to domestic violence are confronted with attitudes which tend to regard the problem as a private family matter into which the police are reluctant to interfere. 97. This report makes recommendations to improve the implementation of Law no. 4320 and to enhance the protection of victims of domestic violence. 3. Diyarbakır KA-MER Emergency Helpline statistics for the period 1 August 1997 to 30 June 2007 98. This statistical information report was prepared following interviews conducted with 2,484 women. It appears that all of the complainants were subjected to psychological violence and approximately 60% were subjected to physical violence. The highest number of victims is in the 20-30 age group (43%). 57% of these women are married. The majority of victims are illiterate or of a low level of education. 78% of the women are of Kurdish origin. 91% of the victims who called the emergency helpline are from Diyarbakır. 85% of the victims have no independent source of income. 4. Amnesty International ’ s 2004 report entitled “Turkey: women confronting family violence” 99. According to this report, statistical information about the extent of violence against women in Turkey is limited and unreliable. Nonetheless, it appears that a culture of domestic violence has placed women in double jeopardy, both as victims of violence and because they are denied effective access to justice. Women from vulnerable groups, such as those from low-income families or who are fleeing conflict or natural disasters, are particularly at risk. In this connection, it was found that crimes against women in south - east Turkey have gone largely unpunished. 100. It was noted that women ’ s rights defenders struggle to combat community attitudes, which are tolerant of violence against women and are frequently shared by judges, senior government officials and opinion leaders in society. Even after legislative reforms have removed the legal authorisation for discriminatory treatment, attitudes that pressure women to conform to certain codes of behaviour restrict women ’ s life choices. 101. The report states that at every level of the criminal justice system the authorities fail to respond promptly or rigorously to women ’ s complaints of rape, sexual assault or other violence within the family. The police are reluctant to prevent and investigate family violence, including the violent deaths of women. Prosecutors refuse to open investigations into cases involving domestic violence or to order protective measures for women at risk from their family or community. The police and courts do not ensure that men, who are served with court orders, including protection orders, comply with them. They accord them undue leniency in sentencing, on the grounds of “provocation” by their victim and on the flimsiest of evidence. 102. There are many barriers facing women who need access to justice and protection from violence. Police officers often believe that their duty is to encourage women to return home and “make peace” and fail to investigate the women ’ s complaints. Many women, particularly in rural areas, are unable to make formal complaints, because leaving their neighbourhoods subjects them to intense scrutiny, criticism and, in some cases, violence. 103. Furthermore, although some courts appear to have begun implementing the reforms, the discretion accorded to the courts continues to accord the perpetrators of domestic violence unwarranted leniency. Sentences in such cases are still frequently reduced at the discretion of the judges, who continue to take into account the “severe provocation” of the offence to custom, tradition or honour. 104. Finally, this report makes a number of recommendations to the Turkish government and to community and religious authorities with a view to addressing the problem of domestic violence. 5. Report on Honour Crimes, prepared by the Diyarbakır Bar Association ’ s Justice For All Project and the Women ’ s Rights Information and Implementation Centre 105. This report was prepared in order to look into the judicial dimensions of the phenomenon of so-called “honour crimes”. A survey was carried out of judgments in cases before the Diyarbakır assize courts and children ’ s courts. The purpose of the survey was to identify the proportion of such unlawful killings referred to the courts, the judiciary ’ s attitude to them, the defendants ’ lines of defence in these cases, the role of social structure ( that is, family councils and custom) and the reasons for the murders. To that end, cases in the Diyarbakır assize courts and children ’ s courts between 1999 and 2005 were examined. In these seven years, 59 cases were identified in which a judgment was given. In these cases, there were 71 victims/persons killed, and 81 people were tried as defendants. 106. According to the researchers, in cases where the victim/person killed was male, it was observed that defendants claimed, in their defence, that the victim/person killed had raped, sexually assaulted, or abducted a relative of the defendant, or had attempted to draw a relative of the defendant into prostitution. In cases where the victim/person killed was a woman, defendants alleged, in their defence, that the victim/person killed had been talking to other men, had taken up prostitution, or had committed adultery. In 46 of the judgments, mitigating provisions concerning unjustified provocation were applied. In cases of 61 convictions, the provisions of Article 59 of the Turkish Criminal Code concerning discretionary mitigation were applied. THE LAW I. ADMISSIBILITY 107. The Government contested the admissibility of the application on two grounds. A. Failure to observe the six-month rule under Article 35 § 1 of the Convention 108. The Government submitted that the applicant had failed to observe the six-month time-limit in respect of the events which had taken place before 2001. They argued that the events which had taken place between 1995 and 2001 should be considered as out of time. If the applicant was not satisfied with the decisions given by the domestic authorities subsequent to the events which had taken place during the above- mentioned period, she should have submitted her application to the Commission or, following the entry into force of Protocol No. 11, to the Court within six months of each decision. 109. The applicant claimed that she had lodged her application within six months of the impugned events. In her opinion the events should be taken as a whole and should not be examined separately. 110. The Court reiterates that the purpose of the six-month rule under Article 35 § 1 of the Convention is to promote security of law and to ensure that cases raising issues under the Convention are dealt with within a reasonable time (see Kenar v. Turkey (dec.), no. 67215/01, 1 December 2005). According to its well-established case-law, where no domestic remedy is available the six-month period runs from the date of the act complained of. 111. In that regard, the Court notes that from 10 April 1995 the applicant and her mother had been victims of multiple assaults and threats by H.O. against their physical integrity. These acts of violence had resulted in the death of the applicant ’ s mother and caused the applicant intense suffering and anguish. While there were intervals between the impugned events, the Court considers that the overall violence to which the applicant and her mother were subjected over a long period of time cannot be seen as individual and separate episodes and must therefore be considered together as a chain of connected events. 112. This being so, the Court notes that the applicant has submitted her application within six months of the killing of her mother by H.O., which event may be considered as the time that she became aware of the ineffectiveness of the remedies in domestic law, as a result of the authorities ’ failure to stop H.O. committing further violence. Given that these circumstances do not disclose any indication of a delay on the part of the applicant in introducing her application once it became apparent that no redress for her complaints was forthcoming, the Court considers that the relevant date for the purposes of the six-month time-limit should not be considered to be a date earlier than at least 13 March 2002 (see paragraph 54 above). In any event, the applicant ’ s former husband had continued to issue threats against her life and well-being and, therefore, it cannot be said that the said pattern of violence has come to an end (see paragraphs 59-69 above). 113. In the specific context of this case, it follows that the applicant ’ s complaints have been introduced within the six-month time-limit required by Article 35 § 1 of the Convention. The Court therefore dismisses the Government ’ s preliminary objection in this regard. B. Failure to exhaust domestic remedies 114. The Government further contended that the applicant had failed to exhaust domestic remedies since she and her mother had withdrawn their complaints many times and had caused the termination of the criminal proceedings against the applicant. They maintained that the applicant had also not availed herself of the protection afforded by Law no. 4320 and that she had prevented the public prosecutor from applying to the family court, in that she had withdrawn her complaints. They submitted further that the applicant could have availed herself of the administrative and civil law remedies whose effectiveness had been recognised by the Court in previous cases (citing Aytekin v. Turkey, 23 September 1998, Reports of Judgments and Decisions 1998-VII). Finally, relying on the Court ’ s judgments in Ahmet Sadık v. Greece (15 November 1996, § 34, Reports 1996-V) and Cardot v. France (19 March 1991, § 30, Series A no. 200), the Government claimed that the applicant had failed to raise, even in substance, her complaints of discrimination before the national authorities and that, therefore, these complaints should be declared inadmissible. 115. The applicant claimed that she had exhausted all available remedies in domestic law. She argued that the domestic remedies had proven to be ineffective given the failure of the authorities to protect her mother ’ s life and to prevent her husband from inflicting ill-treatment on her and her mother. As regards the Government ’ s reliance on Law no. 4320, to the effect that she had not availed herself of the remedies therein, the applicant noted that the said law had come into force on 14 January 1998, whereas a significant part of the events at issue had taken place prior to that date. Prior to the entry into force of Law no. 4320, there was no mechanism for protection against domestic violence. In any event, despite her numerous criminal complaints to the Chief Public Prosecutor ’ s Office, none of the protective measures provided for in Law no. 4320 had been taken to protect the life and well-being of the applicant and her mother. 116. The Court observes that the main question with regard to the question of exhaustion of domestic remedies is whether the applicants have failed to make use of available remedies in domestic law, particularly those provided by Law no. 4320, and whether the domestic authorities were required to pursue the criminal proceedings against the applicant ’ s husband despite the withdrawal of complaints by the victims. These questions are inextricably linked to the question of the effectiveness of the domestic remedies in providing sufficient safeguards for the applicant and her mother against domestic violence. Accordingly, the Court joins these questions to the merits and will examine them under Articles 2, 3 and 14 of the Convention (see, among other authorities, Şemsi Önen v. Turkey, no. 22876/93, § 77, 14 May 2002). 117. In view of the above, the Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 118. The applicant complained that the authorities had failed to safeguard the right to life of her mother, who had been killed by her husband, in violation of Article 2 § 1 of the Convention, the relevant part of which provides: “Everyone ’ s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law ...” A. The parties ’ submissions 1. The applicant 119. The applicant asserted at the outset that domestic violence was tolerated by the authorities and society and that the perpetrators of domestic violence enjoyed impunity. In this connection, she pointed out that, despite their numerous criminal complaints to the Diyarbakır Chief Public Prosecutor ’ s Office, none of the protective measures provided for in Law no. 4320 had been taken to protect the life and well-being of herself and her mother. Conversely, on a number of occasions, the authorities had tried to persuade the applicant and her mother to abandon their complaints against H.O. The domestic authorities had remained totally passive in the face of death threats issued by H.O. and had left her and her mother to the mercy of their aggressor. 120. The applicant pointed out that, by a petition dated 27 February 2002, her mother had applied to the Chief Public Prosecutor ’ s Office and had informed the authorities of the death threats issued by H.O. However, the public prosecutor had done nothing to protect the life of the deceased. In the applicant ’ s opinion, the fact that the authorities had not taken her mother ’ s complaint seriously was a clear indication that domestic violence was tolerated by society and the national authorities. 121. The applicant also claimed that, although H.O. had been convicted of murder, the punishment imposed on him was not a deterrent and was considerably less than the normal sentence imposed for murder. The imposition of a lenient sentence had resulted from the fact that, in his defence submissions before the Assize Court, the accused had claimed to have killed her mother in order to protect his honour. It was the general practice of the criminal courts in Turkey to mitigate sentences in cases of “honour crimes”. In cases concerning “honour crimes”, the criminal courts imposed a very lenient punishment or no punishment at all on the perpetrators of such crimes. 2. The Government 122. The Government stressed that the local authorities had provided immediate and tangible follow-up to the complaints lodged by the applicant and her mother. In this connection, subsequent to the filing of their complaints, the authorities had registered the complaints, conducted medical examinations, heard witnesses, conducted a survey of the scenes of the incidents and transmitted the complaints to the competent legal authorities. When necessary and depending on the gravity of the incident, the aggressor had been remanded in custody and had been convicted by the criminal courts. These proceedings had been carried out within the shortest time possible. The authorities had displayed diligence and were sensitive to the complaints, and no negligence had been shown. 123. However, by withdrawing their complaints, the applicant and her mother had prevented the authorities from pursuing criminal proceedings against H.O. and had thus contributed to the impunity enjoyed by the aggressor. In this regard, it did not appear from the case file that the applicant and her mother had withdrawn their complaints as a result of any pressure exerted on them either by H.O. or the public prosecutor in charge of the investigation. The pursuit of criminal proceedings against the aggressor was dependent on the complaints lodged or pursued by the applicant, since the criminal acts in question had not resulted in sickness or unfitness for work for ten days or more, within the meaning of Articles 456 § 4, 457 and 460 of the Criminal Code. Furthermore, in most cases the criminal courts had not convicted H.O. because the evidence against him was insufficient. Accordingly, the authorities could not be expected to separate the applicant and her husband and convict the latter while they were living together as a family, as this would amount to a breach of their rights under Article 8 of the Convention. 124. As regards the petition filed by the applicant ’ s mother on 27 February 2002, the Government claimed that the content of this petition was no different to the previous ones and was of a general nature. There was no tangible fact or specific indication that her life was indeed in danger. In the petition the mother had failed to request any protection at all but she had merely requested a speedy examination of her complaint and the punishment of the applicant ’ s husband. Nonetheless, subsequent to the receipt of the petition dated 27 February 2002, the authorities had registered the complaint and had held a hearing on 27 May 2002, which had been followed by other hearings. Finally, following the killing of the applicant ’ s mother by H.O., the latter had been convicted and had received a heavy punishment. 3. Interights, the third-party intervener 125. Referring to international practice, Interights submitted that where the national authorities failed to act with due diligence to prevent violence against women, including violence by private actors, or to investigate, prosecute and punish such violence, the State might be responsible for such acts. The jus cogens nature of the right to freedom from torture and the right to life required exemplary diligence on the part of the State with respect to investigation and prosecution of these acts. 126. In the context of domestic violence, victims were often intimidated or threatened into either not reporting the crime or withdrawing complaints. However, the responsibility to ensure accountability and guard against impunity lay with the State, not with the victim. International practice recognised that a broad range of interested persons, not just the victim, should be able to report and initiate an investigation into domestic violence. Further, international practice increasingly suggested that where there was sufficient evidence and it was considered in the public interest, prosecution of perpetrators of domestic violence should continue even when a victim withdrew her complaint. These developments indicated a trend away from requiring victim participation towards placing the responsibility for effective prosecution squarely on the State. 127. While a decision not to prosecute in a particular case would not necessarily be in breach of due diligence obligations, a law or practice which automatically paralysed a domestic violence investigation or prosecution where a victim withdrew her complaint would be. In respect of these obligations and with reference to the Fatma Yıldırım v. Austria decision of the CEDAW Committee (cited in the relevant international materials section above ), it was submitted that the State had not only to ensure an appropriate legislative framework, but also to ensure effective implementation and enforcement practice. B. The Court ’ s assessment 1. Alleged failure to protect the applicant ’ s mother ’ s life ( a) Relevant principles 128. The Court reiterates that the first sentence of Article 2 § 1 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see L.C.B. v. the United Kingdom, 9 June 1998, § 36, Reports 1998-III). This involves a primary duty on the State to secure the right to life by putting in place effective criminal-law provisions to deter the commission of offences against the person backed up by law-enforcement machinery for the prevention, suppression and punishment of breaches of such provisions. It also extends in appropriate circumstances to a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual (see Osman v. the United Kingdom, 28 October 1998, § 115, Reports 1998-VIII, cited in Kontrová v. Slovakia, no. 7510/04, § 49, 31 May 2007 ). 129. Bearing in mind the difficulties in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, the scope of the positive obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Not every claimed risk to life, therefore, can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. For a positive obligation to arise, it must be established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. Another relevant consideration is the need to ensure that the police exercise their powers to control and prevent crime in a manner which fully respects the due process and other guarantees which legitimately place restraints on the scope of their action to investigate crime and bring offenders to justice, including the guarantees contained in Articles 5 and 8 of the Convention (see Osman, cited above, § 116). 130. In the opinion of the Court, where there is an allegation that the authorities have violated their positive obligation to protect the right to life in the context of their above-mentioned duty to prevent and suppress offences against the person, it must be established to its satisfaction that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. Furthermore, having regard to the nature of the right protected by Article 2, a right fundamental in the scheme of the Convention, it is sufficient for an applicant to show that the authorities did not do all that could be reasonably expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge. This is a question which can only be answered in the light of all the circumstances of any particular case ( ibid.). ( b) Application of the above principles to the present case ( i) Scope of the case 131. On the above understanding, the Court will ascertain whether the national authorities have fulfilled their positive obligation to take preventive operational measures to protect the applicant ’ s mother ’ s right to life. In this connection, it must establish whether the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of the applicant ’ s mother from criminal acts by H.O. As it appears from the parties ’ submissions, a crucial question in the instant case is whether the local authorities displayed due diligence to prevent violence against the applicant and her mother, in particular by pursuing criminal or other appropriate preventive measures against H.O. despite the withdrawal of complaints by the victims. 132. However, before embarking upon these issues, the Court must stress that the issue of domestic violence, which can take various forms ranging from physical to psychological violence or verbal abuse, cannot be confined to the circumstances of the present case. It is a general problem which concerns all member States and which does not always surface since it often takes place within personal relationships or closed circuits and it is not only women who are affected. The Court acknowledges that men may also be the victims of domestic violence and, indeed, that children, too, are often casualties of the phenomenon, whether directly or indirectly. Accordingly, the Court will bear in mind the gravity of the problem at issue when examining the present case ( ii) Whether the local authorities could have foreseen a lethal attack from H.O. 133. Turning to the circumstances of the case, the Court observes that the applicant and her husband, H.O., had a problematic relationship from the very beginning. As a result of disagreements, H.O. resorted to violence against the applicant and the applicant ’ s mother therefore intervened in their relationship in order to protect her daughter. She thus became a target for H.O., who blamed her for being the cause of their problems (see paragraph 28 above). In this connection, the Court considers it important to highlight some events and the authorities ’ reaction. (i) On 10 April 1995 H.O. and A.O. beat up the applicant and her mother, causing severe physical injuries, and threatened to kill them. Although the applicant and her mother initially filed a criminal complaint about this event, the criminal proceedings against H.O. and A.O. were terminated because the victims withdrew their complaints (see paragraphs 9-11 above). (ii) On 11 April 1996 H.O. again beat the applicant, causing life-threatening injuries. H.O. was remanded in custody and a criminal prosecution was commenced against him for aggravated bodily harm. However, following the release of H.O., the applicant withdrew her complaint and the charges against H.O. were dropped (see paragraphs 13-19 above). (iii) On 5 February 1998 H.O. assaulted the applicant and her mother using a knife. All three were severely injured and the public prosecutor decided not to prosecute anyone on the ground that there was insufficient evidence (see paragraphs 20 and 21 above). (iv) On 4 March 1998 H.O. ran his car into the applicant and her mother. Both victims suffered severe injuries, and the medical reports indicated that the applicant was unfit for work for seven days and that her mother ’ s injuries were life-threatening. Subsequent to this incident, the victims asked the Chief Public Prosecutor ’ s Office to take protective measures in view of the death threats issued by H.O., and the applicant initiated divorce proceedings. The police investigation into the victims ’ allegations of death threats concluded that both parties had threatened each other and that the applicant ’ s mother had made such allegations in order to separate her daughter from H.O. for the purpose of revenge, and had also “wasted” the security forces ’ time. Criminal proceedings were instituted against H.O. for issuing death threats and attempted murder, but following H.O. ’ s release from custody (see paragraph 31 above) the applicant and her mother again withdrew their complaints. This time, although the prosecuting authorities dropped the charges against H.O. for issuing death threats and hitting the applicant, the Diyarbakır Assize Court convicted him for causing injuries to the mother and sentenced him to three months ’ imprisonment, which was later commuted to a fine (see paragraphs 23-36 above). (v) On 29 October 2001 H.O. stabbed the applicant seven times following her visit to her mother. H.O. surrendered to the police claiming that he had attacked his wife in the course of a fight caused by his mother-in-law ’ s interference with their marriage. After taking H.O. ’ s statements the police officers released him. However, the applicant ’ s mother applied to the Chief Public Prosecutor ’ s Office seeking the detention of H.O., and also claimed that she and her daughter had had to withdraw their complaints in the past because of death threats and pressure by H.O. As a result, H.O. was convicted of knife assault and sentenced to a fine (see paragraphs 37-44 above). (vi) On 14 November 2001 H.O. threatened the applicant but the prosecuting authorities did not press charges for lack of concrete evidence (see paragraphs 45 and 46 above). (vii) On 19 November 2001 the applicant ’ s mother filed a petition with the local public prosecutor ’ s office, complaining about the ongoing death threats and harassment by H.O., who had been carrying weapons. Again, the police took statements from H.O. and released him, but the public prosecutor pressed charges against him for making death threats (see paragraphs 47 ‑ 49 above ). (viii) Later, on 27 February 2002, the applicant ’ s mother applied to the public prosecutor ’ s office, informing him that H.O. ’ s threats had intensified and that their lives were in immediate danger. She therefore asked the police to take action against H.O. The police took statements from H.O. and the Diyarbakır Magistrate ’ s Court questioned him about the allegations only after the killing of the applicant ’ s mother. H.O. denied the allegations and claimed that he did not wish his wife to visit her mother, who was living an immoral life (see paragraphs 51-52 above). 134. In view of the above events, it appears that there was an escalating violence against the applicant and her mother by H.O. The crimes committed by H.O. were sufficiently serious to warrant preventive measures and there was a continuing threat to the health and safety of the victims. When examining the history of the relationship, it was obvious that the perpetrator had a record of domestic violence and there was therefore a significant risk of further violence. 135. Furthermore, the victims ’ situations were also known to the authorities and the mother had submitted a petition to the Diyarbakır Chief Public Prosecutor ’ s Office, stating that her life was in immediate danger and requesting the police to take action against H.O. However, the authorities ’ reaction to the applicant ’ s mother ’ s request was limited to taking statements from H.O. about the mother ’ s allegations. Approximately two weeks after this request, on 11 March 2002, he killed the applicant ’ s mother (see paragraph 54 above ). 136. Having regard to the foregoing, the Court finds that the local authorities could have foreseen a lethal attack by H.O. While the Court cannot conclude with certainty that matters would have turned out differently and that the killing would not have occurred if the authorities had acted otherwise, it reiterates that a failure to take reasonable measures which could have had a real prospect of altering the outcome or mitigating the harm is sufficient to engage the responsibility of the State (see E. and Others v. the United Kingdom, no. 33218/96, § 99, 26 November 2002 ). Therefore, the Court will next examine to what extent the authorities took measures to prevent the killing of the applicant ’ s mother. ( iii) Whether the authorities displayed due diligence to prevent the killing of the applicant ’ s mother 137. The Government claimed that each time the prosecuting authorities commenced criminal proceedings against H.O., they had to terminate those proceedings, in accordance with the domestic law, because the applicant and her mother withdrew their complaints. In their opinion, any further interference by the authorities would have amounted to a breach of the victims ’ Article 8 rights. The applicant explained that she and her mother had had to withdraw their complaints because of death threats and pressure exerted by H.O. 138. The Court notes at the outset that there seems to be no general consensus among States Parties regarding the pursuance of the criminal prosecution against perpetrators of domestic violence when the victim withdraws her complaints (see paragraphs 87 and 88 above). Nevertheless, there appears to be an acknowledgement of the duty on the part of the authorities to strike a balance between a victim ’ s Article 2, Article 3 or Article 8 rights in deciding on a course of action. In this connection, having examined the practices in the member States (see paragraph 89 above), the Court observes that there are certain factors that can be taken into account in deciding to pursue the prosecution: – the seriousness of the offence; – whether the victim ’ s injuries are physical or psychological; – if the defendant used a weapon; – if the defendant has made any threats since the attack; – if the defendant planned the attack; – the effect (including psychological) on any children living in the household; – the chances of the defendant offending again; – the continuing threat to the health and safety of the victim or anyone else who was, or could become, involved; – the current state of the victim ’ s relationship with the defendant and the effect on that relationship of continuing with the prosecution against the victim ’ s wishes; – the history of the relationship, particularly if there had been any other violence in the past; and – the defendant ’ s criminal history, particularly any previous violence. 139. It can be inferred from this practice that the more serious the offence or the greater the risk of further offences, the more likely that the prosecution should continue in the public interest, even if victims withdraw their complaints. 140. As regards the Government ’ s argument that any attempt by the authorities to separate the applicant and her husband would have amounted to a breach of their right to family life, and bearing in mind that under Turkish law there is no requirement to pursue the prosecution in cases where the victim withdraws her complaint and did not suffer injuries which renders her unfit for work for ten or more days, the Court will now examine whether the local authorities struck a proper balance between the victim ’ s Article 2 and Article 8 rights. 141. In this connection, the Court notes that H.O. resorted to violence from the very beginning of his relationship with the applicant. On many instances both the applicant and her mother suffered physical injuries and were subjected to psychological pressure, given the anguish and fear. For some assaults H.O. used lethal weapons, such as a knife or a shotgun, and he constantly issued death threats against the applicant and her mother. Having regard to the circumstances of the killing of the applicant ’ s mother, it may also be stated that H.O. had planned the attack, since he had been carrying a knife and a gun and had been wandering around the victim ’ s house on occasions prior to the attack (see paragraphs 47 and 54 above). 142. The applicant ’ s mother became a target as a result of her perceived involvement in the couple ’ s relationship, and the couple ’ s children can also be considered as victims on account of the psychological effects of the ongoing violence in the family home. As noted above, in the instant case, further violence was not only possible but even foreseeable, given the violent behaviour and criminal record of H.O., his continuing threat to the health and safety of the victims and the history of violence in the relationship (see paragraphs 10, 13, 23, 37, 45, 47 and 51 above). 143. In the Court ’ s opinion, it does not appear that the local authorities sufficiently considered the above factors when repeatedly deciding to discontinue the criminal proceedings against H.O. Instead, they seem to have given exclusive weight to the need to refrain from interfering with what they perceived to be a “family matter” (see paragraph 123 above). Moreover, there is no indication that the authorities considered the motives behind the withdrawal of the complaints. This is despite the applicant ’ s mother ’ s indication to the Diyarbakır Public Prosecutor that she and her daughter had withdrawn their complaints because of the death threats issued and pressure exerted on them by H.O. (see paragraph 39 above). It is also striking that the victims withdrew their complaints when H.O. was at liberty or following his release from custody (see paragraphs 9-12, 17-19, 31 and 35 above). 144. As regards the Government ’ s argument that any further interference by the national authorities would have amounted to a breach of the victims ’ rights under Article 8 of the Convention, the Court notes its ruling in a similar case of domestic violence (see Bevacqua and S. v. Bulgaria, no. 71127/01, § 83, 12 June 2008), where it held that the authorities ’ view that no assistance was required as the dispute concerned a “private matter” was incompatible with their positive obligations to secure the enjoyment of the applicants ’ rights. Moreover, the Court reiterates that, in some instances, the national authorities ’ interference with the private or family life of the individuals might be necessary in order to protect the health and rights of others or to prevent commission of criminal acts (see K.A. and A.D. v. Belgium, nos. 42758/98 and 45558/99, § 81, 17 February 2005). The seriousness of the risk to the applicant ’ s mother rendered such intervention by the authorities necessary in the present case. 145. However, the Court regrets to note that the criminal investigations in the instant case were strictly dependent on the pursuance of complaints by the applicant and her mother on account of the domestic - law provisions in force at the relevant time; namely Articles 456 § 4, 457 and 460 of the now defunct Criminal Code, which prevented the prosecuting authorities from pursuing the criminal investigations because the criminal acts in question had not resulted in sickness or unfitness for work for ten days or more (see paragraph 70 above). It observes that the application of the above- mentioned provisions and the cumulative failure of the domestic authorities to pursue criminal proceedings against H.O. deprived the applicant ’ s mother of the protection of her life and safety. In other words, the legislative framework then in force, particularly the minimum ten days ’ sickness unfitness requirement, fell short of the requirements inherent in the State ’ s positive obligations to establish and apply effectively a system punishing all forms of domestic violence and providing sufficient safeguards for the victims. The Court thus considers that, bearing in mind the seriousness of the crimes committed by H.O. in the past, the prosecuting authorities should have been able to pursue the proceedings as a matter of public interest, regardless of the victims ’ withdrawal of complaints (see, in this respect, Recommendation Rec(2002)5 of the Committee of the Ministers, paragraphs 80-82 above). 146. The legislative framework preventing effective protection for victims of domestic violence aside, the Court must also consider whether the local authorities displayed due diligence to protect the right to life of the applicant ’ s mother in other respects. 147. In this connection, the Court notes that despite the deceased ’ s complaint that H.O. had been harassing her, invading her privacy by wandering around her property and carrying knives and guns (see paragraph 47 above), the police and prosecuting authorities failed either to place H.O. in detention or to take other appropriate action in respect of the allegation that he had a shotgun and had made violent threats with it (see Kontrová, cited above, § 53). While the Government argued that there was no tangible evidence that the applicant ’ s mother ’ s life was in imminent danger, the Court observes that it is not in fact apparent that the authorities assessed the threat posed by H.O. and concluded that his detention was a disproportionate step in the circumstances; rather the authorities failed to address the issues at all. In any event, the Court would underline that in domestic violence cases perpetrators ’ rights cannot supersede victims ’ human rights to life and to physical and mental integrity (see the Fatma Yıldırım v. Austria and A.T. v. Hungary decisions of the CEDAW Committee, both cited above, §§ 12.1.5 and 9.3 respectively). 148. Furthermore, in the light of the State ’ s positive obligation to take preventive operational measures to protect an individual whose life is at risk, it might have been expected that the authorities, faced with a suspect known to have a criminal record of perpetrating violent attacks, would take special measures consonant with the gravity of the situation with a view to protecting the applicant ’ s mother. To that end, the local public prosecutor or the judge at the Diyarbakır Magistrate ’ s Court could have ordered on his/her initiative one or more of the protective measures enumerated under sections 1 and 2 of Law no. 4320 (see paragraph 70 above). They could also have issued an injunction with the effect of banning H.O. from contacting, communicating with or approaching the applicant ’ s mother or entering defined areas (see, in this respect, Recommendation Rec(2002)5 of the Committee of the Ministers, paragraph 82 above). On the contrary, in response to the applicant ’ s mother ’ s repeated requests for protection, the police and the Diyarbakır Magistrate ’ s Court merely took statements from H.O. and released him (see paragraphs 47-52 above). While the authorities remained passive for almost two weeks apart from taking statements, H.O. shot dead the applicant ’ s mother. 149. In these circumstances, the Court concludes that the national authorities cannot be considered to have displayed due diligence. They therefore failed in their positive obligation to protect the right to life of the applicant ’ s mother within the meaning of Article 2 of the Convention. 2. The effectiveness of the criminal investigation into the killing of the applicant ’ s mother 150. The Court reiterates that the positive obligations laid down in the first sentence of Article 2 of the Convention also require by implication that an efficient and independent judicial system should be set in place by which the cause of a murder can be established and the guilty parties punished (see, mutatis mutandis, Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 51, ECHR 2002 -I ). The essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility (see Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, §§ 69 and 71, ECHR 2002-II ). A requirement of promptness and reasonable expedition is implicit in the context of an effective investigation within the meaning of Article 2 of the Convention (see Yaşa v. Turkey, 2 September 1998, §§ 102 ‑ 04, Reports 1998-VI, and Çakıcı v. Turkey [GC], no. 2 3657/94, §§ 80-87 and 106, ECHR 1999-IV). It must be accepted that there may be obstacles or difficulties which prevent progress in an investigation in a particular situation. However, a prompt response by the authorities in investigating a use of lethal force may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of tolerance of unlawful acts (see Avşar v. Turkey, no. 25657/94, § 395, ECHR 2001-VII). 151. The Court notes that a comprehensive investigation has indeed been carried out by the authorities into the circumstances surrounding the killing of the applicant ’ s mother. However, although H.O. was tried and convicted of murder and illegal possession of a firearm by the Diyarbakır Assize Court, the proceedings are still pending before the Court of Cassation (see paragraphs 57 and 58 above). Accordingly, the criminal proceedings in question, which have already lasted more than six years, cannot be described as a prompt response by the authorities in investigating an intentional killing where the perpetrator had already confessed to the crime. 3. Conclusion 152. In the light of the foregoing, the Court considers that the above-mentioned failures rendered recourse to criminal and civil remedies equally ineffective in the circumstances. It accordingly dismisses the Government ’ s preliminary objection (see paragraph 114 above) based on non-exhaustion of these remedies. 153. Moreover, the Court concludes that the criminal - law system, as applied in the instant case, did not have an adequate deterrent effect capable of ensuring the effective prevention of the unlawful acts committed by H.O. The obstacles resulting from the legislation and failure to use the means available undermined the deterrent effect of the judicial system in place and the role it was required to play in preventing a violation of the applicant ’ s mother ’ s right to life as enshrined in Article 2 of the Convention. The Court reiterates in this connection that, once the situation has been brought to their attention, the national authorities cannot rely on the victim ’ s attitude for their failure to take adequate measures which could prevent the likelihood of an aggressor carrying out his threats against the physical integrity of the victim (see Osman, cited above, § 116). There has therefore been a violation of Article 2 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 154. The applicant complained that she had been subjected to violence, injury and death threats several times but that the authorities were negligent towards her situation, which caused her pain and fear in violation of Article 3 of the Convention, which provides: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. The parties ’ submissions 155. The applicant alleged that the injuries and anguish she had suffered as a result of the violence inflicted upon her by her husband had amounted to torture within the meaning of Article 3 of the Convention. Despite the ongoing violence and her repeated requests for help, however, the authorities had failed to protect her from her husband. It was as though the violence had been inflicted under State supervision. The insensitivity and tolerance shown by the authorities in the face of domestic violence had made her feel debased, hopeless and vulnerable. 156. The Government argued that the applicant ’ s withdrawal of complaints and her failure to cooperate with the authorities had prevented the prosecuting authorities from pursuing the criminal proceedings against her husband. They further claimed that, in addition to the available remedies under Law no. 4320, the applicant could have sought shelter in one of the guest houses set up to protect women with the cooperation of public institutions and non-governmental organisations (NGOs). In this respect, the applicant could have petitioned the Directorate of Social Services and Child Protection Agency for admission to one of the guest houses. The addresses of these guest houses were secret and they were protected by the authorities. 157. Interights maintained that States were required to take reasonable steps to act immediately to stop ill-treatment, whether by public or private actors, of which they have known or ought to have known. Given the opaque nature of domestic violence and the particular vulnerability of women who are too often frightened to report such violence, it is submitted that a heightened degree of vigilance is required of the State. B. The Court ’ s assessment 1. Applicable principles 158. The Court reiterates that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the nature and context of the treatment, its duration, its physical and mental effects and, in some instances, the sex, age and state of health of the victim (see Costello - Roberts v. the United Kingdom, 25 March 1993, § 30, Series A no. 247 ‑ C ). 159. As regards the question whether the State could be held responsible, under Article 3, for the ill-treatment inflicted on persons by non-state actors, the Court reiterates that the obligation on the High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment or punishment, including such ill-treatment administered by private individuals (see, mutatis mutandis, H.L.R. v. France, 29 April 1997, § 40, Reports 1997 ‑ III ). Children and other vulnerable individuals, in particular, are entitled to State protection, in the form of effective deterrence, against such serious breaches of personal integrity (see A. v. the United Kingdom, 23 September 1998, § 22, Reports 1998 ‑ VI ). 2. Application of the above principles to the case 160. The Court considers that the applicant may be considered to fall within the group of “vulnerable individuals” entitled to State protection (see A. v. the United Kingdom, cited above, § 22). In this connection, it notes the violence suffered by the applicant in the past, the threats issued by H.O. following his release from prison and her fear of further violence as well as her social background, namely the vulnerable situation of women in south-east Turkey. 161. The Court observes also that the violence suffered by the applicant, in the form of physical injuries and psychological pressure, were sufficiently serious to amount to ill-treatment within the meaning of Article 3 of the Convention. 162. Therefore, the Court must next determine whether the national authorities have taken all reasonable measures to prevent the recurrence of violent attacks against the applicant ’ s physical integrity. 163. In carrying out this scrutiny, and bearing in mind that the Court provides final authoritative interpretation of the rights and freedoms defined in Section I of the Convention, the Court will consider whether the national authorities have sufficiently taken into account the principles flowing from its judgments on similar issues, even when they concern other States. 164. Furthermore, in interpreting the provisions of the Convention and the scope of the State ’ s obligations in specific cases (see, mutatis mutandis, Demir and Baykara v. Turkey [GC], no. 34503/97, §§ 85 and 86, ECHR 2008) the Court will also look for any consensus and common values emerging from the practices of European States and specialised international instruments, such as the CEDAW, as well as giving heed to the evolution of norms and principles in international law through other developments such as the Belém do Pará Convention, which specifically sets out States ’ duties relating to the eradication of gender-based violence. 165. Nevertheless, it is not the Court ’ s role to replace the national authorities and to choose in their stead from among the wide range of possible measures that could be taken to secure compliance with their positive obligations under Article 3 of the Convention (see, mutatis mutandis, Bevacqua and S., cited above, § 82). Moreover, under Article 19 of the Convention and under the principle that the Convention is intended to guarantee not theoretical or illusory, but practical and effective rights, the Court has to ensure that a State ’ s obligation to protect the rights of those under its jurisdiction is adequately discharged (see Nikolova and Velichkova v. Bulgaria, no. 7888/03, § 61, 20 December 2007). 166. Turning to its examination of the facts, the Court notes that the local authorities, namely the police and public prosecutors, did not remain totally passive. After each incident involving violence, the applicant was taken for medical examination and criminal proceedings were instituted against her husband. The police and prosecuting authorities questioned H.O. in relation to his criminal acts, placed him in detention on two occasions, indicted him for issuing death threats and inflicting actual bodily harm and, subsequent to his conviction for stabbing the applicant seven times, sentenced him to pay a fine (see paragraphs 13, 24 and 44 above). 167. However, none of these measures were sufficient to stop H.O. from perpetrating further violence. In this respect, the Government blamed the applicant for withdrawing her complaints and failing to cooperate with the authorities, which prevented the latter from continuing the criminal proceedings against H.O., pursuant to the domestic law provisions requiring the active involvement of the victim (see paragraph 70 above). 168. The Court reiterates its opinion in respect of the complaint under Article 2 of the Convention, namely that the legislative framework should have enabled the prosecuting authorities to pursue the criminal investigations against H.O. despite the withdrawal of complaints by the applicant on the basis that the violence committed by H.O. was sufficiently serious to warrant prosecution and that there was a constant threat to the applicant ’ s physical integrity (see paragraphs 137-48 above). 169. However, it cannot be said that the local authorities displayed the required diligence to prevent the recurrence of violent attacks against the applicant, since the applicant ’ s husband perpetrated them without hindrance and with impunity to the detriment of the rights recognised by the Convention (see, mutatis mutandis, Maria da Penha v. Brazil, Case 12.051, 16 April 2001, Report No. 54/01, Inter-Am. Ct. H.R., Annual Report 2000, OEA/Ser.L/V.II.111 Doc. 20 rev. (2000), §§ 42-44). By way of example, the Court notes that, following the first major incident (see paragraphs 9 and 10 above ), H.O. again beat the applicant severely, causing her injuries which were sufficient to endanger her life, but he was released pending trial “considering the nature of the offence and the fact that the applicant had regained full health”. The proceedings were ultimately discontinued because the applicant withdrew her complaints (see paragraphs 13 and 19 above). Again, although H.O. assaulted the applicant and her mother using a knife and caused them severe injuries, the prosecuting authorities terminated the proceedings without conducting any meaningful investigation (see paragraphs 20 and 21 above). Likewise, H.O. ran his car into the applicant and her mother, this time causing injuries to the former and life-threatening injuries to the latter. He spent only twenty-five days in prison and received a fine for inflicting serious injuries on the applicant ’ s mother (see paragraphs 23-36 above). Finally, the Court was particularly struck by the Diyarbakır Magistrate ’ s Court ’ s decision to impose merely a small fine, which could be paid by instalments, on H.O. as punishment for stabbing the applicant seven times (see paragraphs 37 and 44 above ). 170. In the light of the foregoing, the Court considers that the response to the conduct of the applicant ’ s former husband was manifestly inadequate to the gravity of the offences in question (see, mutatis mutandis, Ali and Ayşe Duran v. Turkey, no. 42942/02, § 54, 8 April 2008). It therefore observes that the judicial decisions in this case reveal a lack of efficacy and a certain degree of tolerance, and had no noticeable preventive or deterrent effect on the conduct of H.O. 171. As regards the Government ’ s assertion that, in addition to the available remedies under Law no. 4320, the applicant could have sought shelter in one of the guest houses set up to protect women, the Court notes that until 14 January 1998 – the date on which Law no. 4320 entered into force – Turkish law did not provide for specific administrative and policing measures designed to protect vulnerable persons against domestic violence. Even after that date, it does not appear that the domestic authorities effectively applied the measures and sanctions provided by that Law with a view to protecting the applicant against her husband. Taking into account the overall amount of violence perpetrated by H.O., the public prosecutor ’ s office ought to have applied on its own motion the measures contained in Law no. 4320, without expecting a specific request to be made by the applicant for the implementation of that Law. 172. This being said, even assuming that the applicant had been admitted to one of the guest houses, as suggested by the Government, the Court notes that this would only be a temporary solution. Furthermore, it has not been suggested that there was any official arrangement to provide for the security of the victims staying in those houses. 173. Finally, the Court notes with grave concern that the violence suffered by the applicant had not come to an end and that the authorities had continued to display inaction. In this connection, the Court points out that, immediately after his release from prison, H.O. again issued threats against the physical integrity of the applicant (see paragraph 59 above). Despite the applicant ’ s petition of 15 April 2008 requesting the prosecuting authorities to take measures for her protection, nothing was done until after the Court requested the Government to provide information about the measures that have been taken by their authorities. Following this request, on the instructions of the Ministry of Justice, the Diyarbakır Public Prosecutor questioned H.O. about the death threats issued by him and took statements from the applicant ’ s current boyfriend (see paragraphs 60-67 above). 174. The applicant ’ s legal representative again informed the Court that the applicant ’ s life was in immediate danger, given the authorities ’ continuous failure to take sufficient measures to protect her client (see paragraph 68 above). It appears that following the transmission of this complaint and the Court ’ s request for an explanation in this respect, the local authorities have now put in place specific measures to ensure the protection of the applicant (see paragraph 69 above). 175. Having regard to the overall ineffectiveness of the remedies suggested by the Government in respect of the complaints under Article 3, the Court dismisses the Government ’ s objection of non-exhaustion of domestic remedies. 176. The Court concludes that there has been a violation of Article 3 of the Convention as a result of the State authorities ’ failure to take protective measures in the form of effective deterrence against serious breaches of the applicant ’ s personal integrity by her husband. IV. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION READ IN CONJUNCTION WITH ARTICLES 2 AND 3 177. The applicant complained under Article 14 of the Convention, read in conjunction with Articles 2 and 3, that she and her mother had been discriminated against on the basis of their gender. Article 14 of the Convention provides: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” A. The parties ’ submissions 1. The applicant 178. The applicant alleged that the domestic law of the respondent State was discriminatory and insufficient to protect women, since a woman ’ s life was treated as inferior in the name of family unity. The former Civil Code, which was in force at the relevant time, contained numerous provisions distinguishing between men and women, such as the husband being the head of the family, his wishes taking precedence as the representative of the family union. The then Criminal Code also treated women as second-class citizens. A woman was viewed primarily as the property of society and of the male within the family. The most important indicator of this was that sexual offences were included in the section entitled “Crimes Relating to General Morality and Family Order”, whereas in fact sexual offences against women are direct attacks on a woman ’ s personal rights and freedoms. It was because of this perception that the Criminal Code imposed lighter sentences on persons who had murdered their wives for reasons of family honour. The fact that H.O. received a sentence of fifteen years is a consequence of that classification in the Criminal Code. 179. Despite the reforms carried out by the Government in the areas of the Civil Code and Criminal Code in 2002 and 2004 respectively, domestic violence inflicted by men is still tolerated and impunity is granted to the aggressors by judicial and administrative bodies. The applicant and her mother had been victims of violations of Articles 2, 3, 6 and 13 of the Convention merely because of the fact that they were women. In this connection, the applicant drew the Court ’ s attention to the improbability of any men being a victim of similar violations. 2. The Government 180. The Government averred that there was no gender discrimination in the instant case, since the violence in question was mutual. Furthermore, it cannot be claimed that there was institutionalised discrimination resulting from the criminal or family laws or from judicial and administrative practice. Nor could it be argued that the domestic law contained any formal and explicit distinction between men and women. It had not been proven that the domestic authorities had not protected the right to life of the applicant because she was a woman. 181. The Government further noted that subsequent to the reforms carried out in 2002 and 2004, namely revision of certain provisions of the Civil Code and the adoption of a new Criminal Code, and the entry into force of Law no. 4320, Turkish law provided for sufficient guarantees, meeting international standards, for the protection of women against domestic violence. The Government concluded that this complaint should be declared inadmissible for failure to exhaust domestic remedies or as being manifestly ill-founded since these allegations had never been brought to the attention of the domestic authorities and, in any event, were devoid of substance. 3. Interights, the third-party intervener 182. Interights submitted that the failure of the State to protect against domestic violence would be tantamount to failing in its obligation to provide equal protection of the law based on sex. They further noted that there was increasing recognition internationally – both within the United Nations and Inter-American systems – that violence against women was a form of unlawful discrimination. B. The Court ’ s assessment 1. The relevant principles 183. In its recent ruling in D.H. and Others v. the Czech Republic ([GC], no. 57325/00, 13 November 2007, §§ 175-80, ECHR 2007 ‑ IV ), the Court laid down the following principles on the issue of discrimination: “175. The Court has established in its case-law that discrimination means treating differently, without an objective and reasonable justification, persons in relevantly similar situations ( see Willis v. the United Kingdom, no. 36042/97, § 48, ECHR 2002 ‑ IV, and Okpisz v. Germany, no. 59140/00, § 33, 25 October 2005). ... The Court has also accepted that a general policy or measure that has disproportionately prejudicial effects on a particular group may be considered discriminatory notwithstanding that it is not specifically aimed at that group (see Hugh Jordan [ v. the United Kingdom, no. 24746/94 ], § 154 [, 4 May 2001 ], and Hoogendijk [ v. the Netherlands (dec.), no. 58461/00, 6 January 2005 ] ), and that discrimination potentially contrary to the Convention may result from a de facto situation (see Zarb Adami [ v. Malta, no. 17209/02 ], § 76 [, ECHR 2006- VIII] ). ... 177. As to the burden of proof in this sphere, the Court has established that once the applicant has shown a difference in treatment, it is for the Government to show that it was justified (see, among other authorities, Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, §§ 91-92, ECHR 1999-III, and Timishev [ v. Russia, nos. 55762/00 and 55974/00], § 57 [, ECHR 2005-XII] ). 178. As regards the question of what constitutes prima facie evidence capable of shifting the burden of proof on to the respondent State, the Court stated in Nachova and Others ( [ v. Bulgaria [GC], nos. 43577/98 and 43579/98 ], § 147 [, ECHR 2005-VII] ) that in proceedings before it there are no procedural barriers to the admissibility of evidence or pre-determined formulae for its assessment. The Court adopts the conclusions that are, in its view, supported by the free evaluation of all evidence, including such inferences as may flow from the facts and the parties ’ submissions. According to its established case-law, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Moreover, the level of persuasion necessary for reaching a particular conclusion and, in this connection, the distribution of the burden of proof are intrinsically linked to the specificity of the facts, the nature of the allegation made and the Convention right at stake. 179. The Court has also recognised that Convention proceedings do not in all cases lend themselves to a rigorous application of the principle affirmanti incumbit probatio (he who alleges something must prove that allegation – see Aktaş v. Turkey, no. 24351/94, § 272, ECHR 2003 ‑ V). In certain circumstances, where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII, and Anguelova v. Bulgaria, no. 38361/97, § 111, ECHR 2002-IV). In Nachova and Others ( cited above, § 157), the Court did not rule out requiring a respondent Government to disprove an arguable allegation of discrimination in certain cases, even though it considered that it would be difficult to do so in that particular case, in which the allegation was that an act of violence had been motivated by racial prejudice. It noted in that connection that in the legal systems of many countries proof of the discriminatory effect of a policy, decision or practice would dispense with the need to prove intent in respect of alleged discrimination in employment or in the provision of services. 180. As to whether statistics can constitute evidence, the Court has in the past stated that statistics could not in themselves disclose a practice which could be classified as discriminatory ( see Hugh Jordan, cited above, § 154). However, in more recent cases on the question of discrimination in which the applicants alleged a difference in the effect of a general measure or de facto situation ( see Hoogendijk, cited above, and Zarb Adami, cited above, §§ 77-78), the Court relied extensively on statistics produced by the parties to establish a difference in treatment between two groups (men and women) in similar situations. Thus, in Hoogendijk the Court stated: “[W]here an applicant is able to show, on the basis of undisputed official statistics, the existence of a prima facie indication that a specific rule – although formulated in a neutral manner – in fact affects a clearly higher percentage of women than men, it is for the respondent Government to show that this is the result of objective factors unrelated to any discrimination on grounds of sex. If the onus of demonstrating that a difference in impact for men and women is not in practice discriminatory does not shift to the respondent Government, it will be in practice extremely difficult for applicants to prove indirect discrimination.” 2. Application of the above principles to the facts of the present case ( a ) The meaning of discrimination in the context of domestic violence 184. The Court notes at the outset that when it considers the object and purpose of the Convention provisions, it also takes into account the international-law background to the legal question before it. Being made up of a set of rules and principles that are accepted by the vast majority of States, the common international or domestic law standards of European States reflect a reality that the Court cannot disregard when it is called upon to clarify the scope of a Convention provision that more conventional means of interpretation have not enabled it to establish with a sufficient degree of certainty (see Saadi v. the United Kingdom [GC], no. 13229/03, § 63, ECHR 2008, cited in Demir and Baykara, cited above, § 76). 185. In this connection, when considering the definition and scope of discrimination against women, in addition to the more general meaning of discrimination as determined in its case-law (see paragraph 183 above), the Court has to have regard to the provisions of more specialised legal instruments and the decisions of international legal bodies on the question of violence against women. 186. In that context, the CEDAW defines discrimination against women under Article 1 as “... any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.” 187. The CEDAW Committee has reiterated that violence against women, including domestic violence, is a form of discrimination against women (see paragraph 74 above). 188. The United Nations Commission on Human Rights expressly recognised the nexus between gender-based violence and discrimination by stressing in resolution 2003/45 that “all forms of violence against women occur within the context of de jure and de facto discrimination against women and the lower status accorded to women in society and are exacerbated by the obstacles women often face in seeking remedies from the State.” 189. Furthermore, the Belém do Pará Convention, which is so far the only regional multilateral human rights treaty to deal solely with violence against women, describes the right of every woman to be free from violence as encompassing, among others, the right to be free from all forms of discrimination. 190. Finally, the Inter-American Commission also characterised violence against women as a form of discrimination owing to the State ’ s failure to exercise due diligence to prevent and investigate a domestic violence complaint (see Maria da Penha v. Brazil, cited above, § 80). 191. It transpires from the above-mentioned rules and decisions that the State ’ s failure to protect women against domestic violence breaches their right to equal protection of the law and that this failure does not need to be intentional. ( b ) The approach to domestic violence in Turkey 192. The Court observes that although the Turkish law then in force did not make explicit distinction between men and women in the enjoyment of rights and freedoms, it needed to be brought into line with international standards in respect of the status of women in a democratic and pluralistic society. Like the CEDAW Committee (see the Concluding Comments on the combined fourth and fifth periodic report of Turkey CEDAW/C/TUR/4 ‑ 5 and Corr.1, 15 February 2005, §§ 12-21), the Court welcomes the reforms carried out by the Government, particularly the adoption of Law no. 4320 which provides for specific measures for protection against domestic violence. It thus appears that the alleged discrimination at issue was not based on the legislation per se but rather resulted from the general attitude of the local authorities, such as the manner in which the women were treated at police stations when they reported domestic violence and judicial passivity in providing effective protection to victims. The Court notes that the Turkish Government have already recognised these difficulties in practice when discussing the issue before the CEDAW Committee ( ibid. ). 193. In that regard, the Court notes that the applicant produced reports and statistics prepared by two leading NGOs, the Diyarbakır Bar Association and Amnesty International, with a view to demonstrating discrimination against women (see paragraphs 94-97 and 99-104 above). Bearing in mind that the findings and conclusions reached in these reports have not been challenged by the Government at any stage of the proceedings, the Court will consider them together with its own findings in the instant case (see Hoogendijk v. the Netherlands (dec.), no. 54861/00, 6 January 2005, and Zarb Adami v. Malta, no. 17209/02, §§ 77-78, ECHR 2006-VIII ). 194. Having examined these reports, the Court finds that the highest number of reported victims of domestic violence is in Diyarbakır, where the applicant lived at the relevant time, and that the victims were all women who suffered mostly physical violence. The great majority of these women were of Kurdish origin, illiterate or of a low level of education and generally without any independent source of income (see paragraph 98 above). 195. Furthermore, there appear to be serious problems in the implementation of Law no. 4320, which was relied on by the Government as one of the remedies for women facing domestic violence. The research conducted by the above- mentioned organisations indicates that when victims report domestic violence to police stations, police officers do not investigate their complaints but seek to assume the role of mediator by trying to convince the victims to return home and drop their complaint. In this connection, police officers consider the problem as a “family matter with which they cannot interfere” (see paragraphs 92, 96 and 102 above). 196. It also transpires from these reports that there are unreasonable delays in issuing injunctions by the courts, under Law no. 4320, because the courts treat them as a form of divorce action and not as an urgent action. Delays are also frequent when it comes to serving injunctions on the aggressors, given the negative attitude of the police officers (see paragraphs 91-93, 95 and 101 above). Moreover, the perpetrators of domestic violence do not seem to receive dissuasive punishments, because the courts mitigate sentences on the grounds of custom, tradition or honour (see paragraphs 103 and 106 above). 197. As a result of these problems, the above- mentioned reports suggest that domestic violence is tolerated by the authorities and that the remedies indicated by the Government do not function effectively. Similar findings and concerns were expressed by the CEDAW Committee when it noted “the persistence of violence against women, including domestic violence, in Turkey ” and called upon the respondent State to intensify its efforts to prevent and combat violence against women. It further underlined the need to fully implement and carefully monitor the effectiveness of Law no. 4320 on the protection of the family, and of related policies in order to prevent violence against women, to provide protection and support services to the victims, and punish and rehabilitate offenders (see the Concluding Comments, § 28). 198. In the light of the foregoing, the Court considers that the applicant has been able to show, supported by unchallenged statistical information, the existence of a prima facie indication that the domestic violence affected mainly women and that the general and discriminatory judicial passivity in Turkey created a climate that was conducive to domestic violence. ( c ) Whether the applicant and her mother have been discriminated against on account of the authorities ’ failure to provide equal protection of law 199. The Court has established that the criminal ‑ law system, as operated in the instant case, did not have an adequate deterrent effect capable of ensuring the effective prevention of unlawful acts by H.O. against the personal integrity of the applicant and her mother and thus violated their rights under Articles 2 and 3 of the Convention. 200. Bearing in mind its finding above that the general and discriminatory judicial passivity in Turkey, albeit unintentional, mainly affected women, the Court considers that the violence suffered by the applicant and her mother may be regarded as gender-based violence which is a form of discrimination against women. Despite the reforms carried out by the Government in recent years, the overall unresponsiveness of the judicial system and impunity enjoyed by the aggressors, as found in the instant case, indicated that there was insufficient commitment to take appropriate action to address domestic violence (see, in particular, section 9 of the CEDAW Committee ’ s General Recommendation No. 19, cited at paragraph 74 above). 201. Taking into account the ineffectiveness of domestic remedies in providing equal protection of law to the applicant and her mother in the enjoyment of their rights guaranteed by Articles 2 and 3 of the Convention, the Court holds that there existed special circumstances which absolved the applicant from her obligation to exhaust domestic remedies. It therefore dismisses the Government ’ s objection on non-exhaustion in respect of the complaint under Article 14 of the Convention. 202. In view of the above, the Court concludes that there has been a violation of Article 14 of the Convention, read in conjunction with Articles 2 and 3, in the instant case. V. ALLEGED VIOLATION OF ARTICLES 6 AND 13 OF THE CONVENTION 203. Relying on Articles 6 and 13 of the Convention, the applicant complained that the criminal proceedings brought against H.O. were ineffective and had failed to provide sufficient protection for her and her mother. 204. The Government contested that argument. 205. Having regard to the violations found under Articles 2, 3 and 14 of the Convention (see paragraphs 153, 17 6 and 202 above), the Court does not find it necessary to examine the same facts also in the context of Articles 6 and 13. VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION 206. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 207. The applicant claimed 70,000 Turkish liras (TRL) (approximately 35,000 euros (EUR)) in respect of pecuniary damage resulting from the death of her mother and TRL 250,000 (approximately EUR 125,000) for non ‑ pecuniary damage. She explained that subsequent to the killing of her mother she had been deprived of any economic support from her. The killing of her mother and ongoing violence perpetrated by her former husband had caused her stress and anguish, as well as irreparable damage to her psychological well-being and self-esteem. 208. The Government submitted that the amounts claimed were not justified in the circumstances of the case. They claimed, in the alternative, that the amounts were excessive and that any award to be made under this head should not lead to unjust enrichment. 209. As regards the applicant ’ s claim for pecuniary damage, the Court notes that while the applicant has demonstrated that on a number of occasions she had sought shelter at her mother ’ s home, it has not been proven that she was in any way financially dependent on her. However, this does not exclude an award in respect of pecuniary damage being made to an applicant who has established that a close member of the family has suffered a violation of the Convention (see Aksoy v. Turkey, 18 December 1996, § 113, Reports 1996-VI, where the pecuniary claims made by the applicant prior to his death in respect of loss of earnings and medical expenses arising out of detention and torture were taken into account by the Court in making an award to the applicant ’ s father, who had continued the application). In the present case, however, the claims for pecuniary damage relate to alleged losses accruing subsequent to the death of the applicant ’ s mother. The Court is not convinced that the applicant ’ s mother incurred any losses before her death. Thus, the Court does not find it appropriate in the circumstances of this case to make any award to the applicant in respect of pecuniary damage. 210. On the other hand, as regards the non-pecuniary damage, the Court notes that the applicant has undoubtedly suffered anguish and distress on account of the killing of her mother and the authorities ’ failure to undertake sufficient measures to prevent the domestic violence perpetrated by her husband and to give him deterrent punishment. Ruling on an equitable basis, the Court awards the applicant EUR 30,000 in respect of the damage sustained by her as a result of violations of Articles 2, 3 and 14 of the Convention. B. Costs and expenses 211. The applicant also claimed TRL 15,500 (approximately EUR 7,750) for the costs and expenses incurred before the Court. This included fees and costs incurred in respect of the preparation of the case (38 hours ’ legal work) and attendance at the hearing before the Court in Strasbourg as well as other expenses, such as telephone, fax, translation or stationary. 212. The Government submitted that in the absence of any supporting documents the applicant ’ s claim under this head should be rejected. 213. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 6,500 for costs and expenses for the proceedings before the Court, less EUR 1,494 received by way of legal aid from the Council of Europe. C. Default interest 214. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The European Court of Human Rights held that there had been a violation of Article 2 (right to life) of the European Convention on Human Rights concerning the murder of the applicant’s mother and a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention concerning the State’s failure to protect the applicant. It also held – for the first time in a domestic violence case – that there had been a violation of Article 14 (prohibition of discrimination) of the Convention in conjunction with Articles 2 and 3. In this respect, the Court observed in particular that domestic violence affected mainly women, while the general and discriminatory judicial passivity in Turkey created a climate that was conducive to it. The violence suffered by the applicant and her mother could therefore be regarded as having been gender-based and discriminatory against women. Furthermore, despite the reforms carried out by the Turkish Government in recent years, the overall unresponsiveness of the judicial system and the impunity enjoyed by aggressors, as in the applicant’s case, indicated an insufficient commitment on the part of the authorities to take appropriate action to address domestic violence. |
439 | Medical assistance for prisoners with a physical illness | II. RELEVANT DOMESTIC LAW AND PRACTICE 25. French National Assembly – Report drawn up on behalf of the Commission of Inquiry on the situation in France 's prisons (vol. I, p. 249, 28 June 2000 ) Extract from Part V (“Controlling the prison population: an essential goal”): “A. Stemming the influx (1) Limiting the imprisonment of certain groups ... (e) Sick or elderly prisoners The increasing number of elderly prisoners has already been noted; at the end of 1999 there were 1,455 prisoners over the age of 60, a figure which has almost doubled in four years. This upsurge is linked, in particular, to the rise in the number of convictions for sexual harassment, rape and incest. The inadequate provision of care for those prisoners and, more broadly, for prisoners who are seriously ill or dependent has also been discussed. The presence of such persons in prison raises the very real issue of their dying there. Warders and other inmates are not prepared for that eventuality and no proper arrangements are in place for assisting prisoners in their final moments. Dying in prison means experiencing a feeling of hopeless solitude. It amounts to an admission of failure and waste for families unable to be present as the end approaches. All prison staff try, wherever possible, to transfer inmates to hospital in their final days; however, this again raises the issue of escort officers and the difficulty of calling on the services of the police or the gendarmerie. Mention has also frequently been made of the attitude of doctors, who all too often send patients back to prison once the alert is over, just as easily as though they were returning home. One case in Caen where a doctor sent the patient back to prison only for him to die two days later seems to have had a particularly profound effect on prison staff. There is no dignity in dying in prison. The question therefore arises whether the sick or the elderly should continue to be detained. Currently, the President alone is empowered to grant a pardon on medical grounds. However, it appears that this measure is recommended sparingly and granted even more cautiously; in 1998 twenty-seven such applications were referred to the President and pardons were granted in fourteen cases, while in 1999 eighteen out of thirty-three proposals resulted in a pardon. ... Indeed, a review of the procedure for granting pardons on medical grounds would appear necessary; there is no reason why such decisions should continue to be left to the President. Responsibility for the procedure should be vested in the judge for the execution of sentences, who could base his decision on expert medical assessments in which it was concluded that the prisoner was suffering from a life-threatening illness.” 26. The Code of Criminal Procedure (CCP) (i) Since the Law of 18 January 1994 came into force the provision of treatment for prisoners has been the responsibility of the public hospital service. Accordingly, prisoners receive treatment from medical units that are set up within prisons and are directly attached to the nearest public hospital (Article D 368). (ii) The CCP contains the following provisions on parole: Article 722 “At each prison the judge responsible for the execution of sentences shall determine the principal terms of detention for each convicted person. Subject to the limits and conditions prescribed by law, he shall grant ... parole ... Except in urgent cases, he shall give his decision after hearing the opinion of the Sentences Board ... ...” (Law no. 2000-516 of 15 June 2000, applicable from 1 January 2001 ) “Measures entailing ... parole shall be granted, deferred, refused, withdrawn or revoked in a reasoned decision by the judge responsible for the execution of sentences, who shall examine the case of his own motion, at the request of the convicted person or on an application by the public prosecutor ...” Article 729 (Law no. 2000-516 of 15 June 2000 ) “Parole is designed to encourage the rehabilitation of convicted prisoners and prevent them from reoffending. Convicted persons serving one or more prison sentences may be granted parole if they have made serious efforts to readjust to society, particularly if they can show that they have engaged in occupational activities, or regularly attended an education or vocational training course, or have taken part in a work-experience scheme, or had a temporary contract of employment with a view to their social integration, or that their presence is essential to the life of their family, or that they have to undergo treatment ...” (Law no 92-1336 of 16 December 1992) “Subject to Article 132-23 of the Criminal Code, parole may be granted if the length of the sentence already served by the prisoner is at least equal to that remaining to be served. However, reoffenders ... may only be granted parole if the length of the sentence already served is at least double that remaining to be served. ...” Article 729-3 (Law no. 2000-516 of 15 June 2000 ) “Parole may be granted to any person who has been sentenced to a term of imprisonment of four years or less, or who has four years or less of his or her sentence to serve, where the person exercises parental responsibility over a child under the age of 10 who habitually lives with him or her. ...” Article 730 “Where a prison sentence of ten years or less has been imposed, or where, regardless of the length of the sentence initially imposed, the portion remaining to be served amounts to three years or less, parole shall be granted by the judge responsible for the execution of sentences, in the manner prescribed in Article 722. In other cases, parole shall be granted by the regional parole court, in the manner prescribed in Article 722-1. ...” A circular of 18 December 2000 (CRIM 00-15 F1), outlining the provisions of the Law of 15 June 2000 on reinforcing the presumption of innocence and victims' rights in relation to the enforcement of sentences, states: “Under the new Article 729-3 ..., parole may be granted to any person who has been sentenced to a term of imprisonment of four years or less, or who has four years or less of a sentence to serve, where that person exercises parental responsibility over a child under the age of 10 who habitually lives with him or her. ... Those provisions do not invalidate the general requirement in Article 729 whereby the judge responsible for the execution of sentences must assess whether serious efforts have been made to readjust to society. They do not therefore imply that the granting of parole for which they provide is systematic. However, depending on the length of the initial sentence, they may allow prisoners to be released at an earlier stage than would be possible under that Article. ...” The provisions in question increase the powers of the judge responsible for the execution of sentences with regard to parole and are designed to counter long-standing criticism of the fact that French law previously made no provision for the early release of terminally ill prisoners, other than by means of an application for a pardon on medical grounds at the discretion of the French President (Articles 17 and 19 of the Constitution). (iii) A law of 4 March 2002 on patients' rights and the quality of the health system supplements the CCP and adds a new Article 720-1-1 providing for the possibility of suspending a sentence “regardless of the nature of the sentence or the portion remaining to be served ... where it has been established that the prisoner has a life-threatening illness or that his or her state of health is incompatible in the long term with continued detention, save in cases where persons detained in a psychiatric institution are admitted to hospital”. The judge may direct that the sentence be suspended indefinitely. He must arrange for two expert assessments in order to determine whether a sentence should be suspended or whether a suspension should be lifted. ( iv ) Article 803 CCP provides : “No one may be forced to wear handcuffs or restraints unless he is considered either a danger to others or to himself, or likely to attempt to abscond.” A general circular on that Article (C 803 of 1 March 1993) states: “Section 60 of the Law of 4 January 1993, which came into force on the date of its publication, introduces an Article 803, laying down the principle that no one may be forced to wear handcuffs or restraints unless he is considered either a danger to others or to himself, or likely to attempt to abscond. That provision applies to all members of an escort, regardless of whether the person concerned is being held in police custody, brought to court, detained pending trial or detained following conviction. It is for the public officials or members of the armed forces comprising the escort to assess, having regard to the circumstances of the case, to the age of the person under escort and to any information obtained about his character, whether there is evidence of any of the dangers which alone may justify the use of handcuffs or restraints, in accordance with the legislature's intention. Except in special circumstances, persons being detained by the police after voluntarily surrendering to custody, persons whose mobility is impaired on account of their age or health and persons sentenced to only a short term of imprisonment are unlikely to pose the dangers referred to in the Law. ...” III. RELEVANT INTERNATIONAL LAW AND PRACTICE 27. Report to the Government of the French Republic on the visit to France by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 14 to 26 May 2000 Although the quality of the material conditions of detention at Lannemezan Prison was found to be high (see paragraph 78 of the report), transfers to outside hospitals continued to cause the CPT concern during its prison visits: “In spite of the recommendations made by the CPT in paragraph 144 of its report on the 1996 visit, the delegation that carried out the visit in 2000 has again obtained information (especially in Lyons) suggesting that the conditions in which detainees are transferred to hospital and examined and treated there are in breach of medical ethics: patients are systematically handcuffed with force, regardless of their state of health or age, are examined and treated in the presence of law-enforcement officials, and are physically attached to their hospital beds. In this connection, the French authorities have pointed out that they have drawn up a draft circular to promote the application of the principle that handcuffs or restraints are to be used in exceptional cases only. The CPT recommends that the adoption of the circular be expedited and that the document contain express reference to the recommendations set out in paragraph 144 of its report on the 1996 visit, namely: – that all medical check-ups, examinations and treatment in public hospitals take place out of the hearing and – unless the medical staff concerned request otherwise in a given case – out of the sight of law-enforcement officials; – that the practice of attaching prisoners to their hospital beds for security reasons be prohibited. ... The CPT calls upon the French authorities to complete the implementation of the national hospitalisation scheme as soon as possible in order to ensure that, throughout the country, prisoners are provided with hospital treatment in conditions that comply with medical ethics and respect human dignity.” (paragraph 105 of the report) 28. Third General Report on the CPT's activities covering the period 1 January to 31 December 1992 (Section III – Health care services in prisons) “(iv) prisoners unsuited for continued detention Typical examples of this kind of prisoner are those who are the subject of a short-term fatal prognosis, who are suffering from a serious disease which cannot be properly treated in prison conditions, who are severely handicapped or of advanced age. The continued detention of such persons in a prison environment can create an intolerable situation. In cases of this type, it lies with the prison doctor to draw up a report for the responsible authority, with a view to suitable alternative arrangements being made.” 29. Recommendation No. R (98) 7 of the Committee of Ministers of the Council of Europe concerning the ethical and organisational aspects of health care in prison (adopted on 8 April 1998 ) “C. Persons unsuited to continued detention: serious physical handicap, advanced age, short term fatal prognosis 50. Prisoners with serious physical handicaps and those of advanced age should be accommodated in such a way as to allow as normal a life as possible and should not be segregated from the general prison population. Structural alterations should be effected to assist the wheelchair-bound and handicapped on lines similar to those in the outside environment. 51. The decision as to when patients subject to short term fatal prognosis should be transferred to outside hospital units should be taken on medical grounds. While awaiting such transfer, these patients should receive optimum nursing care during the terminal phase of their illness within the prison health care centre. In such cases provision should be made for periodic respite care in an outside hospice. The possibility of a pardon for medical reasons or early release should be examined.” 30. Recommendation Rec (2000)22 of the Committee of Ministers to the member States on improving the implementation of the European rules on community sanctions and measures Appendix 2 : guiding principles for achieving a wider and more effective use of community sanctions and measures: “ Legislation 1. Provision should be made for a sufficient number of suitably varied community sanctions and measures of which the following are examples: ... – suspension of the enforcement of a sentence to imprisonment with imposed conditions; ...” THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 31. The applicant complained of his continued detention and the conditions in which he had been detained despite being seriously ill. He relied on Article 3 of the Convention, which provides: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. The parties' submissions 32. The applicant considered that imprisonment should merely entail depriving a person of his freedom of movement and that all other fundamental rights remained intact during detention. The Court should therefore, in his opinion, set out to determine whether the suffering he had endured in the course of his illness while in prison had attained a sufficient level of severity to fall within the scope of Article 3 of the Convention. 33. In the applicant's submission, detention was in itself incompatible with the condition of prisoners suffering from life-threatening diseases. He had been in that position from 1998 onwards, and a fortiori in June 2000 when Dr D. had concluded in his report that treatment in a specialist unit was necessary. In spite of that, the authorities had merely transferred him to Muret Prison instead of suspending his sentence as was possible under Article 722 of the Code of Criminal Procedure or allowing his application for a pardon on medical grounds. The enactment of the Law of 4 March 2002 (see “Relevant domestic law and practice” above) amounted, he argued, to an acknowledgment that Article 3 of the Convention was breached where continued detention was incompatible with an extremely serious medical condition. 34. The severity of the suffering he had endured while in detention and the manner in which he had been provided with medical care also qualified as treatment contrary to Article 3 of the Convention. Firstly, his detention in a communal cell in Lannemezan Prison until June 2000 without any sanitary precautions being taken, at a time when his immune system was being severely weakened by chemotherapy, had created an inhuman and degrading situation for him. Furthermore, the appalling conditions in which he had been escorted from prison to receive medical treatment, being constantly kept in chains despite having never attempted to abscond, had caused him suffering and placed him in a degrading situation. The applicant added that the journeys to hospital in a prison van had been painful (an ambulance had not been used for hospital visits until May 2000). He also asserted that during the chemotherapy sessions his feet had been chained up and one of his wrists had been attached to his hospital bed. He had also been kept in chains during an operation carried out in late 1999 with his escort and gendarmes present, on which occasion he had been fitted with a “ portacath ” so that treatment could be administered to him. The applicant considered that the use of handcuffs had been unjustified in view of his physical weakness and his unblemished disciplinary record, and submitted that there had been no particular reason for the escort officers to think that he posed any kind of danger. Lastly, the applicant complained of the conditions in which he had been given treatment with law-enforcement officers present. Their presence had been particularly humiliating and had led to his refusal to consent to treatment in June 2000. The applicant concluded that his treatment in prison had been inappropriate in view of his medical condition and had caused sufficient physical and mental suffering to amount to inhuman and degrading treatment within the meaning of Article 3 of the Convention. 35. The Government submitted that the applicant's health had been regularly monitored by the Outpatient Consultation and Treatment Unit at Lannemezan Prison and at Toulouse University Hospital. When he had been transferred to Muret Prison, his medical records had been handed over to the prison's consultation and treatment unit, which had consequently been able to follow up the treatment. From November 2000 onwards the applicant had been taken to Toulouse University Hospital for monthly chemotherapy sessions as an outpatient. That treatment had continued on a regular basis until the applicant had been released. The Government observed that the applicant had been in prison since 20 July 1994 but had not had any health problems until late 1998. His health had therefore deteriorated from 1998 onwards. A medical certificate drawn up on 12 May 2000 in connection with an application for a pardon had mentioned the need for an expert opinion. The ensuing report, drawn up on 28 June 2000, had emphasised the problems arising on account of the applicant's refusal to consent to the cancer treatment he had been prescribed; in that context, the expert had concluded that the applicant should be looked after in a specialist unit. The judicial authorities had taken immediate action on the report in deciding to transfer him to Muret Prison so that he would be closer to Toulouse University Hospital. The fact that he had been transferred there on 19 July 2000, less than a month after the expert had submitted his findings in the above-mentioned report, demonstrated the constant concern on the part of the relevant authorities to ensure that the applicant's conditions of detention were compatible with his state of health. The Government noted that the applicant had been given a cell of his own at Muret Prison (although in their additional observations they stated that that had also been the case at Lannemezan Prison), that he had worked there and that he had also maintained contact with the outside world by means of the telephone, mail, the visiting room and periods of prison leave. As to the conduct of the chemotherapy sessions, the Government observed that the applicant had alluded to an incident on 30 May 2000 when he had attempted to alter the speed of his own drip. In that connection, they maintained that escort officers played no part in determining the time required for treatment or providing medical supervision, matters for which the medical and paramedical staff alone were responsible. As regards the use of handcuffs, the Government acknowledged that restraints had indeed been applied to the applicant during the journey between the prison and the hospital but had been removed as soon as he had arrived in the treatment room, where none of the prison staff had been present. They argued that the use of restraints had been justified by the applicant's previous convictions for serious offences (according to the Government, he had been sentenced to twenty years' imprisonment for murder on 5 May 1976, and to eight years' imprisonment for armed robbery on 15 June 1987) and by the fact that his family home in Toulouse was close by, so that it could not be ruled out that he might be assisted by local accomplices, particularly in view of the regularity and frequency of his journeys to the same hospital along an easily identifiable route. At the time of the incident of 30 May 2000 the considerable portion of his sentence remaining to be served, the successive refusals of his applications for a pardon on medical grounds and his criminal record could legitimately have aroused fears that he would attempt to abscond with the help of local accomplices. The Government further stated that, according to information supplied by the prison authorities, the use of restraints on the applicant's lower limbs had been stopped, albeit on an unspecified date, on account of the pain he was suffering and the fact that he had to use a walking stick to move about. At a similar time the handcuffs had been replaced by a lighter chain, as the applicant had also complained of pain in his arms as a result of the intravenous drip. In the Government's submission, all those factors showed that the relevant authorities had systematically taken the applicant's health into account in determining and altering his prison regime. That was borne out by the fact that as soon as the applicant had satisfied the statutory requirements for obtaining parole, his application had been examined and allowed within a very short space of time. Consequently, relying on the Court's decision in Papon v. France (no. 1) ((dec.), no. 64666/01, ECHR 2001-VI), the Government submitted that the applicant's conditions of detention had never attained a sufficient level of severity to fall within the scope of Article 3 of the Convention. B. The Court's assessment 36. The Court observes in the first place that the applicant was granted parole on 22 March 2001. It will therefore examine his complaint alleging a violation of Article 3 of the Convention in relation to the period extending from that date back to 8 January 1999, the date of the medical report in which the applicant's illness was first diagnosed – that is to say, a period of more than two years. 37. The Court reiterates that, according to its case-law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum level is, in the nature of things, relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see Kudła v. Poland [GC], no. 30210/96, § 91, ECHR 2000-XI, and Peers v. Greece, no. 28524/95, § 67, ECHR 2001-III). Although the purpose of such treatment is a factor to be taken into account, in particular whether it was intended to humiliate or debase the victim, the absence of any such purpose does not inevitably lead to a finding that there has been no violation of Article 3 (see Peers, cited above, § 74). 38. The Convention does not contain any provision relating specifically to the situation of persons deprived of their liberty, let alone where they are ill, but it cannot be ruled out that the detention of a person who is ill may raise issues under Article 3 of the Convention (see Chartier v. Italy, no. 9044/80, Commission's report of 8 December 1982, Decisions and Reports (DR) 33, p. 41; De Varga-Hirsch v. France, no. 9559/81, Commission decision of 9 May 1983, DR 33, p. 158; and B. v. Germany, no. 13047/87, Commission decision of 10 March 1988, DR 55, p. 271). In the case of a prisoner suffering from disorders associated with hereditary obesity, the Commission expressed the opinion that there had been no violation of Article 3 of the Convention because the applicant had been provided with care appropriate to his state of health. It considered, however, that detention per se inevitably affected prisoners suffering from serious disorders. It took care to point out that “in particularly serious cases situations may arise where the proper administration of criminal justice requires remedies to be taken in the form of humanitarian measures” and stated in conclusion that it would “appreciate any measures the Italian authorities could take vis-à-vis the applicant in order to alleviate the effects of his detention or to terminate it as soon as circumstances require” (see Chartier, Commission's report cited above, pp. 57-58). The Court recently observed that the detention of an elderly sick person over a lengthy period could fall within the scope of Article 3, although in the decision in question it held that the applicant's complaint under that Article was manifestly ill-founded (see Papon (no. 1), cited above). Health, age and severe physical disability are now among the factors to be taken into account under Article 3 of the Convention in France and the other member States of the Council of Europe in assessing a person's suitability for detention (see paragraphs 26, 27, 29 and 30 above). 39. Thus, in assessing a prisoner's state of health and the effects of detention on its development, the Court has held that certain types of treatment may infringe Article 3 on account of the fact that the person being subjected to them is suffering from mental disorders (see Keenan v. the United Kingdom, no. 27229/95, §§ 111-15, ECHR 2001-III). In Price v. the United Kingdom the Court held that detaining the applicant, who was four-limb deficient, in conditions inappropriate to her state of health amounted to degrading treatment (no. 33394/96, § 30, ECHR 2001-VII). 40. Although Article 3 of the Convention cannot be construed as laying down a general obligation to release detainees on health grounds, it nonetheless imposes an obligation on the State to protect the physical well-being of persons deprived of their liberty, for example by providing them with the requisite medical assistance (see Hurtado v. Switzerland, judgment of 28 January 1994, Series A no. 280-A, opinion of the Commission, pp. 15-16, § 79). The Court has also emphasised the right of all prisoners to conditions of detention which are compatible with human dignity, so as to ensure that the manner and method of execution of the measures imposed do not subject them to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention; in addition, besides the health of prisoners, their well-being also has to be adequately secured, given the practical demands of imprisonment (see Kudła, cited above, § 94). 41. In the instant case the Court observes that the judge responsible for the execution of sentences considered that the applicant's state of health was in itself incompatible with detention from 22 March 2001 onwards. The fact that he required medical treatment during regular visits to hospital justified releasing him on parole, subject to his staying with his relatives (see paragraph 24 above). 42. Accordingly, the instant case raises the question whether the applicant's state of health, which was giving serious cause for concern, was compatible with his continued imprisonment in that condition. In a climate of increasing awareness of the prison situation, France is faced with the problem of sick prisoners and their continued detention in circumstances which no longer appear justified in terms of protecting society (see the National Assembly report referred to in paragraph 25 above). 43. The Court takes note of developments in France 's legislation on the matter, which has increased the powers of the judge responsible for the execution of sentences in respect of seriously ill prisoners. As it has already pointed out, French law affords the national authorities various means of intervening where detainees are suffering from serious medical problems. A prisoner's health may be taken into account in a decision to grant parole under Article 729 of the Code of Criminal Procedure as amended by the Law of 15 June 2000, in particular where the prisoner has “to undergo treatment”. Furthermore, under the Law of 4 March 2002 on patients' rights, prisoners' sentences may be suspended if they are suffering from a life-threatening illness or if their condition is incompatible in the long term with their continued detention (see paragraph 26 above). The Court accordingly notes that the health of a detainee is now among the factors to be taken into account in determining how a custodial sentence is to be served, particularly as regards its length. In that way, practical expression has been given to the Court's statement that “the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies” (see Selmouni v. France [GC], no. 25803/94, § 101, ECHR 1999-V). 44. The Court notes that the procedural arrangements introduced by the laws of 15 June 2000 and 4 March 2002 have provided for new remedies before the judge responsible for the execution of sentences, enabling prisoners whose health has deteriorated significantly to apply to be released at short notice; those remedies are available in addition to the possibility of applying for a pardon on medical grounds, which the French President alone is empowered to grant. It considers that these judicial procedures may provide sufficient guarantees to ensure the protection of prisoners' health and well-being, which States must reconcile with the legitimate requirements of a custodial sentence. However, it must be acknowledged that those procedures were not available to the applicant during the period of detention considered by the Court and that the State's only response to his situation was to refuse his applications for a pardon on medical grounds without stating any reasons. As the Government noted, the applicant could not have been released on parole until he satisfied the eligibility requirements – that is to say, not until 2001. Moreover, the possibility of applying to have his sentence suspended did not exist at the time of his detention. 45. That being so, the Court will examine whether the applicant's continued detention gave rise to a situation which attained a sufficient level of severity to fall within the scope of Article 3 of the Convention. The Court observes that the applicant's health was found to be giving more and more cause for concern and to be increasingly incompatible with detention. The report of 28 June 2000 referred to the difficulty of providing cancer treatment in prison and recommended transferring him to a specialist unit. It also mentioned the applicant's psychological condition, which had been aggravated by the stress of being ill and had affected his life expectancy and caused his health to decline. The letter of 20 November 2000 from the UCSA doctor to the applicant confirmed that his health was deteriorating and referred only to the possibility of a remission in the disease. All those factors show that the applicant's illness was progressing and that the prison was scarcely equipped to deal with it, yet no special measures were taken by the prison authorities. Such measures could have included admitting the applicant to hospital or transferring him to any other institution where he could be monitored and kept under supervision, particularly at night. 46. The conditions in which the applicant was taken to hospital also raise a number of issues. There is no doubt that the applicant was kept in chains while under escort, although the chains started to be applied less tightly once the doctors advised against using restraints. However, it has not been established that he was chained up while receiving treatment or that members of the prison escort were present on those occasions. The Court notes, however, that the reply from the Regional Director of the Prison Service about the use of handcuffs implicitly suggests that the applicant's illness did not exempt him from being handcuffed and that the manner in which the handcuffs were used is standard practice in the context of detention. 47. The Court reiterates that handcuffing does not normally give rise to an issue under Article 3 of the Convention where the measure has been imposed in connection with a lawful detention and does not entail use of force, or public exposure, exceeding what is reasonably considered necessary. In this regard, it is important to consider, for instance, whether there is a danger that the person concerned might abscond or cause injury or damage (see Raninen v. Finland, judgment of 16 December 1997, Reports of Judgments and Decisions 1997-VIII, p. 2822, § 56). In the instant case, having regard to the applicant's health, to the fact that he was being taken to hospital, to the discomfort of undergoing a chemotherapy session and to his physical weakness, the Court considers that the use of handcuffs was disproportionate to the needs of security. As regards the danger presented by the applicant, and notwithstanding his criminal record, the Court notes the absence of any previous conduct or other evidence giving serious grounds to fear that there was a significant danger of his absconding or resorting to violence. Lastly, the Court notes the recommendations of the European Committee for the Prevention of Torture concerning the conditions in which prisoners are transferred to hospital to undergo medical examinations – conditions which, in the Committee's opinion, continue to raise problems in terms of medical ethics and respect for human dignity (see paragraph 28 above). The applicant's descriptions of the conditions in which he was escorted to and from hospital do not seem very far removed from the situations causing the Committee concern in this area. 48. In the final analysis, the Court considers that the national authorities did not take sufficient care of the applicant's health to ensure that he did not suffer treatment contrary to Article 3 of the Convention. His continued detention, especially from June 2000 onwards, undermined his dignity and entailed particularly acute hardship that caused suffering beyond that inevitably associated with a prison sentence and treatment for cancer. In conclusion, the Court considers that the applicant was subjected to inhuman and degrading treatment on account of his continued detention in the conditions examined above. There has therefore been a violation of Article 3 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 49. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 50. The applicant claimed the following sums: 304,898 euros (EUR) for the physical suffering endured while in detention, the same amount for mental suffering and EUR 400,000 for damage on account of his reduced life expectancy. 51. The Government pointed out that awards of just satisfaction were designed to compensate solely for damage sustained as a result of the Convention violation found by the Court. Accordingly, it was impossible to speculate as to what the applicant's life expectancy would have been if he had been detained in different conditions. Furthermore, he had been released on 22 March 2001. No award should be made in respect of his reduced life expectancy as there was no direct link between the damage thus sustained and any violation of Article 3 that the Court might find. If the Court were to find that there had been a violation of Article 3, the Government considered the applicant's claims manifestly excessive and proposed an award of EUR 9,000 in respect of all heads of damage taken together. 52. The Court considers that the applicant may have experienced considerable anxiety as a result of his detention and that he sustained non-pecuniary damage which cannot be compensated solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant EUR 15,000 under this head. B. Costs and expenses 53. The applicant did not claim anything under this head. C. Default interest 54. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The European Court of Human Rights found that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights in respect of the period until the applicant’s release on licence, holding in particular hat although his condition had become increasingly incompatible with his continued detention as his illness progressed, the prison authorities had failed to take any special measures. In view of his condition, the fact that he had been admitted to hospital, the nature of the treatment, the Court considered that handcuffing the applicant had been disproportionate to the security risk posed. This treatment further fell foul of the recommendations of the European Committee for the Prevention of Torture (CPT) regarding the conditions in which prisoners are transferred and medically examined. |
541 | Shooting spree at Roma family’s home | II. RELEVANT DOMESTIC LAW A. Criminal Code (Law no. 300/2005 Coll., as in force at the material time) 48. Article 144 § 1 provided that any person who premeditatedly and intentionally killed another person would be liable to a term of imprisonment of between twenty and twenty-five years. Under Article 144 § 2 (c), if a person committed such a crime acting in a more serious manner ( závažnejším spôsobom konania ), or under Article 144 § 2 (e) with a specific motive ( z osobitného motívu ), he or she would be subject to a term of imprisonment of twenty-five years or life imprisonment. 49. Under Article 138 (j), “a more serious manner” referred to an offence that was committed against several people. 50. A “specific motive” for the commission of a crime was defined in Article 140. Under Article 140 (f) a specific motive was defined as the commission of a crime on the grounds of national, ethnic and racial hatred, or hatred based on skin colour. 51. Under Article 194, any person who, without lawful authority, entered the dwelling of another or remained there would be liable to a term of imprisonment of up to two years. The offender would be liable to a term of imprisonment of between one and five years if he committed the offence, inter alia, acting in a more serious manner (Article 194 § 2 (a)), or by reason of a specific motive (Article 194 § 2 (d)). 52. Under Article 294, any person who, for himself or another person, manufactured, imported, exported, transited, transported, procured or possessed ammunition without a licence, or who mediated such activity, would be liable to a term of imprisonment of one to five years. If the action in question concerned a firearm, that person would be liable to a term of imprisonment of between three and eight years. B. Code of Criminal Procedure (Law no. 301/2005 Coll., as in force at the material time) 53. Article 46 provided, inter alia, that a party aggrieved by a criminal offence could attach a third-party claim for damages to the criminal proceedings and request that the court convicting the person charged with a criminal offence order the latter to pay compensation for the damage caused to the aggrieved party by the offence. The aggrieved party furthermore had the right to adduce evidence and to comment on it, to inspect the case file, to take part in the hearing, and to make submissions. Furthermore, Article 271 allowed the aggrieved party to ask questions after the adducing of evidence; Article 272 § 1 stipulated that an aggrieved party (or his or her representative) was authorised to ask questions within the scope of his or her claim for damages after the prosecutor’s questioning was concluded. 54. If a court convicted a person indicted for an offence ( obžalovaný ) by which damage had been caused, it generally ordered the defendant to pay the aggrieved party damages (Article 287), unless the evidence taken was not sufficient for making such a ruling, in which case the court referred the aggrieved party to lodge the claim in question with the civil courts (Article 288). 55. Under Article 172 § 2 of the Code of Criminal Procedure a simplified version of a judgment (that is to say without any reasoning) could be delivered, provided that both the prosecutor and the accused waived their right to appeal after the pronouncement of such a judgment, or that they had done so within three days of the delivery of the judgment. 56. Under Article 230 a prosecutor supervises criminal proceedings to ensure their lawfulness. The public prosecutor is especially entitled to give to an investigator binding instructions or quash his unlawful or unreasonable decisions and substitute them by own decisions. 57. Article 237 provides, inter alia, that the criminal court can adjudicate the case only on the basis of a bill of indictment, submitted and represented by a public prosecutor. 58. Article 307 stipulated the persons entitled to appeal against the judgment. In particular, it provided that the aggrieved party had the right to appeal only in so far as the appeal concerned rulings on compensation for damage. III. RELEVANT INTERNATIONAL MATERIALS 59. The relevant standards concerning recognising hate crimes and hate crime indicators were summarised in Balázs v. Hungary, no. 15529/12, § 21, 20 October 2015. 60. In its General Policy Recommendation No. 13, adopted on 24 June 2011, the European Commission against Racism and Intolerance (ECRI) reiterated that “anti-Gypsyism” was a specific form of racism ‑ a form of dehumanisation and institutional racism nurtured by historical discrimination – which was expressed, inter alia, by violence, hate speech, exploitation, stigmatisation and the most blatant kind of discrimination; stressed that anti-Gypsyism was an especially persistent, violent, recurrent and commonplace form of racism; and emphasised the need to combat this phenomenon at every level and by every means. 61. On 19 June 2014, the ECRI issued a Report on Slovakia (CRI(2014)37)). It mentioned, inter alia, the case of the Hurbanovo shooting; paragraph 68 reads as follows: “NGOs reported nine violent criminal offences against Roma between 2009 and 2012. In other cases, Roma settlements were the target of vandalism that endangered the lives of the inhabitants. The worst incident so far, which received extensive biased media coverage justifying the killing, took place in June 2012 when three Roma were killed and two wounded by an off-duty municipal police officer in Hurbanovo.” 62. The ECRI in its Report further reiterated its recommendation that: “... the Slovak authorities ensure effective investigations into allegations of racial discrimination or misconduct by the police and ensure as necessary that the perpetrators of these types of acts are adequately punished .” 63. The UN Committee on the Elimination of Racial Discrimination adopted concluding observations in respect of Slovakia in 2013 (CERD/C/SVK/CO/9-10). In paragraph 6 of the concluding observations it dealt with the concern and recommendation regarding racially motivated violence and crimes, and stated as follows: “The Committee recommends that the State party take effective measures to prosecute hate crimes in an effective manner so as to discourage racist and extremist organizations. ...” 64. Similarly, the UN Committee on the Elimination of Racial Discrimination, in its concluding observations in respect of Slovakia of 2018 (CERD/C/SVK/CO/11-12) expressed serious concerns about reports of verbal and physical attacks against ethnic minorities, including Roma, and recommended, inter alia, that: “... all racially motivated crimes, including verbal and physical attacks, are investigated, that perpetrators are prosecuted and punished, and that motives based on race or on skin colour, descent or national or ethnic origin are considered as an aggravating circumstance when imposing punishment for a crime.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 14, READ IN CONJUNCTION WITH ARTICLE 2 OF THE CONVENTION 65. The applicants complained that the Slovak authorities had failed in their obligation to conduct an effective investigation into the racial overtones of the crime committed against them. They furthermore challenged the lack of reasoning in the sentencing judgment, which had rendered it impossible to demonstrate any accountability for the racist motive for the crime. They relied on Articles 2 and 14 of the Convention, which read as follows: Article 2 “1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.” Article 14 “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” A. Admissibility 66. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It furthermore notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties’ submissions (a) The applicants 67. The applicants maintained that the attack had resulted from the fact that they were of Roma origin and that the authorities had failed to comply with the Convention standards. They pointed out that the expert reports had indicated a racial motive and that there was evidence that Mr J. had been violent towards Roma and that he had assaulted one of the victims one week prior the massacre. They also submitted that their lawyer emphasised the need to unmask any racial motive at the main hearing of 26 March 2013. 68. Moreover, the applicants emphasised a key failure on the part of the trial court to deliver a reasoned judgment because this had been the only way to unmask racial motivation, given that it had not been mentioned in the bill of indictment. They also argued that there was a climate of anti ‑ Gypsyism in Slovakia generally, and a climate of institutional anti ‑ Gypsyism among police in particular. In their opinion, the failure to conduct an effective investigation and trial capable of exposing and punishing racial motivation had not only impacted the applicants, but had exacerbated a situation in which Roma had reason to believe that they were targets of police violence and murder. Furthermore, the lack of reasoning in the trial court’s judgment, accompanied by the impossibility of lodging an appeal against the conviction, had also pre-empted the possibility of an effective constitutional review by the Constitutional Court. (b) The Government 69. The Government submitted that the authorities had established the relevant facts of the case, including the potentially racist motive of the perpetrator, and had gathered evidence in this regard. The authorities, however, had arrived at the conclusion that the committed crime had not been racially motivated. Therefore, as a racial motive had not been proved, the delivery of a simplified judgment could not have affected the applicants’ rights. 70. Furthermore, the Government admitted that the applicants’ representative had had reservations regarding the evidence heard during the trial; however, in their opinion, he did not make any allegation about a racial motive before the trial court or in the appeal. In fact, this had been raised for the first time only in the applicants’ constitutional complaint. 71. The Government also stated that the applicants had had enough opportunities to participate in the proceedings, assert their rights, propose evidence and question the evidence. In particular, during the proceedings the applicants had had the opportunity to contest the conclusions of the experts, and their representative could have suggested in an earlier stage of the proceedings that an additional expert opinion be ordered. 2. The Court’s assessment (a) General principles 72. The Court reiterates that the obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, requires by implication that there should be some form of effective official investigation when individuals have been killed (see Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 110, ECHR 2005 ‑ VII), even where the presumed perpetrator of the attack is not a State agent (see Georgi Georgiev v. Bulgaria (dec.), no. 34137/03, 11 January 2011 with further references; Fedorchenko and Lozenko v. Ukraine, no. 387/03, § 64, 20 September 2012; and Balázs, cited above, § 51). 73. In order to be “effective” in the context of Article 2 of the Convention, an investigation must firstly be adequate (see Ramsahai and Others v. the Netherlands [GC], no. 52391/99, § 324, ECHR 2007‑II). That is to say it must be capable of leading to the establishment of the facts and, where appropriate, the identification and punishment of those responsible, where those responsible are State agents, but also where they are private individuals (see Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 71, ECHR 2002 ‑ II; Rantsev v. Cyprus and Russia, no. 25965/04, § 233, ECHR 2010 (extracts); and M. and M. v. Croatia, no. 10161/13, § 148, ECHR 2015 (extracts)). The obligation to conduct an effective investigation is an obligation which concerns the means to be employed, and not the results to be achieved (see Nachova and Others, cited above, § 160, and Mižigárová v. Slovakia, no. 74832/01, § 93, 14 December 2010), but the nature and degree of scrutiny satisfying the minimum threshold of effectiveness depends on the circumstances of the particular case, and it is not possible to reduce the variety of situations which might occur to a bare check-list of acts of investigation or other simplified criteria (see Tanrıkulu v. Turkey [GC], no. 23763/94, §§ 101-110, ECHR 1999-IV, and Velikova v. Bulgaria, no. 41488/98, § 80, ECHR 2000‑VI). 74. Furthermore, at all events, there must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice (see McKerr v. the United Kingdom, no. 28883/95, § 115, ECHR 2001 ‑ III with further references), maintain public confidence in the authorities’ adherence to the rule of law, and prevent any appearance of collusion in or tolerance of unlawful acts (see, for example, Dimitrova and Others v. Bulgaria, no. 44862/04, 27 January 2011, § 77). The degree of public scrutiny required may well vary from case to case. In all cases, however, the next-of-kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests (see Mižigárová, cited above, § 95). 75. In relation to alleged racist attacks, the Court reiterates that according to its well-established practice, the State authorities have the additional duty to take all reasonable steps to unmask any racist motive and to establish whether or not ethnic hatred or prejudice may have played a role in the events. Treating racially induced violence and brutality on an equal footing with cases that have no racist overtones would be to turn a blind eye to the specific nature of acts which are particularly destructive of fundamental rights. A failure to make a distinction in the way in which situations that are essentially different are handled may constitute unjustified treatment irreconcilable with Article 14 of the Convention (see, for example, Nachova and Others, cited above, § 160, which concerned the shooting and killing of two Roma men by a military officer; Bekos and Koutropoulos v. Greece, no. 15250/02, § 70, ECHR 2005 ‑ XIII (extracts), which concerned the beating of two Roma men by police officers; Šečić v. Croatia, no. 40116/02, § 66, 31 May 2007, which concerned the beating of a Roma by a skinhead group; Fedorchenko and Lozenko, cited above, § 65, which concerned the death of the applicants’ relatives as the result of an arson attack; and Ciorcan and Others v. Romania, nos. 29414/09 and 44841/09, § 158, 27 January 2015, which concerned the shooting and injuring of a large number of Roma during a police raid). 76. Admittedly, proving racial motivation will often be extremely difficult in practice. The respondent State’s obligation to investigate possible racist overtones to a violent act is an obligation to use best endeavours and not absolute (see, for example, Šečić v. Croatia, no. 40116/02, § 66, 31 May 2007). However the authorities must do what is reasonable, given the circumstances of the case (see Fedorchenko and Lozenko, cited above, § 66), in particular to collect and secure the evidence, explore all practical means of discovering the truth and deliver fully reasoned, impartial and objective decisions, without omitting suspicious facts that may be indicative of racially induced violence (see Bekos and Koutropoulos, cited above, § 69, and Balázs, cited above, § 52). 77. The Court furthermore notes that the authorities’ duty to investigate the existence of a possible link between racist attitudes and an act of violence is an aspect of their procedural obligations arising under Article 2 of the Convention, but may also be seen as implicit in their responsibilities under Article 14 of the Convention, taken in conjunction with Article 2 to secure the enjoyment of the right to life without discrimination. Owing to the interplay of the two provisions, the issues may fall to be examined under one of the two provisions only, with no separate issue arising under the other, or may require examination under both Articles. This is a question to be decided in each case on its facts and depending on the nature of the allegations made (see Nachova and Others, cited above, § 161, and Balázs, cited above, § 54). 78. In the present case, the Court considers that in view of the allegations made by the applicants to the effect that the ineffectiveness of the investigation stems precisely from the fact that the authorities insufficiently investigated the racist aspects of the acts of violence, the Court considers that the complaint should be considered from the angle of Article 14, read in conjunction with Article 2 of the Convention (see Nachova and Others, cited above, § 162, and Balázs, cited above, § 55). (b) Application of those principles to the present case 79. The Court observes that under Article 144 § 2, in conjunction with Article 140 (f) of the Criminal Code, as in force at the material time, the intentional killing of other persons with premeditation for those persons’ connection with a particular group constituted a criminal offence punishable by twenty-five years or life imprisonment (see paragraph 48 above). 80. In view of the above, the Court considers that the Slovak legal system provided, in principle, adequate legal mechanisms to afford an acceptable level of protection to the applicants in the circumstances. It must therefore examine whether the manner in which the criminal-law mechanisms were implemented was adequate (see Škorjanec v. Croatia, no. 25536/14, § 62, 28 March 2017), regard being had to the requirements of the Convention in this respect (see paragraphs 57-58 above). 81. The Court notes that following the incident of 16 June 2012, the police immediately conducted a preliminary investigation, in the course of which the police interviewed Mr J., his relatives and colleagues, and the victims’ relatives. Mr J. confirmed that he had armed himself with a gun and driven to the applicants’ house with the intention of “dealing with” the Roma. He also confirmed that he had been thinking about a radical solution, that he had been looking for a yard containing more Roma people and that he had been acquainted with some members of the applicants’ family (see paragraphs 10-13 above). 82. The victims’ relatives stated that they had not been aware of any disputes between the victims’ family and Mr J. However, one witness described a conflict between Mr J. and Roma boys who had been caught stealing. Mr J. allegedly slapped one member of the victims’ family a week or two before the incident (see paragraph 14-16 above). Other witnesses ‑ namely Mr J.’s relatives and colleagues – denied any previous prejudicial statements or biased behaviour on the part of Mr J. against Roma (see paragraph 15 above). 83. The police furthermore requested an expert examination of Mr J.’s mental state, as well as a possible motive for his actions (see paragraph 18 above). The psychologist concluded that the immediate motive of Mr J.’s behaviour at the critical moment was unclear. Nevertheless, he confirmed that an important motive determining his actions before and during the crime could have been his continual frustration with his own work and that he had been unable to resolve the public order issues in the town – in particular, problems concerning the Roma (see paragraphs 19-21 above). Moreover, during his interview on 23 November 2012 (see paragraph 23 above) the expert expressly referred to the incident with Roma boys who had been caught stealing and Mr J.’s aggressive behaviour towards them. In his opinion, Mr J.’s aggression had been intensifying, as his feelings of helplessness and fear of danger from Roma had been growing. In the expert’s opinion, Mr J. had believed that he could solve what the expert called “the Roma question” (see paragraphs 23 above). However, the expert did not confirm unequivocally a racial motive for Mr J.’s attack (see paragraph 24 above). 84. The Court has already found that any specific information capable of suggesting that there had been any racial motive would suffice to open an investigation into a possible causal link between alleged racist attitudes and a death (see Mižigárová, cited above, § 122). In particular, such an attitude can be present where any evidence of racist verbal abuse comes to light in an investigation (see Škorjanec, cited above, § 65, and Balázs, cited above, § 61), when the attackers belonged to a group which is by its nature governed by extremist and racist ideology (see Abdu v. Bulgaria, no. 26827/08, § 49, 11 March 2014, and Šečić, cited above, § 68), but also in cases of allegedly racially motivated violence when another alleged non ‑ racist motive was not supported by any information (see Fedorchenko and Lozenko, cited above, § 67) or when the complexity of facts was seen against the background of published accounts of the existence of general prejudice and hostility against Roma (see Ciorcan and Others, cited above, § 163, and Fedorchenko and Lozenko, cited above, § 68). 85. Turning to the present case, the Court considers that investigators and the prosecutors involved in the present case had before them plausible information which was sufficient to alert them to the need to carry out an initial verification and, depending on the outcome, an investigation into possible racist overtones in the events that led to the death of three people and the injuring of two more. 86. As regards the Government’s argument that the authorities had established the relevant facts of the case, including a potential non-proven racist motive, the Court observes that the investigating authorities questioned Mr J. and other witnesses about a possible racist background for his actions and requested an expert to assess Mr J’s motive. However, they did not extend their investigation and analysis to any potential racist element of the violent attack of 16 June 2012. The investigating authorities in particular failed to carry out a thorough examination of the fact that Mr J. had acted violently against Roma shortly before the attack, even though the expert witness suggested a link between this incident and the shooting (see paragraph 23 above). The Court would reiterate, in this connection, that where any evidence of racist bias comes to light in an investigation, it must be checked; if such bias is confirmed, a thorough examination of all the facts should be undertaken in order to uncover any possible racist motives (see Balázs, cited above, § 61, and Nachova, cited above, § 164). 87. In addition, the general context of the attack should have been taken into account. As explained in the Court’s case-law, the domestic authorities should be mindful that perpetrators may have mixed motives, being influenced as much or more by situational factors as by their biased attitude (see Škorjanec, cited above, § 65). In the case in issue, the relevant situational factors, stemming especially from the expert opinion of the psychologist, were not taken into account. Nevertheless, even assuming that the authorities considered the evidence to be contradictory, they did not take any procedural steps or examine whether any inference could be drawn from any other circumstantial evidence (contrast Balázs, cited above, § 64 and § 66). 88. In this connection, the Court cannot but note that on 11 December 2012 the special prosecutor indicted Mr J., charging him explicitly with the offence of premeditated first-degree murder under Article 144 § 1 and § 2 (c) of the Criminal Code (partly accomplished and partly attempted). In the bill of indictment, the special prosecutor identified only one aggravating form under Article 144 § 2 of the Criminal Code ‑ specifically, that Mr J.’s attack had been directed against five people. The other possible aggravating form of racial motive – that is to say under Article 144 § 2 (e) of the Criminal Code, with reference to Article 140 (f) of the Criminal Code – was not addressed and discussed at all (see paragraph 25-27 above). 89. The Court further notes that the applicants, together with six other members of the family, joined the criminal proceedings before the court as civil parties (see paragraph 29 above). During the trial, their lawyer contested the objective nature and the accuracy of the experts’ conclusions, particularly in relation to Mr J.’s motive. He attempted to question the experts. One of the experts (the psychiatrist) stated that it was not within their remit to assess the issue of racism, and another question from the lawyer for the clinical psychologist was not allowed by the SCC. A proposal by the applicants’ representative to order a second expert opinion was rejected (see paragraph 30 above). Eventually, the SCC delivered only a simplified judgment, which contained a brief description of the criminal act and stipulated the sentence imposed (see paragraph 31 above). The question of Mr J.’s motives and the legal classification of his actions was not addressed (see paragraph 32 above). 90. In this regard, the Court does not accept the Government’s suggestions that (i) the applicants failed to allege before the trial court that Mr J.’s actions had been racially motivated (contrast Mižigárová, cited above, § 122, and Vasil Sashov Petrov v. Bulgaria, no. 63106/00, § 72, 10 June 2010), and (ii) the allegations that they had made had been of a vague and general nature (see, by contrast, Adam v. Slovakia, no. 68066/12, § 94, 26 July 2016). Indeed, not only did their lawyer raise the issue of racism before the SCC and attempt to interview expert witnesses about Mr J.’s motive, but one family member even expressly argued in her appeal that the SCC had failed to consider that there might have been a racial motive for the attack (see paragraph 35 above). The applicants’ representative was not allowed to pursue the line of questioning concerning a racial motive for Mr J.’s actions since a civil party could raise only issues concerning a claim for damages (see paragraph 53 above). Moreover, an injured party claiming damages could not prevent the court from delivering a simplified judgment under Article 172 § 2 of the CCP; nor could that party lodge an appeal with the appellate court as regards the ruling on Mr J.’s guilt and sentencing (see paragraph 56 above). 91. The Court observes that the Slovak legal system does not allow an injured party to act as a subsidiary (see, for example, Kitanovski v. the former Yugoslav Republic of Macedonia, no. 15191/12, § 89, 22 January 2015) or as a private prosecutor (see, for example, M.C. v. Poland, no. 23692/09, § 41, 3 March 2015) and that the role of the public prosecutor is essential. It is only the public prosecutor who supervises the investigation conducted by the police authority in the pre-trial stage of the criminal proceedings (see paragraph 56 above), outlines in principle, on the basis of the bill of indictment, the extent of the trial court’s adjudication (see paragraph 57 above), and has a right to commence full review before the appellate court (see paragraph 58 above). In the present case, there is no indication that the prosecution gave any instructions to police in the course of the investigation in relation to a possible racist motive of Mr J., even though already his very first statement of 16 June 2012 contained an apparent racial motive for his action (see paragraph 11 above). Further, Mr J. was not charged with a racially motivated crime (see paragraph 9 above) and the public prosecutor did not correct this lacuna on the part of the investigation authorities (see paragraph 56 above). In addition, the public prosecutor failed to discuss in the bill of indictment a possible racial motive (see paragraphs 27 and 88 above) which became even more apparent from the evidence collected in the course of the investigation, and in particular gave no reasons why the previous violent behaviour of Mr J. and his own statement, together with the findings of the clinical psychologist, could not be linked to racial motives for the attack (contrast Stoica v. Romania, no. 42722/02, § 120, 4 March 2008). Moreover, because the prosecutor (with the defendant) had waived his right to appeal, a full appeal was no longer possible before the appellate court. 92. Thus, in this procedural situation, it was not open to the appellate court to amend the impugned SCC judgment solely on the basis of an appeal lodged by the applicants because their appeal was limited to their claims concerning damages. Moreover, the applicants’ complaint that the prosecuting authorities’ failure to assess whether there had been any racial motive for the attack was considered by the Constitutional Court jointly with their grievances concerning their inability to challenge Mr J.’s conviction and sentence and thus dismissed as being outside the court’s competence (see paragraph 41 above). 93. The Court is mindful that it is not its task to verify whether the decision of the public prosecutor to waive the right to appeal and the courts’ decisions were correct in terms of Slovak law; nevertheless, it considers that in cases raising issues under Article 2 and 3 of the Convention, this procedural arrangement calls for greater vigilance on the side of the authorities dealing with prosecution to secure the effective implementation of the domestic criminal laws. 94. In this connection the Court emphasises that racial violence is a particular affront to human dignity and, in view of its perilous consequences, requires from the authorities special vigilance and a vigorous reaction. It is for this reason that the authorities must use all available means to combat racism and racist violence, thereby reinforcing democracy’s vision of a society in which diversity is not perceived as a threat but as a source of its enrichment (see Nachova and Others, cited above, § 145). 95. The Court is aware of the seriousness of the applicants’ allegations, as well as the sensitive nature of the situation related to Roma in Slovakia at the relevant time (see paragraphs 61-64 above). It is also aware that its role is not to rule on the application of domestic law or to adjudicate on the individual guilt of persons charged with offences, but to review whether and to what extent the competent authorities, in reaching their conclusion, may be deemed to have submitted the case to the careful scrutiny required by the procedural obligations under the Convention (see Škorjanec, cited above, § 69). Likewise, aware of its subsidiary role, the Court is conscious that it is prevented from substituting its own assessment of the facts for that of the national authorities (see Balázs, cited above, § 75). 96. Nevertheless, it remains the case that the prosecuting authorities failed to examine a possible racist motive in the face of powerful racist indicators and in particular failed to give any reasons whatsoever whether the attack of 16 June 2012 had or had not been motivated by racial hatred. In the absence of any reaction by the courts to the limited scope of the investigation and prosecution, the adequacy of the action taken by the authorities dealing with the investigation and prosecution in this case was impaired to an extent that is irreconcilable with the State’s obligation in this field to conduct vigorous investigations, having regard to the need to continuously reassert society’s condemnation of racism in order to maintain the confidence of minorities in the ability of the authorities to protect them from the threat of racist violence (see Koky and Others v. Slovakia, no. 13624/03, § 239, 12 June 2012; Amadayev v. Russia, no. 18114/06, § 81, 3 July 2014; and Balázs, cited above, § 52). 97. The combined effect of the above considerations is such as to amount to a violation of Article 14, read in conjunction with Article 2 of the Convention. II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 98. Lastly, the applicants complained under Article 2, in conjunction with Article 13 of the Convention, about their inability to cross-examine or otherwise challenge the experts’ conclusions as to Mr J.’s mental state, which had prevented them from actively participating in the proceedings. 99. The Court observes firstly that of all that the essence of these complaints overlaps to a significant extent with that of the complaints presented and examined above under Article 14, in conjunction with Article 2 of the Convention. Having regard to the finding of a violation of Article 14, in conjunction with Article 2 of the Convention, the Court considers that, while the complaint under Article 13, taken in conjunction with Article 2 of the Convention, is admissible, there is no need for a separate examination of this complaint on its merits (see, for example, Koky and Others, cited above, §§ 242-244; Dimitrova and Others, cited above, § 59; and Mižigarová, cited above, §§ 111 and 123). III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 100. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 101. The applicants claimed jointly 50,000 euros (EUR) in respect of non-pecuniary damage. 102. The Government considered this claim to be excessive. 103. Having regard to all the circumstances of the present case, the Court accepts that the applicants have suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation. Making its assessment on an equitable basis, and taking into account the amount of their claim, the Court awards each applicant EUR 25,000 in respect of non-pecuniary damage, plus any tax that may be chargeable to them. B. Costs and expenses 104. The applicants did not make a claim for costs. Consequently, no award is made under this head. C. Default interest 105. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 14 (prohibition of discrimination) read in conjunction with Article 2 (right to life) of the Convention, finding that there had been plausible information in the case to alert the authorities to the need to carry out an investigation into a possible racist motive for the assault. It observed in particular that racist violence was a particular affront to human dignity, and required special vigilance and a vigorous reaction from the authorities. Nevertheless, the authorities had failed to thoroughly examine powerful indicators of racism in the case such as the police officer’s frustration at his inability to resolve public order issues concerning Roma, as suggested in his psychological assessment. In addition, the police officer had not been charged with a racially motivated crime and the prosecutor had not at all addressed or discussed the possible aggravating factor of a racist motive in the bill of indictment. Moreover, the courts had failed to remedy in any way the limited scope of the investigation and prosecution and the simplified judgment in the case had contained no legal reasoning to address that shortcoming. Indeed, as the applicants had been civil parties to the proceedings, they had only been allowed to raise issues concerning their claims for damages. |
699 | Hate speech and right of others to respect for private life | II. RELEVANT DOMESTIC LAW A. Additional section 5 of Law no. 4643 43. Additional section 5 of Law no. 4643 of 12 April 2001 provides : “ The Consultative Council on Human Rights, attached to a State Minister appointed by the Prime Minister, is set up in order to ensure dialogue between the State authorities and the relevant civil society organisations and to act as an advisory body on national and international issues relating to human rights. The Consultative Council is composed of representatives of the ministries, public institutions and professional associations concerned by human rights, representatives of civil society organisations working in the human rights field and persons having worked and published in this sphere. The chairman of the Consultative Council shall be elected from among its members. The secretarial services of the Consultative Council shall be provided by the human rights directorate. The Consultative Council shall be financed from the budget of the Private Office of the Prime Minister. ” B. Judgment delivered by the Constitutional Court on 18 April 2018 44. The Constitutional Court delivered a judgment on an individual appeal lodged by the applicant Baskın Oran (appeal no. 2014/4645) concerning the criminal proceedings brought following that applicant ’ s complaint about the death threats which he had received after the publication of the report on minority and cultural rights. After those criminal proceedings, which had lasted some five years and nine months, the criminal courts had sentenced the instigator of the threats, opting for the minimum penalty allowed for the offence in question, to one year and eight months ’ imprisonment, before staying the delivery of that judgment. Since the criminal proceedings in question had closed on 5 March 2014, that is to say after the entry into force of the law on individual appeal before the Constitutional Court on 23 September 2012 ( for the relevant provisions of Law no. 6216 introducing individual appeal before the Constitutional Court, see Hasan Uzun v. Turkey ( dec. ), no. 10755/13, § 25, 30 April 2013), the applicant had had the option of lodging an individual appeal with that court in order to put forward his complaints concerning the said criminal proceedings. In his individual appeal the applicant alleged a violation of his rights to life and freedom of expression, arguing that the criminal proceedings in question had not been effective owing to their excessive length and the failure to actually penalise the instigator of the threats. 45. By judgment of 18 April 2018, the Constitutional Court found a violation of the applicant ’ s rights to life and to freedom of expression on the grounds that the judicial authorities ’ reaction to the death threats issued against the applicant had had no deterrent force. As regards the applicant ’ s freedom of expression, the Constitutional Court pointed out that the positive obligations in the sphere of freedom of expression required States, in particular, to establish an effective mechanism for the protection of writers and journalists in order to create an environment conducive to the involvement in public debate of all those concerned, so that they could voice their opinions and ideas without fear. The Constitutional Court further noted that the applicant had been working on minority rights for much of his career and that he was continuing to work on similar matters. It noted that as regards the judicial authorities ’ ineffective investigations into the death threats issued against the applicant on account of his work on minority rights, he had not benefited from an environment conducive to the safe pursuit of that work. Considering that the ineffective judicial investigations and proceedings had had a chilling effect on the applicant ’ s exercise of his freedom of expression, the Constitutional Court found that in his case the authorities had failed in their positive obligations in relation to freedom of expression. 46. In the section of its judgment on the relevant international law, the Constitutional Court referred, inter alia, to the judgments in the European Court cases of Özgür Gündem v. Turkey (no. 23144/93, ECHR 2000 ‑ III) and Dink v. Turkey (nos. 2668/07 and 4 others, 14 September 2010) in order to clarify the principles relating to the State ’ s positive obligations in terms of freedom of expression. THE LAW I. JOINDER OF THE APPLICATIONS 47. Given the similarity of the three applications in factual and legal terms, the Court decided to join them in accordance with Rule 42 § 1 of the Rules of Court. II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 48. Relying on Article 8 of the Convention, the applicants complained that they had been unable to obtain compensation for the non-pecuniary damage sustained on account of the press articles which they claimed had comprised insults, threats and hate speech directed against them, infringed their dignity and been part of a “ lynching campaign” geared to stirring up public feeling against them. 49. Further relying on Article 2 of the Convention, the applicants alleged, in the framework of application no. 1759/08, that the authorities had failed to take the requisite action to protect them from the lynching campaign against them which had endangered their lives. They explained that it was customary practice in Turkey to intimidate, to frighten, to endanger, indeed to eliminate, persons who had voiced opinions different from that of the majority in society, singling them our as targets, and that various academics and journalists murdered in recent years, such as Fırat Dink, provided concrete examples of that practice. They therefore accused the national authorities of having left them without protection vis-à-vis the hate speech and calls to violence against them set out in the press articles at issue, and of thus having helped encourage the death threats which they had received. 50. The Court notes that, as regards the applicants ’ allegation concerning the authorities ’ failure to protect them against the death threats and violent reactions, the applicants have not provided evidence of any possible concrete acts of violence perpetrated against them in the wake of the impugned articles. It reiterates, in this regard, that treatment which does not reach a level of severity sufficient to bring it within the ambit of Articles 2 and 3 may nonetheless breach the private-life aspect of Article 8, if the effects on the applicant ’ s physical and moral integrity are sufficiently adverse ( see Király and Dömötör v. Hungary, no. 10851/13, § 42, 17 January 2017). It also notes that the only remedy which the applicants seem to have used in the present case was the civil action for damages which they lodged in respect of the impugned articles. 51. The Court considers that with their complaints under Articles 2 and 8 of the Convention, the applicants are complaining primarily of the domestic authorities ’ failure to protect their physical and moral integrity against the infringement constituted by those articles. It reiterates that, being the master of the characterisation to be given in law to the facts of a case, the Court is not bound by the characterisation given by the parties. In the present case, having regard to the wording of the applicants ’ complaints and the nature of the proceeding which they had brought against the outcome of the latter, the Court considers that the facts in issue should be assessed solely under Article 8 of the Convention, the relevant part of which provides: “ 1. Everyone has the right to respect for his private and family life, his home and his correspondence. ” A. Admissibility 52. The Government raised an inadmissibility objection of failure to exhaust domestic remedies. In that regard, they submitted that the applicants had not used their right to publish a reply correcting the articles, which procedure the Government claimed should, in principle, be considered as an effective remedy in cases of allegations of unlawful interference with the right to protection of reputation. The Government referred, in that connection, to a relevant Constitutional Court decision. 53. The applicants replied that the right to publish a reply did not constitute an effective remedy for them inasmuch as the impugned articles had comprised insults, offensive remarks and threats against them, and not mere erroneous information to be corrected. 54. The Court reiterates that an applicant must have made normal use of domestic remedies which are likely to be effective and sufficient and that, when a remedy has been pursued, use of another remedy which has essentially the same objective is not required ( see Kozacıoğlu v. Turkey [GC], no. 2334/03, § 40, 19 February 2009). It also reiterates that according to domestic law as interpreted and implemented by the Constitutional Court, the effective and appropriate remedy in domestic law for complaints of infringements of the right to protection of reputation is a civil action for damages before the civil courts ( see Yakup Saygılı v. Turkey ( dec. ), no. 42914/16, § 39, 11 July 2017). The Court further observes that the right-of-reply procedure laid down in domestic law for cases of publication of information contrary to the truth or infringing the honour and dignity of persons is an exceptional emergency procedure ( see Eker v. Turkey, no. 24016/05, §§ 15 and 29, 24 October 2017). 55. In the instant case, the Court notes that the applicants lodged actions for damages with the civil courts alleging interferences with their private lives on account of the insulting and threatening content of the impugned articles. It further notes that the question which the applicants brought before the domestic courts was not whether factual errors in the impugned articles could be quickly corrected, but rather whether the publication of the articles overstepped the bounds of the freedom of the press and infringed the applicants ’ private lives. Finally, it observes that the action for damages brought by the applicants enabled them to seek a finding of the breaches committed by the aforementioned articles of their right to respect for private life and to obtain appropriate compensation. 56. The Court considers therefore that in the circumstances of the present case, the remedy which would have provided them with optimum redress was indeed the civil action for damages. It follows that the Government ’ s objection must be rejected. 57. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. Parties ’ submissions (a) The applicants 58. The applicants submitted that their report, which had focused on such issues as minority status, citizenship, identity, equality and the prevention of discrimination, had not been such as to revive the trauma of Turkey ’ s geographical break-up. 59. They considered that the State authorities had failed to take all the requisite precautions to protect them against the insulting and threatening writings of ultranationalist authors, who, they claimed, had been encouraged by the criticism levelled at them by a number of political leaders and officials. They added that the impugned articles, which they submitted had contained serious insults and threats rather than mere critical opinions, could not be deemed to have remained within the bounds of freedom of expression. (b) The Government 60. The Government submitted that, having regard to the duties discharged by the applicants in the Consultative Council on Human Rights – a public body – and in view of that body ’ s mission, which was to guide and influence governmental policies in the human rights field, the applicants had held an atypical status akin to that of politicians, and that they could not therefore be considered as ordinary civil servants. Consequently, having regard to the applicants ’ duties within an official body attached to the Prime Minister ’ s office, the Government considered that the applicants should have been more open to criticism. Furthermore, they argued that the criticism prompted by the report prepared by the applicants in the framework of their activities in the Consultative Council had been levelled not at the applicants but at their positions within the Consultative Council – a governmental body operating under the supervision of the Prime Minister ’ s office. 61. The Government further argued that the “revolutionary” content of the report on such controversial topics as citizenship, identity, mother tongue and equality, which had been perceived as the expression of the applicants ’ ideological stance, combined with alleged irregularities in the adoption of the text, had drawn public attention. They therefore considered that the impugned articles had contributed to a public -interest debate. 62. Moreover, the Government submitted that the criticisms and comments set out in the impugned articles had amounted to value judgments and that they had not been devoid of any factual basis. They explained that the proposals set out in the report concerning minority status, the definition of citizenship, the concepts of supra - and infra- identity and the issue of the official State language had provided the factual basis for the impugned articles. Furthermore, as regards the factual basis of the criticism levelled at the applicants, the Government referred to statements by certain political leaders to the effect that they had not requested such a report and that irregularities had been committed during the adoption of the text, adding that the applicants ’ ideological stance was a matter of public knowledge. The authors of the impugned articles had resorted to some degree of exaggeration, which was permissible for journalists under the Court ’ s case-law. 63. The Government further considered that the unfavourable reactions to the applicants had not been caused by the impugned articles but had derived inevitably from the trauma caused by the “dismantling of Turkey” in the recent past. They argued that the authorities had provided the applicants with adequate protection. 64. Finally, the Government considered that the domestic courts had carried out a balancing exercise compatible with the Court ’ s case-law, taking into account the contribution of the impugned articles to a public - interest debate, the background to the publication of the articles, the applicants ’ positions within the Consultative Council, the radical change of paradigm in public policies adumbrated by the proposals in the report, and the attack which the applicants had allegedly launched in their report against their ideological adversaries by presenting them as paranoid. 2. The Court ’ s assessment ( a) General principles 65. The Court first of all reiterates that the concept of private life is a broad notion which extends to aspects relating to personal identity, such as a person ’ s name, picture or physical and moral integrity (see Von Hannover v. Germany, no. 59320/00, § 50, ECHR 2004 ‑ VI). The case-law of the Court accepts that a person ’ s right to protection of reputation is covered by Article 8 of the Convention as part of the right to respect for private life ( see Axel Springer AG v. Germany [GC], no. 39954/08, § 83, 7 February 2012; Delfi AS v. Estonia [GC], no. 64569/09, § 137, ECHR 2015; Bédat v. Switzerland [GC], no. 56925/08, § 72, ECHR 2016; and Medžlis Islamske Zajednice Brčko and Others v. Bosnia ‑ Herzegovina [GC], no. 17224/11, § 76, ECHR 2017). The Court has already ruled that a person ’ s reputation, even if that person is criticised in the context of a public debate, forms part of his or her personal identity and psychological integrity and therefore also falls within the scope of his or her private life ( see Pfeifer v. Austria, no. 12556/03, § 35, 15 November 2007, and Petrie v. Italy, no. 25322/12, § 39, 18 May 2017). The same considerations apply to a person ’ s honour ( see Sanchez Cardenas v. Norway, no. 12148/03, § 38, 4 October 2007, and A. v. Norway, no. 28070/06, § 64, 9 April 2009). In order for Article 8 to come into play, however, an attack on a person ’ s reputation must attain a certain level of seriousness and in a manner causing prejudice to personal enjoyment of the right to respect for private life ( see Axel Springer AG, cited above, § 83; Delfi AS, cited above, § 137; Bédat, cited above, § 72; and Medžlis Islamske Zajednice Brčko and Others, cited above, § 76). 66. The Court further reiterates that the freedom of the press fulfils a fundamental and essential function in a democratic society. Although the press must not overstep certain bounds, in particular in respect of the reputation and rights of others and the need to prevent the disclosure of confidential information, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest, including those relating to the administration of justice. Thus the national authorities ’ margin of appreciation is circumscribed by the interest of democratic society in enabling the press to exercise its vital role of “public watchdog” ( see, among many other authorities, Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 59, ECHR 1999-III; Thoma v. Luxembourg, no. 38432/97, § 45, ECHR 2001-III; and Amorim Giestas and Jesus Costa Bordalo v. Portugal, no. 37840/10, § 25, 3 April 2014). Nevertheless, journalists must act in good faith in order to provide “ accurate and reliable ” information in accordance with the ethics of journalism ( see Fressoz and Roire v. France [GC], no. 29183/95, § 54, ECHR 1999-I; Radio France and Others v. France, no. 53984/00, § 37, ECHR 2004-II; and July and Sarl Libération v. France, no. 20893/03, § 69, ECHR 2008). That having been said, journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation ( see Fressoz and Roire, cited above, § 45, and Mamère v. France, no. 12697/03, § 25, ECHR 2006-XIII). 67. The Court nevertheless acknowledges that distorting the truth, in bad faith, can sometimes overstep the bounds of acceptable criticism : a correct statement can be qualified by additional remarks, by value judgments, by suppositions or even insinuations, which are liable to create a false image in the public mind ( see, for example, Vides Aizsardzības Klubs v. Latvia, no. 57829/00, § 45, 27 May 2004). Thus the task of imparting information necessarily includes duties and responsibilities, as well as limits which the press must impose on itself spontaneously. That is especially so where a media report attributes very serious actions to named persons, as such “ allegations ” comprise the risk of exposing the latter to public contempt ( see Falakaoğlu and Saygılı v. Turkey, no. 11461/03, § 27, 19 December 2006). 68. The Court also reiterates that in the judgments in the cases of Lingens v. Austria (8 July 1986, § 46, Series A no. 10) and Oberschlick v. Austria (( no. 1 ), 23 May 1991, § 63, Series A no. 204), inter alia, it drew a distinction between facts and value judgments. The existence of facts can be demonstrated, whereas the truth of value judgments is not susceptible of proof, and in that case a requirement to prove the truth of a value judgment is impossible to fulfil and infringes freedom of opinion itself, which is a fundamental part of the right secured by Article 10 of the Convention ( see De Haes and Gijsels v. Belgium, 24 February 1997, § 42, Reports of Judgments and Decisions 1997-I). However, in the case of a value judgment, the proportionality of an interference may depend on whether there exists a sufficient factual basis for the impugned statement : otherwise, that value judgment may itself be excessive (see De Haes and Gijsels, cited above, § 47; Oberschlick v. Austria (no. 2), 1 July 1997, § 33, Reports 1997-IV; Brasilier v. France, no. 71343/01, § 36, 11 April 2006; and Lindon, Otchakovsky -Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 55, ECHR 2007 ‑ IV). In order to distinguish between a factual allegation and a value judgment it is necessary to take account of the circumstances of the case and the general tone of the remarks ( see Brasilier, cited above, § 37), bearing in mind that assertions about matters of public interest may, on that basis, constitute value judgments rather than statements of fact ( see Paturel v. France, no. 54968/00, § 37, 22 December 2005). 69. The Court further observes that when it is called upon to adjudicate on a conflict between two rights which enjoy equal protection under the Convention, the Court must weigh up the competing interests. The outcome of the application should not vary depending on whether it was lodged under Article 8 by the person who was the subject of the impugned press article or under Article 10 by the author of the same article, because in principle the rights under these Articles deserve equal respect ( see Hachette Filipacchi Associés ( ICI PARIS ) v. France, no. 12268/03, § 41, 23 July 2009; Timciuc v. Romania ( dec. ), no. 28999/03, § 144, 12 October 2010; Mosley v. the United Kingdom, no. 48009/08, § 111, 10 May 2011; and Couderc and Hachette Filipacchi Associés v. France [GC], no. 40454/07, § ..., ECHR 2015 ( extracts ) § 91). Accordingly, the margin of appreciation should in theory be the same in both cases ( see Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 106, ECHR 2012; Axel Springer AG, cited above, § 87; and Couderc and Hachette Filipacchi Associés, cited above, § 91). 70. Moreover, the Court reiterates that in cases such as the present one, it is incumbent on it to determine whether the State, in the framework of its positive obligations under Article 8 of the Convention, struck a fair balance between the applicant ’ s right to respect for his private life and the opposing party ’ s right to freedom of expression as secured under Article 10 ( see Petrie v. Italy, cited above, § 40). In several of its judgments the Court has summarised the relevant criteria for balancing the right to respect for private life and the right to freedom of expression as follows : contribution to a public- interest debate, whether the person concerned is well-known, the subject of the report, the prior conduct of the person concerned, the content, form and consequences of the publication, as well as, if appropriate, the circumstances of the case ( see Von Hannover (no. 2) [GC], cited above, §§ 108-113, and Axel Springer AG, cited above, §§ 89-95; see also Couderc and Hachette Filipacchi Associés, cited above, § 93). If the two rights in question have been balanced in a manner consistent with the criteria established by the Court ’ s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts ( see Palomo Sánchez and Others v. Spain [GC], nos. 28955/06, 28957/06, 28959/06 and 28964/06, § 57, ECHR 2011). 71. Finally, noting that in the present case the applicants allegedly suffered infringements of their right to respect for their private live on account of the exercise of their freedom of expression, the Court reiterates that the genuine, effective exercise of this freedom does not depend merely on the State ’ s duty not to interfere, but may require positive measures of protection, even in the sphere of relations between individuals. In certain cases, the State has a positive obligation to protect the right to freedom of expression, even against interference by private persons ( see Palomo Sánchez and Others, cited above, § 59, and Appleby and Others v. the United Kingdom, no. 44306/98, § 39, ECHR 2003 ‑ VI). (b) Application of those principles to the present case 72. The Court notes that the present applications concern press articles whose content the applicants claimed had interfered with their private lives, and had, in particular, damaged their reputations. As regards the right to protection of reputation, it reiterates that that right, as an aspect of private life, falls within the scope of Article 8 of the Convention ( see paragraph 65 above ). The Court considers that in the present case, having regard to the virulent criticisms levelled against the applicants in the impugned articles, the infringement of their reputations reaches the requisite severity threshold for the application of Article 8 of the Convention. 73. The Court then notes that the applicants complained not about any action taken by the State but rather about the latter ’ s failure to protect their private lives against the attacks launched against them in the impugned articles. In the circumstances of the case, therefore, it is incumbent on the Court to seek to establish whether the domestic courts failed to protect the applicants against the alleged infringements. To that end the Court will proceed to assess the impugned circumstances of the case in the light of the relevant criteria emerging from its case-law ( see paragraph 70 above ). 74. The Court observes from the outset that the applicants are university professors specialising in human rights and that at the material time they had been appointed as members of the Consultative Council on Human Rights, a public body responsible for advising the Government on human rights issues ( see paragraph 6 above ). It considers that having regard to the applicants ’ status and duties within the Consultative Council, which were akin to those of experts appointed by the public authorities to examine specific issues, and given the advisory functions of the Consultative Council, they could not be compared to politicians who had to display a greater degree of tolerance ( see Nilsen and Johnsen v. Norway [GC], no. 23118/93, § 52, ECHR 1999 ‑ VIII). Therefore, insofar as the criticism levelled at the applicants had been based on the work which they had conducted in the framework of their duties within the Consultative Council, it cannot be accepted that they should have displayed a greater degree of tolerance of such criticism. 75. The Court further observes that the impugned press articles set out their authors ’ reactions to the report on minority and cultural rights adopted by the Consultative Council. That report, whose content had given rise to heated public debate, extensively covered by the media, had proposed solutions to the problems encountered in the field of minority and cultural rights in Turkey, broadly advocating a transition from the idea of a homogeneous and monocultural nation, which had been the policy pursued by previous governments, towards a conception of a multi-identity, multicultural, democratic, liberal and pluralist society, which was the model adopted by contemporary European democracies ( see paragraphs 8 and 9 above ). The articles in question, which had concerned that report, had thus been dealing with topical public-interest subjects. 76. Moving on to a meticulous assessment of the content of the impugned articles, the Court observes that they comprised harsh criticism expressed sometimes directly and incisively and sometimes ironically, with allusions not only to the report in question but also to its authors. It notes in that regard that the articles seem to present the applicants as the main authors of the report, probably, first of all, on account of their respective roles as Chairman of the Consultative Council and Chairman of the working group having drafted the report ( see paragraph 7 above ) and secondly, because of their opinions on such matters, which had been known to the general public and which, according to the Government, had been reflected in the report ( see paragraph 61 above ). 77. The Court observes that the impugned articles, as a whole, questioned the applicants ’ bona fide and integrity and designated them as intellectuals insensitive to the interest of the Turkish nation, guided and bribed by foreign powers. In that connection, they accused them, by name, of being traitors ( see paragraphs 26, 29 and 31 above ), of being pro- Sèvres ( see paragraphs 26, 28 and 30 above ) – that is to say of advocating the dismantling of Turkey ( see paragraph 8 above ) – of displaying bad faith ( see paragraphs 28 and 29 above ) and of “ supping from ... [a] dog- bowl ” ( see paragraph 31 above ). Moreover, they described the members of the Consultative Council and, in particular, the main instigators of the report – probably including the applicants – though this time without giving names, using words such as “traitor” ( see paragraphs 15, 28, 30 and 36 above ), “ subversive persons [who deserve the] death penalty ” ( see paragraph 27 above ), “lickspittles” ( see paragraphs 29 and 36 above ), “deviousness” ( see paragraph 30 above ), “in the pay of the wild west ” ( see paragraph 36 above ), “little dogs” ( see paragraph 36 above ), “ Trojan horse infiltrating our country” ( see paragraph 36 above ), “losers” ( see paragraph 36 above ), “apostates” ( see paragraph 36 above ), “ spy” ( see paragraph 36 above ), “poodle” ( see paragraph 36 above ) and “rootless and without a pedigree” ( see paragraph 35 above ). 78. The Court considers that those articles, having regard to their content as described above, had all the hallmarks of value judgments. It notes that the harsh criticism levelled by the impugned articles at the applicants echoed the content of the report in question, which contrasted with the legislation in force and existing practice in terms of minority rights protection in Turkey at the material time, on account, in particular, of the ideas and proposals put forward in the text, which involved a sea- change in mentalities in that sphere. 79. The Court therefore notes that the articles in question were indisputably linked to a public- interest debate triggered by the aforementioned report, concerning the place and the rights of minorities in the structure of society. It reiterates in that regard that the role of “ public watchdog ” played by the press authorises journalists, in the context of a public debate, to have recourse to a certain degree of exaggeration or provocation, or indeed bluntness. Whilst an individual taking part in a public debate on a matter of general concern is required not to overstep certain limits as regards – in particular – respect for the reputation and rights of others, he or she is allowed to have recourse to a degree of exaggeration or even provocation, or in other words to make somewhat immoderate statements ( see Kuliś v. Poland, no. 15601/02, § 47, 18 March 2008). Noting further that some of the impugned articles – particularly that written by S.K. and published in the Akşam daily newspaper ( see paragraph 36 above ) – had recourse to satire, the Court reiterates that satire is a form of artistic expression and social commentary and, by its inherent features of exaggeration and distortion of reality, naturally aims to provoke and agitate ( see Vereinigung Bildender Künstler v. Austria, no. 68354/01, § 33, 25 January 2007). The Court considers that satire contributes to public debate. 80. As regards the offensive nature of certain passages of the impugned articles, the Court reiterates that offensive language may fall outside the protection of freedom of expression if it amounts to wanton denigration, for example where the sole intent of the offensive statement is to insult; but the use of vulgar phrases in itself is not decisive in the assessment of an offensive expression as it may well serve merely stylistic purposes ( see Tuşalp v. Turkey, nos. 32131/08 and 41617/08, § 48, 21 February 2012. 81. In the instant case, the Court considers that the impugned articles used acerbic terms to express the authors ’ reaction to and indignation about the Consultative Council ’ s report and to discredit its drafters, the applicants included, in the public mind. The Court takes the view that the provocative, aggressive and somewhat offensive style and content of the articles in question cannot, by and large, be considered as lacking an adequate factual basis and as being wantonly insulting in the context of the heated public debate on a report dealing with issues of vital importance to Turkish society. 82. The Court now comes to the applicants ’ allegation that the impugned articles also comprise passages which they describe as calls to violence and hate speech against them. It considers that, in assessing this allegation, it must draw inspiration from the principles which it formulated in its previous case-law under Article 10 of the Convention concerning oral or written statements alleged to have stirred up violence, hatred and intolerance ( see Király and Dömötör, cited above, § 73). The key factors in the Court ’ s assessment were whether the statements had been made against a tense political or social background ( see Zana v. Turkey, 25 November 1997, §§ 57-60, Case Reports 1997 - VII; Soulas and Others v. France, no. 15948/03, §§ 38-39, 10 July 2008; and Balsytė-Lideikienė v. Lithuania, no. 72596/01, § 78, 4 November 2008); the question whether the statements, being correctly interpreted and assessed in their immediate or broader context, can be seen as a direct or indirect call to violence or as condoning violence, hatred or intolerance ( see, among other authorities, Özgür Gündem v. Turkey (no. 23144/93, ECHR 2000 ‑ III) § 64; Féret v. Belgium, no. 15615/07, §§ 69-73 and 78, 16 July 2009; and Fáber v. Hungary, no. 40721/08, §§ 52 and 56-58, 24 July 2012); and the manner in which the statements were made, and their capacity – direct or indirect – to lead to harmful consequences ( see Karataş v. Turkey ([GC], no. 23168/94, §§ 51-52, ECHR 1999-IV, and Vejdeland and Others v. Sweden, no. 1813/07, § 56, 9 February 2012). In all of the above cases, it was the interplay between the various factors rather than any one of them taken in isolation that determined the outcome of the case. The Court ’ s approach to that type of case can thus be described as highly context-specific ( see Perinçek v. Switzerland [GC], no. 27510/08, § 208, ECHR 2015 ( extracts )). 83. In the instant case, therefore, the Court will examine very closely, in the light of the aforementioned criteria, the words used in the impugned articles, the background to their publication and their capacity to lead to harmful consequences. In that connection, it first of all notes that the articles had been published against the background of a heated public debate on the proposals put forward by the aforementioned report concerning effective protection for minority rights in Turkey. The Court acknowledges that this is a difficult subject liable to raise concerns in nationalist circles as to the unitary structure of the Turkish nation and State. The press statements and articles criticising the applicants were therefore published in the context of a reactionary campaign conducted by the said nationalist circles against the report and its main authors, that is to say the applicants. The latter had in fact exercised their freedom of expression by drafting that report, setting out their point of view on the status and place of minorities in a democratic society, without, however, using derogatory or insulting language in connection with those holding different views on the subject. The Court considered in that regard that in order to gauge the level of tension prevailing at that time, it is sufficient to recall, firstly, the incident at the press conference organised by the applicant İbrahim Kaboğlu, when F.Y., a member of a nationalist-leaning trade union, tore up a copy of the report laid in front of Mr Kaboğlu, thus breaking up the conference ( see paragraph 11 above ), and secondly, the death threats received by the applicants, which forced the authorities to grant them special police protection ( see paragraph 14 above ) and which, in the absence of an effective judicial reaction, led the Constitutional Court to find a violation of the applicant Baskın Oran ’ s right to life and to freedom of expression ( see paragraph 45 above ). 84. As regards the words used in the impugned articles, the Court considers that certain passages of the articles are ambiguous in that they would seem to be stereotypical phrases with a nationalist ideological wording, but could also be read as condoning violence, at least by some readers with insufficient knowledge of the jargon in question who are liable to take the words in question literally. In the Court ’ s view, this applies, inter alia, to the following passages: “if [the country ’ s Turkish majority] begins to growl, shout and roar, the traitors will find no hiding or breathing place ...” ( see paragraph 15 above); “... I would warn some of [those who are going too far] not to play with fire” ( see paragraph 15 above ), and “ this report is a real piece of treachery, and those who wrote it should have it ripped to shreds over their heads. Those who want to see the Turkish nation as a minority in this country will have us to contend with ” (see paragraph 20 above ). 85. Conversely, the Court considers that some other passages are clearly such as to call directly or indirectly to violence or to condone violence. For example, it would place the following passages in that category : “ I swear that the price of the soil is blood, and if need be blood will be shed ” ( see paragraph 21 above); “in my view, if those individuals had been beaten up, people would have been relieved. The Sèvres apologists deserved a good thrashing... ” ( see paragraph 30 above ). The Court takes the view that those phrases, taken in conjunction with the stigmatising expressions used throughout the impugned articles, such as “ traitor ”, “ subversive persons [who deserve the] death penalty ”, “ Trojan horse infiltrating our country ” and “ spy ”, stirred up hatred for the persons targeted, that is to say the authors of the report, including the applicants, and exposed them to a risk of physical violence ( see Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 62, ECHR 1999 ‑ IV), especially since the statements had been published in national daily newspapers. 86. The Court considers that in the present case the risk should have been borne in mind that such articles might incite people to commit acts of violence against the applicants. It reiterates in this connection, as the applicants pointed out ( see paragraph 45 above ), that a Turkish journalist, Fırat Dink, was murdered by an ultranationalist following a stigmatisation campaign accompanied by death threats against Dink because of his unorthodox opinions on an issue which is considered sensitive in Turkish society ( see Dink v. Turkey (nos. 2668/07 and 4 others, 14 September 2010) §§ 8-17 and 107). 87. The Court considers therefore that the verbal attacks and physical threats made in the impugned articles in this context against the applicants were geared to repressing their intellectual personality, inspiring in them feelings of fear, anguish and vulnerability capable of humiliating and debasing them and of breaking their will to defend their ideas ( see, mutatis mutandis, Ülke v. Turkey, no. 39437/98, § 62, 24 January 2006). 88. Finally, the Court will now examine the domestic courts ’ judgments dismissing all the actions for damages brought by the applicants against the impugned articles. It observes that those courts, without ever explicitly characterising the articles – factual statements, value judgments or hate speech/incitement to violence – concluded that those articles had not directly targeted the applicants or comprised wanton attacks against them, that the applicants should tolerate the harsh criticism levelled at them on account, firstly, of their status, and secondly, of the criticism that they themselves had levelled in the report at their ideological adversaries, and that the articles fell within the scope of the legal provisions protecting their authors ’ freedom of expression ( see paragraphs 17, 23, 33 and 39 above ). The Court also notes that apart from the Ankara Regional Court, the domestic courts paid little or no attention to the threatening and violent expressions used in the impugned articles. In its 25 July 2006 judgment, the Ankara Regional Court held that the phrase “ the price of the soil is blood, and if need be blood will be shed ” was a popular saying and was not a threat to the applicants, and that the statement “those who want to see the Turkish nation as a minority in this country will have us to contend with” was only a criticism of the opinions expressed in the report ( see paragraph 23 above ). The Court cannot subscribe to those viewpoints for the above- mentioned reasons. 89. The Court considers that the conclusions adopted by the domestic courts are not such as to enable it to establish that they conducted an adequate balancing exercise between the applicants ’ right to respect for their private lives and the freedom of the press, pursuant to the aforementioned relevant criteria ( see paragraph 70 above ). Indeed, it holds that the judgments delivered by the domestic courts did not provide a satisfactory reply to the question whether freedom of the press could, in the circumstances of the instant case, justify the infringement of the applicants right to respect for their private lives by passages of articles liable to amount to hate speech and a call to violence, and therefore likely to expose the applicants to public condemnation ( see Mater v. Turkey, no. 54997/08, § 55, 16 July 2013). 90. Having regard to the foregoing considerations, the Court finds that in the present case the domestic courts failed to strike a fair balance between the applicants ’ right to respect for their private lives and the freedom of the press. Therefore, there has been a violation of Article 8 of the Convention. III. ALLEGED VIOLATIONS OF ARTICLES 10 AND 14 OF THE CONVENTION 91. Relying on Article 10 of the Convention, the applicants alleged that the State authorities had failed in their positive obligation to safeguard the exercise of their right to freedom of expression against press articles geared to intimidating them and stifling the debate initiated by the report on minority rights. 92. Also relying on Article 14 of the Convention, the applicants alleged, in the framework of applications nos. 50766/10 and 50782/10, that they had suffered discrimination on the grounds of their opinions. In that regard, they submitted that the authorities had failed to protect them against infringements by third persons of their right to freedom of expression in response to the opinions which they had expressed in their report on minority rights. 93. Having regard to the violation found in respect of Article 8 of the Convention ( see paragraph 90 above ), the Court considers that it has considered the main legal issue arising in the present case. In view of all the facts of the case and the parties ’ pleadings, it holds that it is no longer necessary to examine separately the admissibility or the merits of the complaints under Articles 10 and 14 of the Convention ( for a similar approach, see Kamil Uzun v. Turkey, no. 37410/97, § 64, 10 May 2007). IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 94. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party." A. Damage 95. The applicants claimed 40, 000 euros (EUR) in respect of non- pecuniary damage. 96. The Government considered that there was no causal link between the alleged violation and the claims in respect of non- pecuniary damage, which, in their view, were excessive and did not correspond to the awards made by the Court in its case-law. 97. The Court considers that the applicants should be awarded EUR 1, 500 each in respect of non- pecuniary damage. B. Costs and expenses 98. The applicants also claimed 4,202.60 Turkish Lire (TRY) (EUR 1,088.08) for the costs and expenses incurred before the domestic courts and TRY 64,000 (EUR 16,570.01) in respect of legal fees. They presented in support of their claim in respect of procedural costs for one of the four sets of proceedings a schedule of costs totalling TRY 293. 70 ( EUR 76. 04) and four invoices to a total of TRY 345. 60 ( EUR 89. 48). As regards legal fees, they presented eight fee agreements concluded between each of the two applicants and their lawyer for each of the four sets of proceedings in the domestic courts, to a total of TRY 8, 000 ( EUR 2, 071. 25) in legal fees for each set of proceedings. 99. The Government stated that the applicants had submitted no proof of payment in support of their claim in respect of costs and expenses. 100. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and its case-law, the Court considers it reasonable to award the sum of EUR 4,000 covering costs under all heads, and therefore awards it jointly to the applicants. C. Default interest 101. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 8 (right to respect for private life) of the Convention in respect of the applicants, finding that the domestic courts had not struck a fair balance between their right to respect for their private life and freedom of the press. It considered, in particular, that the verbal attacks and threats of physical harm made against the applicants sought to undermine their intellectual personality, causing them feelings of fear, anxiety and vulnerability in order to humiliate them and break their will to defend their ideas. The Court also found that the domestic courts had not provided a satisfactory answer to the question of whether freedom of the press could justify, in the circumstances of the case, the damage caused to the applicants’ right to respect for their private life by passages amounting to hate speech and incitement to violence, thus being likely to expose them to public contempt. |
234 | The definition of idem | II. RELEVANT DOMESTIC LAW AND PRACTICE 26. The Russian Constitution provides that “no one may be convicted twice for the same offence ” (Article 50 § 1). 27. The Code of Criminal Procedure establishes that criminal proceedings should be discontinued if there exists a final judgment against the suspect or defendant concerning the same charges or a decision by a court, investigator or examiner to discontinue the criminal case concerning the same charges or not to institute criminal proceedings (Article 27 §§ 4 and 5). 28. Article 158 of the RSFSR Code of Administrative Offences (in force at the material time) read as follows: Article 158 Minor disorderly acts “Minor disorderly acts, that is, utterance of obscenities in public places, offensive behaviour towards others and other similar acts that breach public order and peace, shall be punishable by a fine of between ten and fifteen months ’ minimum wages or by one to two months ’ correctional work combined with the withholding of twenty per cent of the offender ’ s wages, or – if, in the circumstances of the case and having regard to the offender ’ s character, these measures are not deemed to be adequate – by up to fifteen days ’ administrative detention.” 29. The Criminal Code of the Russian Federation (version in force at the material time), in so far as relevant, read as follows : Article 213 Disorderly acts “1. Disorderly acts, that is, serious breaches of public order or flagrant displays of disrespect towards the community, combined with the use of violence towards individuals or the threat to use violence or destroy or damage the property of others, shall be punishable ... by up to two years ’ deprivation of liberty. 2. The same acts, if committed ... (b) while resisting a public official or another person fulfilling his or her duty to maintain public order or dealing with a breach of public order ... – shall be punishable by between 180 and 240 hours ’ mandatory work or by one to two years ’ correctional work or up to five years ’ deprivation of liberty .” Article 318 § 1 Use of violence against a public official “ The use of violence not endangering life or health, or the threat to use such violence against a public official or his relatives in connection with the performance of his or her duties shall be punishable by a fine of between 200 and 500 months ’ minimum wages ... or by three to six months ’ detention or up to five years ’ deprivation of liberty ... ” Article 319 Insulting a public official “Publicly insulting a public official in the performance of his or her duties or in connection with the performance thereof shall be punishable by a fine of between 50 and 100 months ’ minimum wages, ... 120 to 180 hours ’ mandatory work or six months to a year ’ s correctional work.” 30. In Resolution no. 4 of 27 June 1978 (with subsequent amendments), the Plenary Supreme Court ruled that in cases where an administrative charge of minor disorderly acts had been brought against a defendant, but his or her actions were socially dangerous enough to be considered a crime, criminal proceedings should be brought against him or her under Article 206 of the RSFSR Criminal Code (replaced by Article 213 of the Russian Criminal Code after 1 January 1997) ( § 5). In Resolution no. 5 of 24 December 1991 (with subsequent amendments), the Plenary Supreme Court held that the lower courts should not interpret the criminal prohibition of disorderly acts extensively, in order to exclude the criminal conviction of defendants charged only with the administrative offence of minor disorderly acts (§ 20). III. RELEVANT AND COMPARATIVE INTERNATIONAL LAW A. United Nations Covenant on Civil and Political Rights 31. Article 14 § 7 of the United Nations Covenant on Civil and Political Rights provides as follows: “ No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country. ” B. Statute of the International Criminal Court 32. Article 20 of the Statute of the International Criminal Court provides as follows: “1. Except as provided in this Statute, no person shall be tried before the Court with respect to conduct which formed the basis of crimes for which the person has been convicted or acquitted by the Court. 2. No person shall be tried by another court for a crime referred to in Article 5 for which that person has already been convicted or acquitted by the Court. 3. No person who has been tried by another court for conduct also proscribed under Article 6, 7 or 8 shall be tried by the Court with respect to the same conduct unless the proceedings in the other court : (a) were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court; or (b) otherwise were not conducted independently or impartially in accordance with the norms of due process recognised by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice.” C. The European Union and the Schengen Agreement 33. Article 50 of the Charter of Fundamental Rights of the European Union, which was solemnly proclaimed by the European Parliament, the Council and the Commission in Strasbourg on 12 December 2007 (OJ 14.12.2007, C 303/1), reads as follows: “No one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with the law.” 34. Article 54 of the Convention Implementing the Schengen Agreement of 14 June 1985 (“the CISA”) provides as follows: “A person whose trial has been finally disposed of in one Contracting Party may not be prosecuted in another Contracting Party for the same acts provided that, if a penalty has been imposed, it has been enforced, is actually in the process of being enforced or can no longer be enforced under the laws of the sentencing Contracting Party.” 35. The Court of Justice of the European Union (“the CJEU ”) has recognised the non bis in idem principle as a fundamental principle of Community law ( Limburgse Vinyl Maatschappij NV (LVM) and Others v. Commission of the European Communities, Joined Cases C-238/99 P, C ‑ 24 4/99 P, C - 245/99 P, C-247/99 P, C- 2 50/99 P to C-252/99 P and C ‑ 254/99 P, § 59, 15 October 2002 ): “ ... the principle of non bis in idem, which is a fundamental principle of Community law also enshrined in Article 4 § 1 of Protocol No. 7 to the ECHR [the Convention], precludes, in competition matters, an undertaking from being found guilty or proceedings from being brought against it a second time on the grounds of anti-competitive conduct in respect of which it has been penalised or declared not liable by a previous unappealable decision. ” 36. In the area of competition law the CJEU applied the following approach to testing compliance with the non bis in idem principle ( Aalborg Portland A/S and Others v. Commission of the European Communities, Joined Cases C-204/00 P, C- 205/00 P, C- 211 /00 P, C ‑ 213/00 P, C- 217/00 P and C- 219/00 P, § 338, 7 January 2004 ): “ As regards observance of the principle ne bis in idem, the application of that principle is subject to the threefold condition of identity of the facts, unity of offender and unity of the legal interest protected. Under that principle, therefore, the same person cannot be sanctioned more than once for a single unlawful course of conduct designed to protect the same legal asset.” 37. The CJEU ’ s case-law on police and judicial cooperation in criminal matters is based on a different interpretation of “ idem ” ( Leopold Henri Van Esbroeck, Case C-436/04, 9 March 2006 ): “27. In the first place, however, the wording of Article 54 of the CISA, ‘ the same acts ’, shows that that provision refers only to the nature of the acts in dispute and not to their legal classification. 28. It must also be noted that the terms used in that Article differ from those used in other international treaties which enshrine the ne bis in idem principle. Unlike Article 54 of the CISA, Article 14 § 7 of the International Covenant on Civil and Political Rights and Article 4 of Protocol No. 7 to the European Convention for the Protection of Human Rights and Fundamental Freedoms use the term ‘ offence ’, which implies that the criterion of the legal classification of the acts is relevant as a prerequisite for the applicability of the ne bis in idem principle which is enshrined in those treaties. ... 30. There is a necessary implication in the ne bis in idem principle, enshrined in that Article, that the Contracting States have mutual trust in their criminal justice systems and that each of them recognises the criminal law in force in the other Contracting States even when the outcome would be different if its own national law were applied ([ Case C-385/01 ] Gözütok and Brügge [ [2003] ECR I-1345 ], paragraph 33). 31. It follows that the possibility of divergent legal classifications of the same acts in two different Contracting States is no obstacle to the application of Article 54 of the CISA. 32. For the same reasons, the criterion of the identity of the protected legal interest cannot be applicable since that criterion is likely to vary from one Contracting State to another. 33. The above findings are further reinforced by the objective of Article 54 of the CISA, which is to ensure that no one is prosecuted for the same acts in several Contracting States on account of his having exercised his right to freedom of movement ( Gözütok and Brügge, paragraph 38, and Case C-469/03 Miraglia [2005] ECR I-2009, paragraph 32). 34. As pointed out by the Advocate General in point 45 of his Opinion, that right to freedom of movement is effectively guaranteed only if the perpetrator of an act knows that, once he has been found guilty and served his sentence, or, where applicable, been acquitted by a final judgment in a member State, he may travel within the Schengen territory without fear of prosecution in another member State on the basis that the legal system of that member State treats the act concerned as a separate offence. 35. Because there is no harmonisation of national criminal laws, a criterion based on the legal classification of the acts or on the protected legal interest might create as many barriers to freedom of movement within the Schengen territory as there are penal systems in the Contracting States. 36. In those circumstances, the only relevant criterion for the application of Article 54 of the CISA is identity of the material acts, understood in the sense of the existence of a set of concrete circumstances which are inextricably linked together. ... 38. ... the definitive assessment in that regard belongs ... to the competent national courts which are charged with the task of determining whether the material acts at issue constitute a set of facts which are inextricably linked together in time, in space and by their subject matter.” 38. The CJEU confirmed and developed this approach in the most recent case concerning the application of the non bis in idem principle ( Norma Kraaijenbrink, Case C-367/05, 18 July 2007 ): “26. ... it should be noted that the Court has already held that the only relevant criterion for the application of Article 54 of the CISA is identity of the material acts, understood as the existence of a set of concrete circumstances which are inextricably linked together (see Van Esbroeck, paragraph 36; Case C-467/04 Gasparini and Others [2006] ECR I-9199, paragraph 54; and Case C-150/05 Van Straaten [2006] ECR I-9327, paragraph 48). 27. In order to assess whether such a set of concrete circumstances exists, the competent national courts must determine whether the material acts in the two proceedings constitute a set of facts which are inextricably linked together in time, in space and by their subject matter (see, to that effect, Van Esbroeck, paragraph 38; Gasparini and Others, paragraph 56; and Van Straaten, paragraph 52). 28. It follows that the starting - point for assessing the notion of ‘ same acts ’ within the meaning of Article 54 of the CISA is to consider the specific unlawful conduct which gave rise to the criminal proceedings before the courts of the two Contracting States as a whole. Thus, Article 54 of the CISA can become applicable only where the court dealing with the second criminal prosecution finds that the material acts, by being linked in time, in space and by their subject matter, make up an inseparable whole. 29. On the other hand, if the material acts do not make up such an inseparable whole, the mere fact that the court before which the second prosecution is brought finds that the alleged perpetrator of those acts acted with the same criminal intention does not suffice to indicate that there is a set of concrete circumstances which are inextricably linked together covered by the notion of ‘ same acts ’ within the meaning of Article 54 of the CISA. 30. As the Commission of the European Communities in particular pointed out, a subjective link between acts which gave rise to criminal proceedings in two different Contracting States does not necessarily mean that there is an objective link between the material acts in question which, consequently, could be distinguished in time and space and by their nature. ... 32. ... it is for the competent national courts to assess whether the degree of identity and connection between all the factual circumstances that gave rise to those criminal proceedings against the same person in the two Contracting States is such that it is possible to find that they are ‘ the same acts ’ within the meaning of Article 54 of the CISA. ... 36. In the light of the foregoing, the answer to the first question must therefore be that Article 54 of the CISA is to be interpreted as meaning that : – the relevant criterion for the purposes of the application of that Article is identity of the material acts, understood as the existence of a set of facts which are inextricably linked together, irrespective of the legal classification given to them or the legal interest protected; – different acts consisting, in particular, first, in holding in one Contracting State the proceeds of drug trafficking and, second, in the exchanging at exchange bureaux in another Contracting State of sums of money also originating from such trafficking should not be regarded as ‘ the same acts ’ within the meaning of Article 54 of the CISA merely because the competent national court finds that those acts are linked together by the same criminal intention; – it is for that national court to assess whether the degree of identity and connection between all the facts to be compared is such that it is possible, in the light of the said relevant criterion, to find that they are ‘ the same acts ’ within the meaning of Article 54 of the CISA.” D. American Convention on Human Rights 39. Article 8 § 4 of the American Convention on Human Rights reads as follows: “An accused person acquitted by a non-appealable judgment shall not be subjected to a new trial for the same cause.” 40. The Inter-American Court of Human Rights gave the following interpretation of that provision ( Loayza - Tamayo v. Peru, 17 September 1997, Series C No. 33, § 66 ) : “ This principle is intended to protect the rights of individuals who have been tried for specific facts from being subjected to a new trial for the same cause. Unlike the formula used by other international human rights protection instruments (for example, the United Nations International Covenant on Civil and Political Rights, Article 14 § 7), which refers to the same ‘ crime ’ ), the American Convention uses the expression ‘ the same cause ’, which is a much broader term in the victim ’ s favour. ” E. Supreme Court of the United States 41. In the United States the double-jeopardy rule arises out of the Fifth Amendment to the Constitution, the relevant clause of which reads: “ ... nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb ... ” 42. In the case of Blockburger v. United States, 284 U.S. 299 (1932), in which the defendant had sold drugs not in the original package and without a written order of the purchaser, and where the sale had been characterised as two statutory offences, the Supreme Court adopted the following interpretation: “Section 1 of the Narcotic Act creates the offense of selling any of the forbidden drugs except in or from the original stamped package; and section 2 creates the offense of selling any of such drugs not in pursuance of a written order of the person to whom the drug is sold. Thus, upon the face of the statute, two distinct offenses are created. Here there was but one sale, and the question is whether, both sections being violated by the same act, the accused committed two offenses or only one. ... Each of the offenses created requires proof of a different element. The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not ... [T]his court quoted from and adopted the language of the Supreme Court of Massachusetts in Morey v. Commonwealth, 108 Mass. 433: ‘ A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other ’ .” 43. In the case of Grady v. Corbin, 495 U.S. 508 (1990), which concerned “vehicular homicide” by the defendant Mr Corbin, the Supreme Court developed a different approach: “ ... [A] technical comparison of the elements of the two offenses as required by Blockburger does not protect defendants sufficiently from the burdens of multiple trials. This case similarly demonstrates the limitations of the Blockburger analysis. If Blockburger constituted the entire double - jeopardy inquiry in the context of successive prosecutions, the State could try Corbin in four consecutive trials: for failure to keep right of the median, for driving while intoxicated, for assault, and for homicide. The State could improve its presentation of proof with each trial, assessing which witnesses gave the most persuasive testimony, which documents had the greatest impact, which opening and closing arguments most persuaded the jurors. Corbin would be forced either to contest each of these trials or to plead guilty to avoid the harassment and expense. Thus, a subsequent prosecution must do more than merely survive the Blockburger test. As we suggested in Vitale, the double -jeopardy clause bars any subsequent prosecution in which the government, to establish an essential element of an offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted. ... The critical inquiry is what conduct the State will prove, not the evidence the State will use to prove that conduct ... [A] State cannot avoid the dictates of the double -jeopardy clause merely by altering in successive prosecutions the evidence offered to prove the same conduct ... ” 44. Nevertheless, in the case of United States v. Dixon, 509 U.S. 688 (1993), the Supreme Court returned to the Blockburger test: “ The double -jeopardy clause ’ s protection attaches in non - summary criminal contempt prosecutions just as it does in other criminal prosecutions. In the contexts of both multiple punishments and successive prosecution, the double - jeopardy bar applies if the two offenses for which the defendant is punished or tried cannot survive the ‘ same elements ’ or ‘ Blockburger ’ test. ... That test inquires whether each offense contains an element not contained in the other; if not, they are the ‘ same offense ’ within the clause ’ s meaning, and double jeopardy bars subsequent punishment or prosecution. ... Although prosecution [in the present case] would undoubtedly be barred by the Grady ‘ same - conduct ’ test, Grady must be overruled because it contradicted an unbroken line of decisions ... and has produced confusion. ... Moreover, the Grady rule has already proved unstable in application, see United States v. Felix, 503 U.S. ... Although the Court does not lightly reconsider precedent, it has never felt constrained to follow prior decisions that are unworkable or badly reasoned. ” THE LAW I. THE GOVERNMENT ’ S PRELIMINARY OBJECTION 45. Before the Grand Chamber the Government raised for the first time the objection of non-exhaustion of domestic remedies. They maintained that the applicant had not appealed against his administrative conviction or the decision to institute criminal proceedings. 46. The Court reiterates that, pursuant to Rule 55 of the Rules of Court, any plea of inadmissibility must, in so far as its character and the circumstances permit, be raised by the respondent Contracting Party in its written or oral observations on the admissibility of the application (see Prokopovich v. Russia, no. 58255/00, § 29, ECHR 2004-XI, with further references). At the admissibility stage the Government did not raise any objection concerning the exhaustion of domestic remedies. Consequently, the Government are estopped from raising a preliminary objection of non ‑ exhaustion of domestic remedies at the present stage of the proceedings. The Government ’ s objection must therefore be dismissed. II. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL No. 7 47. The applicant complained under Article 4 of Protocol No. 7 that, after he had already served three days ’ detention for disorderly acts committed on 4 January 2002, he had been tried again for the same offence. Article 4 of Protocol No. 7 provides as follows: “1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State. 2. The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case. 3. No derogation from this Article shall be made under Article 15 of the Convention. ” A. Whether the first sanction was criminal in nature 48. The Court observes that on 4 January 2002 the applicant was found guilty in proceedings conducted under the Code of Administrative Offences which were regarded as “ administrative ” rather than “criminal” according to the Russian legal classification. Thus, in order to determine whether the applicant was “finally acquitted or convicted in accordance with the law and penal procedure of [the] State”, the first issue to be decided is whether those proceedings concerned a “criminal” matter within the meaning of Article 4 of Protocol No. 7. 1. The Chamber ’ s conclusion 49. The Chamber, having regard to the maximum fifteen-day penalty which the offence under Article 158 of the Code of Administrative Offences carried and the three-day term of detention which the applicant had actually served, considered that the finding of guilt in the proceedings conducted on 4 January 2002 amounted to a “criminal” conviction within the meaning of Article 4 of Protocol No. 7. 2. The parties ’ submissions (a) The applicant 50. The applicant submitted that his conviction of an offence under Article 158 of the Code of Administrative Offences satisfied the criteria set out in the Court ’ s jurisprudence on interpretation of the notion of “criminal charge”. He pointed out that it was the potential penalty – in his case, fifteen days ’ imprisonment – rather than the actual penalty imposed which was the decisive element for classification of an offence as “criminal” (he referred to the cases of Engel and Others v. the Netherlands, 8 June 1976, § 85, Series A no. 22, and Lauko v. Slovakia, 2 September 1998, Reports of Judgments and Decisions 1998 ‑ VI). He recalled that he had been handcuffed in order to be brought before a judge, found guilty on the same day and sentenced to three days ’ imprisonment with immediate effect. (b) The Government 51. The Government accepted that the applicant ’ s conviction on 4 January 2002 had been “criminal” in nature. 3. The Court ’ s assessment 52. The Court reiterates that the legal characterisation of the procedure under national law cannot be the sole criterion of relevance for the applicability of the principle of non bis in idem under Article 4 § 1 of Protocol No. 7. Otherwise, the application of this provision would be left to the discretion of the Contracting States to a degree that might lead to results incompatible with the object and purpose of the Convention (see, most recently, Storbråten v. Norway (dec.), no. 12277/04, 1 February 2007, with further references ). The notion of “penal procedure” in the text of Article 4 of Protocol No. 7 must be interpreted in the light of the general principles concerning the corresponding words “criminal charge” and “penalty” in Articles 6 and 7 of the Convention respectively (see Haarvig v. Norway (dec.), no. 11187/05, 11 December 2007; Rosenquist v. Sweden (dec.), no. 60619/00, 14 September 2004; Manasson v. Sweden ( dec .), no. 41265/98, 8 April 2003; Göktan v. France, no. 33402/96, § 48, ECHR 2002-V; Malige v. France, 23 September 1998, § 35, Reports 1998 ‑ VII; and Nilsson v. Sweden (dec.), no. 73661/01, ECHR 2005 ‑ XIII ). 53. The Court ’ s established case-law sets out three criteria, commonly known as the “ Engel criteria ” (see Engel and Others, cited above), to be considered in determining whether or not there was a “criminal charge”. The first criterion is the legal classification of the offence under national law, the second is the very nature of the offence and the third is the degree of severity of the penalty that the person concerned risks incurring. The second and third criteria are alternative and not necessarily cumulative. This, however, does not exclude a cumulative approach where separate analysis of each criterion does not make it possible to reach a clear conclusion as to the existence of a criminal charge (see, as recent authorities, Jussila v. Finland [GC], no. 73053/01, § § 30-31, ECHR 2006 ‑ XIV, and Ezeh and Connors v. the United Kingdom [GC], nos. 39665/98 and 40086/98, § § 82-86, ECHR 2003 ‑ X ). 54. In the domestic legal classification the offence of “minor disorderly acts” under Article 158 of the Code of Administrative Offences was characterised as an “administrative” one. Nevertheless, the Court reiterates that it has previously found that the sphere defined in the Russian and other similar legal systems as “administrative” embraces certain offences that have a criminal connotation but are too trivial to be governed by criminal law and procedure (see Menesheva v. Russia, no. 59261/00, § 96, ECHR 2006 ‑ III; Galstyan v. Armenia, no. 26986/03, § 57, 15 November 2007; and Ziliberberg v. Moldova, no. 61821/00, § § 32-35, 1 February 2005 ). 55. By its nature, the inclusion of the offence of “minor disorderly acts” in the Code of Administrative Offences served to guarantee the protection of human dignity and public order, values and interests which normally fall within the sphere of protection of criminal law. The corresponding provision of the Code was directed towards all citizens rather than towards a group possessing a special status. The reference to the “minor” nature of the acts does not, in itself, exclude its classification as “criminal” in the autonomous sense of the Convention, as there is nothing in the Convention to suggest that the criminal nature of an offence, within the meaning of the Engel criteria, necessarily requires a certain degree of seriousness (see Ezeh and Connors, cited above, § 104). Finally, the Court considers that the primary aims in establishing the offence in question were punishment and deterrence, which are recognised as characteristic features of criminal penalties (ibid., §§ 102 and 105). 56. As to the degree of severity of the measure, it is determined by reference to the maximum potential penalty for which the relevant law provides. The actual penalty imposed is relevant to the determination but it cannot diminish the importance of what was initially at stake (ibid., § 120). The Court observes that Article 158 of the Code of Administrative Offences provided for fifteen days ’ imprisonment as the maximum penalty and that the applicant was eventually sentenced to serve three days ’ deprivation of liberty. As the Court has confirmed on many occasions, in a society subscribing to the rule of law, where the penalty liable to be and actually imposed on an applicant involves the loss of liberty, there is a presumption that the charges against the applicant are “ criminal ”, a presumption which can be rebutted entirely exceptionally, and only if the deprivation of liberty cannot be considered “appreciably detrimental” given their nature, duration or manner of execution (see Engel and Others, § 82, and Ezeh and Connors, § 126, both cited above). In the present case the Court does not discern any such exceptional circumstances. 57. In the light of the above considerations the Court concludes, as did the Chamber, that the nature of the offence of “minor disorderly acts”, together with the severity of the penalty, were such as to bring the applicant ’ s conviction on 4 January 2002 within the ambit of “penal procedure” for the purposes of Article 4 of Protocol No. 7. B. Whether the offences for which the applicant was prosecuted were the same ( idem ) 58. Article 4 of Protocol No. 7 establishes the guarantee that no one shall be tried or punished for an offence of which he or she has already been finally convicted or acquitted. Given the multitude of charges levelled against the applicant in criminal proceedings, the Court considers it necessary to determine at the outset whether any criminal offence the applicant was charged with was essentially similar to the administrative offence of which he was convicted. 1. The Chamber ’ s conclusion 59. The Chamber found that, as regards the applicant ’ s conviction under Articles 318 and 319 of the Criminal Code for insulting and threatening violence against public officials, this part of the conviction had been based on acts separate from and subsequent in time to those on which his conviction of “disorderly acts” had been founded. On the other hand, the charge of “disorderly acts” under Article 213 of the Criminal Code brought against the applicant had referred to the same facts as those forming the basis for his conviction under Article 158 of the Code of Administrative Offences. Given that the offence of “minor disorderly acts” as defined in Article 158 and that of “disorderly acts” under Article 213 had the same essential elements, namely disturbance of public order, the Chamber concluded that the applicant had been prosecuted for an offence of which he had already been convicted previously. 2. The parties ’ submissions (a) The applicant 60. The applicant submitted that where different offences were prosecuted consecutively as the result of a single act, the key question was whether or not the offences had the “same essential elements”. In the Court ’ s jurisprudence, separate offences were distinguished, using the “same essential elements” test, in five circumstances. Firstly, where the conduct attributed to the applicant was not the same with regard to the two offences (as in Manasson, cited above). Secondly, where the offences themselves had different essential aspects (as in Schutte v. Austria, no. 18015/03, 26 July 2007, where the Criminal Code referred to the use of dangerous threat or force against official authority, while the Road Traffic Act merely punished a failure to stop for the purpose of a traffic check). Thirdly, where an essential condition as to the nature of the defendant ’ s guilt was required for one offence but did not apply to the other (such as proof of intent or neglect, as in Rosenquist, cited above, or proof of wilful failure, as in Ponsetti and Chesnel v. France (dec.), nos. 36855/97 and 41731/98, ECHR 1999 ‑ VI ). Fourthly, if the purpose of the measures was different (for example, prevention and deterrence as opposed to retribution, as in Mjelde v. Norway (dec.), no. 11143/04, 1 February 2007 ). Fifthly, where the sanctions concerned two distinct legal entities (as in Isaksen v. Norway (dec.), no. 13596/02, 2 October 2003 ). 61. With regard to the instant case, the applicant pointed out that he had been charged in criminal proceedings under Article 213 of the Criminal Code for his actions on the morning of 4 January 2002, for which he had already been subjected to an administrative penalty. In his submission, the offences for which he had been prosecuted under Article 213 of the Criminal Code and Article 158 of the Code of Administrative Offences respectively contained the same essential elements, both factual and legal. 62. In the applicant ’ s view, both sets of proceedings against him had concerned the same facts, that is, swearing at the policemen, breaching public order, refusing to submit to police orders and trying to leave the police station on the morning of 4 January 2002. Their factual identity was borne out by the description of the applicant ’ s actions in the administrative offence report of 4 January 2002 and the bill of indictment of 19 April 2002. 63. As to the characterisation which could be given to those facts in law, the prosecution of the applicant ’ s actions was possible either under Article 158 of the Code of Administrative Offences or under Article 213 of the Criminal Code. Although the actus reus of the two offences was not precisely the same, they both had the same essential elements. The notion of “flagrant displays of disrespect towards the community” under Article 213 essentially encompassed “utterance of obscenities [and] offensive behaviour towards others” under Article 158. The applicant referred to the jurisprudence of the Russian Supreme Court, which had held since 1978 that one act could constitute either an administrative offence of “minor disorderly acts” or a crime of “disorderly acts” but never both (see paragraph 30 above). Consequently, the possibility of a single act constituting various offences ( concours ideal d ’ infractions ) was excluded in the present case. (b) The Government 64. The Government maintained that the applicant had committed two offences which were distinct from both a factual and legal point of view. 65. On the facts, the Government claimed that the prosecution of the applicant for the crime of “disorderly acts” under Article 213 § 2 of the Criminal Code had referred to his verbal assaults on Captain S. and Major K. while the latter was preparing an administrative offence report, that is, after the administrative offence had already been committed. According to the Government, given the requirements that the administrative proceedings be conducted “speedily” and within a “reasonable time”, the domestic authorities had been unable to prosecute those actions on the part of the applicant immediately as they had been occupied with bringing the applicant before a judge. The institution of criminal proceedings had necessitated additional time and the completion of specific procedural acts. In the Government ’ s view, the present case was similar in terms of its factual circumstances to the cases of Schutte (cited above) and Asci v. Austria ( ( dec. ), no. 4483/02, ECHR 2006 ‑ XV ). 66. As to the legal characterisation, the Government acknowledged that both the administrative offence of “minor disorderly acts” and the crime of “disorderly acts” protected the same legal interest, that of public order. However, the two offences differed in their actus reus, the seriousness of the breach of public order and also the severity of the penalty. The administrative offence was less serious than the crime since it covered merely a deviation from established social and moral norms, whereas the crime implied the use of violence and resistance against a public official. The Government pointed out that not only were “minor disorderly acts” punishable by a shorter term of imprisonment, but the conditions of administrative detention were also better than they would be in a prison where convicted criminals served their sentences. There was therefore no identity of the offences. (c) The third party 67. The third party argued that the French word “ infraction ” and the English word “offence” had a twofold origin : firstly in the actual, concrete malicious act that created public disorder, and secondly in the legal classification of the offence, that is, the description in a legal rule of conduct which was liable to a penalty. The lay meaning of “ infraction ” or “offence” related to the offender ’ s conduct. That confusion was maintained by the instruments of international law, which in fact used both expressions (“offences” and “facts ” ). This explained why “offence” had been translated as “ les mêmes faits ” in the French version of the Convention Implementing the Schengen Agreement signed in 1990. 68. In the third party ’ s opinion, the ambiguity surrounding the terms “ infraction ” and “offence” created confusion within the Convention institutions. Whereas the Commission, in the case of Raninen v. Finland (no. 20972/92, Commission decision of 7 March 1996, Decisions and Reports 87-A, p. 17 ), and the Court in the case of Gradinger v. Austria ( 23 October 1995, Series A no. 328 ‑ C) used the word “offence” to describe the applicant ’ s conduct, the judgment in the case of Oliveira v. Switzerland (30 July 1998, Reports 1998 ‑ V) signalled a new departure, whereby the Court accepted that different courts could adjudicate on “separate offences, even if they [were] all part of a single criminal act”. Hence, the “offence” concept construed as conduct had begun to give way to an approach which the authors of Protocol No. 7 had not foreseen. 69. The third party criticised the Court ’ s case-law for its unpredictability and legal uncertainty and urged the Court to adopt a more consistent approach. In its opinion, the approach consisting in defining “ idem ” on the basis of the “same facts” was a much safer method for the individual than that based on legal identity. The adoption of the “same facts” approach would enhance the credibility of the Court ’ s case-law concerning an inalienable right which must never be subject to national discretionary powers. 3. The Court ’ s assessment (a) Summary of the existing approaches 70. The body of case-law that has been accumulated throughout the history of application of Article 4 of Protocol No. 7 by the Court demonstrates the existence of several approaches to the question whether the offences for which an applicant was prosecuted were the same. 71. The first approach, which focuses on the “same conduct” on the applicant ’ s part irrespective of the classification in law given to that conduct ( idem factum ), is exemplified in the Gradinger judgment. In that case Mr Gradinger had been criminally convicted of causing death by negligence and also fined in administrative proceedings for driving under the influence of alcohol. The Court found that although the designation, nature and purpose of the two offences were different, there had been a breach of Article 4 of Protocol No. 7 in so far as both decisions had been based on the same conduct by the applicant (see Gradinger, cited above, § 55). 72. The second approach also proceeds from the premise that the conduct by the defendant which gave rise to prosecution is the same, but posits that the same conduct may constitute several offences ( concours idéal d ’ infractions ) which may be tried in separate proceedings. That approach was developed by the Court in the case of Oliveira (cited above), in which the applicant had been convicted first of failing to control her vehicle and subsequently of negligently causing physical injury. Her car had veered onto the other side of the road, hitting one car and then colliding with a second, whose driver had sustained serious injuries. The Court found that the facts of the case were a typical example of a single act constituting various offences, whereas Article 4 of Protocol No. 7 only prohibited people from being tried twice for the same offence. In the Court ’ s view, although it would have been more consistent with the principle of the proper administration of justice if the sentence in respect of both offences had been passed by the same court in a single set of proceedings, the fact that two sets of proceedings were at issue in the case in question was not decisive. The fact that separate offences, even where they were all part of a single criminal act, were tried by different courts did not give rise to a breach of Article 4 of Protocol No. 7, especially where the penalties were not cumulative (see Oliveira, cited above, § § 25-29). In the subsequent case of Göktan the Court also held that there had been no violation of Article 4 of Protocol No. 7 because the same criminal conduct of which the applicant had been convicted constituted two separate offences: a crime of dealing in illegally imported drugs and a customs offence of failing to pay the customs fine (see Göktan, cited above, § 50). This approach was also employed in the cases of Gauthier v. France ( ( dec. ), no. 61178/00, 24 June 2003) and Öngün v. Turkey ( ( dec. ), no. 15737/02, 10 October 2006). 73. The third approach puts the emphasis on the “essential elements” of the two offences. In Franz Fischer v. Austria ( no. 37950/97, 29 May 2001 ), the Court confirmed that Article 4 of Protocol No. 7 tolerated prosecution for several offences arising out of a single criminal act ( concours idéal d ’ infractions ). However, since it would be incompatible with this provision if an applicant could be tried or punished again for offences which were merely “nominally different”, the Court held that it should additionally examine whether or not such offences had the same “essential elements”. As in Mr Fischer ’ s case the administrative offence of drunken driving and the crime of causing death by negligence while “allowing himself to be intoxicated” had the same “essential elements”, the Court found a violation of Article 4 of Protocol No. 7. It also pointed out that had the two offences for which the person concerned was prosecuted only overlapped slightly, there would have been no reason to hold that the defendant could not be prosecuted for each of them in turn. The same approach was followed in the case of W.F. v. Austria ( no. 38275/97, 30 May 2002 ) and Sailer v. Austria ( no. 38237/97, 6 June 2002), both of which were based on a similar set of circumstances. 74. Since the introduction of the concept of “essential elements”, the Court has frequently referred to it in the follow-up cases. In Manasson the “essential element” distinguishing the taxation-law contravention from the criminal-law offence was found to be “the applicant ’ s reliance on the incorrect information contained in the books when submitting his tax returns” (see Manasson, cited above). Similarly, in Bachmaier, the Court noted that the special aggravating element of drunken driving had been established only in one set of proceedings (see Bachmaier v. Austria (dec.), no. 77413/01, 2 September 2004). 75. In a series of cases involving tax-related offences, two taxation offences were found to differ in their criminal intent and purpose (see Rosenquist, cited above). The same two distinctions were found to be relevant in the cases of Storbråten and Haarvig, both cited above. 76. A different set of “essential elements” featured in the Court ’ s analysis in two Austrian cases. In Hauser-Sporn it held that the offence of abandoning a victim and the offence of failing to inform the police about an accident differed in their criminal intent and also concerned different acts and omissions (see Hauser-Sporn v. Austria, no. 37301/03, § § 43-46, 7 December 2006 ). In Schutte the “essential element” of one offence was the use of dangerous threat or force as a means of resisting the exercise of official authority, whereas the other concerned a simple omission in the context of road safety, namely the failure to stop at the request of the police (see Schutte, cited above, § 42). 77. Finally, in its most recent decision on the subject the Court determined that the two offences in question had different “essential elements” in that they were distinguishable in terms of their gravity and consequences, the social value being protected and the criminal intent (see Garretta v. France (dec.), no. 2529/04, 4 March 2008). (b) Harmonisation of the approach to be taken 78. The Court considers that the existence of a variety of approaches to ascertain whether the offence for which an applicant has been prosecuted is indeed the same as the one of which he or she was already finally convicted or acquitted engenders legal uncertainty incompatible with a fundamental right, namely the right not to be prosecuted twice for the same offence. It is against this background that the Court is now called upon to provide a harmonised interpretation of the notion of the “same offence” – the idem element of the non bis in idem principle – for the purposes of Article 4 of Protocol No. 7. While it is in the interests of legal certainty, foreseeability and equality before the law that the Court should not depart, without good reason, from precedents laid down in previous cases, a failure by the Court to maintain a dynamic and evolutive approach would risk rendering it a bar to reform or improvement (see Vilho Eskelinen and Others v. Finland [GC], no. 63235/00, § 56, ECHR 2007 ‑ II ). 79. An analysis of the international instruments incorporating the non bis in idem principle in one or another form reveals the variety of terms in which it is couched. Thus, Article 4 of Protocol No. 7 to the Convention, Article 14 § 7 of the United Nations Covenant on Civil and Political Rights and Article 50 of the Charter of Fundamental Rights of the European Union refer to the “[same] offence” (“ [même] infraction ” ), the American Convention on Human Rights speaks of the “ same cause” (“ mêmes faits ”), the Convention Implementing the Schengen Agreement prohibits prosecution for the “same acts” (“ mêmes faits ”), and the Statute of the International Criminal Court employs the term “ [same] conduct” ( “ [mêmes] actes constitutifs ”). The difference between the terms “same acts” or “same cause” (“ mêmes faits ”) on the one hand and the term “ [same] offence” (“ [même] infraction ”) on the other was held by the Court of Justice of the European Union and the Inter-American Court of Human Rights to be an important element in favour of adopting the approach based strictly on the identity of the material acts and rejecting the legal classification of such acts as irrelevant. In so finding, both tribunals emphasised that such an approach would favour the perpetrator, who would know that, once he had been found guilty and served his sentence or had been acquitted, he need not fear further prosecution for the same act (see paragraphs 37 and 40 above). 80. The Court considers that the use of the word “offence” in the text of Article 4 of Protocol No. 7 cannot justify adhering to a more restrictive approach. It reiterates that the Convention must be interpreted and applied in a manner which renders its rights practical and effective, not theoretical and illusory. It is a living instrument which must be interpreted in the light of present-day conditions (see, among other authorities, Tyrer v. the United Kingdom, 25 April 1978, § 31, Series A no. 26, and Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 75, ECHR 2002 ‑ VI ). The provisions of an international treaty such as the Convention must be construed in the light of their object and purpose and also in accordance with the principle of effectiveness (see Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 123, ECHR 2005 ‑ I ). 81. The Court further notes that the approach which emphasises the legal characterisation of the two offences is too restrictive on the rights of the individual, for if the Court limits itself to finding that the person was prosecuted for offences having a different legal classification it risks undermining the guarantee enshrined in Article 4 of Protocol No. 7 rather than rendering it practical and effective as required by the Convention (compare Franz Fischer, cited above, § 25). 82. Accordingly, the Court takes the view that Article 4 of Protocol No. 7 must be understood as prohibiting the prosecution or trial of a second “offence” in so far as it arises from identical facts or facts which are substantially the same. 83. The guarantee enshrined in Article 4 of Protocol No. 7 becomes relevant on commencement of a new prosecution, where a prior acquittal or conviction has already acquired the force of res judicata. At this juncture the available material will necessarily comprise the decision by which the first “penal procedure” was concluded and the list of charges levelled against the applicant in the new proceedings. Normally, these documents would contain a statement of facts concerning both the offence for which the applicant has already been tried and the offence of which he or she stands accused. In the Court ’ s view, such statements of fact are an appropriate starting - point for its determination of the issue whether the facts in both proceedings were identical or substantially the same. The Court emphasises that it is irrelevant which parts of the new charges are eventually upheld or dismissed in the subsequent proceedings, because Article 4 of Protocol No. 7 contains a safeguard against being tried or being liable to be tried again in new proceedings rather than a prohibition on a second conviction or acquittal (compare paragraph 110 below). 84. The Court ’ s inquiry should therefore focus on those facts which constitute a set of concrete factual circumstances involving the same defendant and inextricably linked together in time and space, the existence of which must be demonstrated in order to secure a conviction or institute criminal proceedings. (c) Application of this approach to the present case 85. The Court will begin its analysis of the circumstances in the instant case by reviewing the sequence of events that occurred on 4 January 2002 and the charges brought against the applicant. 86. Early in the morning the applicant ’ s girlfriend was discovered within the military compound and they were both taken to police station no. 9 in order to furnish explanations. No proceedings were brought in respect of the applicant ’ s girlfriend ’ s unlawful entry into the compound. 87. Once at the police station, the applicant began to shout at Ms Y. and Captain S. and pushed the latter. He then attempted to leave but was stopped and handcuffed. The police officers decided that the applicant ’ s insolent behaviour amounted to an administrative offence. 88. The applicant was then taken to the office of Major K., who started drafting a report on the administrative offence. Captain S. and another officer were also present. The applicant continued to behave improperly and swore at Major K. 89. After the report had been completed, the policemen put the applicant in a car to take him to the Gribanovskiy district police station. En route the applicant continued to swear at Major K. – who was riding in the same car – and threatened to kill him. 90. As regards the proceedings brought against the applicant, the Court observes, firstly, that on 4 January 2002 the District Court convicted the applicant of an offence of “minor disorderly acts” under Article 158 of the Code of Administrative Offences. Although the District Court ’ s judgment contained only one sentence relevant to the establishment of the facts and did not mention any evidence, it may be reasonably assumed that it was based on the administrative offence report which had been compiled by the police and submitted to the District Court (see paragraph 15 above). It transpires that the applicant was found guilty in the administrative proceedings of swearing at police employees and breaching public order shortly after his arrival at police station no. 9. 91. In the subsequent criminal proceedings the applicant was indicted on three charges in relation to the events of 4 January 2002 (see the charge sheet cited in paragraph 21 above). Firstly, he was charged with “disorderly acts” under Article 213 of the Criminal Code for swearing at Ms Y. and Captain S. and breaching public order in the immediate aftermath of his arrival at police station no. 9. Secondly, he was charged with insulting a public official under Article 319 of the Criminal Code for swearing at Major K. in his office while the latter was drafting the administrative offence report. Thirdly, he was charged with threatening violence against a public official under Article 318 of the Criminal Code for threatening to kill Major K. when en route to the Gribanovskiy district police station. 92. This recapitulation of the events and charges demonstrates that in the first episode the applicant swore at Ms Y. and Captain S. on the premises of the passport office, whereas in the second and third episodes he insulted Major K., first in his office and then in the car, and threatened him with violence. Hence, there was no temporal or spatial unity between the three episodes. It follows that although in essence the applicant ’ s conduct was substantially similar during the entire day of 4 January 2002 – in that he continued to be verbally abusive towards various officials – it was not a continuous act but rather different manifestations of the same conduct shown on a number of distinct occasions (compare Raninen, cited above). 93. As to the second and third episodes involving Major K., the charges against the applicant were raised for the first and only time in the criminal proceedings. It cannot therefore be said that he was tried again for an offence of which he had already been finally acquitted or convicted. Accordingly, no issue arises under Article 4 of Protocol No. 7 in respect of his prosecution under Articles 319 and 318 of the Criminal Code. 94. The situation is, however, different with regard to the disorderly conduct in respect of which the applicant was first convicted in the administrative proceedings under Article 158 of the Code of Administrative Offences and subsequently prosecuted under Article 213 of the Criminal Code. Since the same conduct on the part of the same defendant and within the same time frame is at issue, the Court is required to verify whether the facts of the offence of which the applicant was convicted and those of the offence with which he was charged were identical or substantially the same. 95. The definition of the offence of “minor disorderly acts” under Article 158 referred to three types of prohibited conduct: “utterance of obscenities in public”, “offensive behaviour towards others” and “other acts that breach public order”. Each of these elements was in itself sufficient for a finding of guilt. Of these, the District Court took account of two elements: uttering obscenities and failure to respond to reprimands, which could be interpreted as a form of “acts that breach public order”. 96. In the ensuing criminal proceedings the applicant was charged under Article 213 § 2 (b) of the Criminal Code. This charge required the prosecution to prove that the defendant had (a) seriously breached public order or displayed flagrant disrespect towards the community; (b) used violence or threatened the use of violence; and (c) resisted a public official. The prosecution ’ s case was that the applicant had uttered obscenities at Ms Y. and Captain S. and had also pushed the latter and threatened him with physical violence. It is not the Court ’ s task to decide whether each of these elements was properly substantiated because, as it has been noted above, a conviction in the second proceedings is not a required element in order for the guarantee of Article 4 of Protocol No. 7 to apply, it being sufficient for the applicant to have been liable to be tried and/or to have actually been tried on these charges. 97. The facts that gave rise to the administrative charge against the applicant related to a breach of public order in the form of swearing at the police officials Ms Y. and Captain S. and pushing the latter. The same facts formed the central element of the charge under Article 213 of the Criminal Code, according to which the applicant had breached public order by uttering obscenities, threatening Captain S. with violence and providing resistance to him. Thus, the facts in the two sets of proceedings differed in only one element, namely the threat of violence, which had not been mentioned in the first proceedings. Accordingly, the Court finds that the criminal charge under Article 213 § 2 (b) embraced the facts of the offence under Article 158 of the Code of Administrative Offences in their entirety and that, conversely, the offence of “minor disorderly acts” did not contain any elements not contained in the offence of “disorderly acts ”. The facts of the two offences must therefore be regarded as substantially the same for the purposes of Article 4 of Protocol No. 7. As the Court has emphasised above, the facts of the two offences serve as its sole point of comparison, and the Government ’ s argument that they were distinct on account of the seriousness of the penalty they entailed is therefore of no relevance for its inquiry. C. Whether there was a duplication of proceedings ( bis ) 1. The Chamber ’ s conclusion 98. The Chamber reiterated that Article 4 of Protocol No. 7 was not confined to the right not to be punished twice but extended to the right not to be prosecuted or tried twice. It held that the Government ’ s argument that the applicant had eventually been acquitted in the criminal proceedings on the charge of disorderly acts had no bearing on his claim that he had been prosecuted and tried on that charge for a second time. 99. The Chamber emphasised that the criminal proceedings against the applicant had been instituted and conducted by the same police department and tried by the same judge. It found that the Russian authorities had permitted the criminal proceedings to be conducted in full knowledge of the applicant ’ s previous administrative conviction of the same offence. 100. Finally, the Chamber found that the violation of the non bis in idem principle had not been the reason for the applicant ’ s acquittal. The acquittal had been founded on a substantive ground, namely the fact that the prosecution had not proved the applicant ’ s guilt to the standard of proof required in criminal as distinct from administrative proceedings. 2. The parties ’ submissions (a) The applicant 101. The applicant submitted that Article 4 of Protocol No. 7 applied not only to cases where a defendant was convicted twice, but also to cases where a defendant was prosecuted twice, regardless of whether there had been a conviction. He recalled that in the case of Gradinger that provision had applied even though the applicant had been convicted of one offence and acquitted of the other. Similarly, he had been prosecuted, tried and eventually acquitted of the offence of “disorderly acts”, although he had been convicted previously of an offence of “minor disorderly acts” which had the same essential elements. In his view, that situation amounted to a breach of the non bis in idem principle. 102. The applicant further maintained that his case was different from that of Ščiukina v. Lithuania ( ( dec. ), no. 19251/02, 5 December 2006), where the domestic courts had explicitly acknowledged that there had been a violation of the non bis in idem principle and had referred to the possibility of having the previous administrative conviction erased. By contrast, in the instant case a mere reference to the administrative proceedings against the applicant in the judgment of 2 December 2002 could not be interpreted as an acknowledgement of a violation of the applicant ’ s right not to be tried twice. No mention of the non bis in idem principle had been made in the judgment, whether as a norm of the Constitution, of international human rights law or of the Code of Criminal Procedure. As a matter of Russian law, the applicant could not benefit from that principle anyway, as the guarantee against duplication of proceedings was applicable only to “crimes”, whereas the applicant had been convicted of an offence classified as administrative. The applicant had been acquitted not because of the repetitive nature of the prosecution, but because of the lack of evidence to prove his guilt. 103. The applicant expressed his disquiet at the approach established in the case of Zigarella v. Italy ( ( dec. ), no. 48154/99, Reports 2002 -IX ), whereby, in the absence of any damage proved by the applicant, Article 4 of Protocol No. 7 would be breached only if the new proceedings were brought in the knowledge that the defendant had already been tried in previous proceedings. He maintained that it was improbable that the proceedings could be instituted without the knowledge of the State, as it was always the arm of the State which instigated criminal proceedings. In any event, the applicant ’ s factual situation had differed from that obtaining in Zigarella since the Russian authorities had conducted proceedings against him for more than fourteen months in full knowledge of his previous conviction. (b) The Government 104. The Government claimed for the first time before the Grand Chamber that the applicant could have appealed against his administrative conviction to a higher court. The time-limit for appeal was set at ten days and could be extended at the request of a party. The applicant had not appealed against the administrative conviction and it had not become “final” within the meaning of Article 4 of Protocol No. 7. 105. In the proceedings before the Chamber, the Government maintained that the District Court had acquitted the applicant of the charge of disorderly acts under Article 213 § 2 of the Criminal Code and thereby remedied an earlier violation of the applicant ’ s rights committed by the investigation. As the second set of proceedings had ended in the applicant ’ s acquittal on the charge of disorderly acts, there had been no repetition of proceedings. The Government did not repeat this argument before the Grand Chamber. (c) The third party 106. The third party criticised the Court ’ s decision in the Zigarella case which, in its view, introduced a new criterion of applicability which had not existed in the original text of Article 4 of Protocol No. 7, namely the supposed purpose of the provision, to the effect that only new prosecutions that had been initiated intentionally flouted the non bis in idem rule. The third party urged the Court to abandon that additional criterion as it might prove hazardous for the future. 3. The Court ’ s assessment (a) Whether there was a “final” decision 107. The Court reiterates that the aim of Article 4 of Protocol No. 7 is to prohibit the repetition of criminal proceedings that have been concluded by a “final” decision (see Franz Fischer, cited above, § 22, and Gradinger, cited above, § 53). According to the Explanatory Report to Protocol No. 7, which itself refers back to the European Convention on the International Validity of Criminal Judgments, a “decision is final ‘ if, according to the traditional expression, it has acquired the force of res judicata. This is the case when it is irrevocable, that is to say when no further ordinary remedies are available or when the parties have exhausted such remedies or have permitted the time-limit to expire without availing themselves of them ’ ”. This approach is well entrenched in the Court ’ s case-law (see, for example, Nikitin v. Russia, no. 50178/99, § 37, ECHR 2004 ‑ VIII, and Horciag v. Romania (dec.), no. 70982/01, 15 March 2005). 108. Decisions against which an ordinary appeal lies are excluded from the scope of the guarantee contained in Article 4 of Protocol No. 7 as long as the time-limit for lodging such an appeal has not expired. On the other hand, extraordinary remedies such as a request for the reopening of the proceedings or an application for extension of the expired time-limit are not taken into account for the purposes of determining whether the proceedings have reached a final conclusion (see Nikitin, cited above, § 39). Although these remedies represent a continuation of the first set of proceedings, the “final” nature of the decision does not depend on their being used. It is important to point out that Article 4 of Protocol No. 7 does not preclude the reopening of the proceedings, as stated clearly by the second paragraph of Article 4. 109. In the instant case the administrative judgment of 4 January 2002 was printed on a standard form which indicated that no appeal lay against it and that it took immediate effect (see paragraph 19 above). However, even assuming that it was amenable to an appeal within ten days of its delivery as the Government claimed, it acquired the force of res judicata after the expiry of that time-limit. No further ordinary remedies were available to the parties. The administrative judgment was therefore “final” within the autonomous meaning of the Convention term by 15 January 2002, while the criminal proceedings began on 23 January 2002. (b) Whether the applicant ’ s acquittal prevents application of the guarantees of Article 4 of Protocol No. 7 110. Like the Chamber, the Court reiterates that Article 4 of Protocol No. 7 is not confined to the right not to be punished twice but extends to the right not to be prosecuted or tried twice (see Franz Fischer, cited above, § 29). Were this not the case, it would not have been necessary to add the word “punished” to the word “tried” since this would be mere duplication. Article 4 of Protocol No. 7 applies even where the individual has merely been prosecuted in proceedings that have not resulted in a conviction. The Court reiterates that Article 4 of Protocol No. 7 contains three distinct guarantees and provides that no one shall be (i) liable to be tried, (ii) tried or (iii) punished for the same offence (see Nikitin, cited above, § 36). 111. The applicant in the present case was finally convicted of minor disorderly acts and served the penalty imposed on him. He was afterwards charged with disorderly acts and remanded in custody. The proceedings continued for more than ten months, during which time the applicant had to participate in the investigation and stand trial. Accordingly, the fact that he was eventually acquitted of that charge has no bearing on his claim that he was prosecuted and tried on that charge for a second time. For that reason the Grand Chamber, like the Chamber, finds without merit the Government ’ s contention that there had been no repetition of the proceedings because the applicant had eventually been acquitted of the charge under Article 213 § 2 of the Criminal Code. (c) Whether the acquittal deprived the applicant of his victim status 112. Finally, the Court will examine the Government ’ s alternative argument that the applicant ’ s acquittal of the charge under Article 213 § 2 of the Criminal Code had deprived him of his status as a “victim” of the alleged violation of Article 4 of Protocol No. 7. 113. The Court notes that it has previously found that the way in which the domestic authorities dealt with the two sets of proceedings may be relevant for determination of the applicant ’ s status as a “victim” of the alleged violation of Article 4 of Protocol No. 7 in accordance with the consistent criteria established in its case-law. Thus, in the Zigarella case (cited above) the domestic authorities conducted two sets of proceedings against the applicant concurrently. Following delivery of a “final” judgment in the first proceedings, the second proceedings were terminated on the ground that their conduct was in breach of the non bis in idem principle. The Court accepted that the authorities had explicitly acknowledged a violation and, by discontinuing the second set of proceedings, had offered adequate redress. The applicant therefore lost his status as a “victim” of the alleged violation of Article 4 of Protocol No. 7. 114. The Court elaborated on this approach in the Falkner case, in which it found that it must be possible for the national authorities to remedy situations such as the one obtaining in that case, in which the first proceedings had been conducted by an administrative authority lacking jurisdiction in the matter. As the authority had subsequently acknowledged its error, discontinued the proceedings and reimbursed the fine, the applicant could no longer claim to be affected by the outcome of those proceedings (see Falkner v. Austria (dec.), no. 6072/02, 30 September 2004 ). 115. The Court therefore accepts that in cases where the domestic authorities institute two sets of proceedings but later acknowledge a violation of the non bis in idem principle and offer appropriate redress by way, for instance, of terminating or annulling the second set of proceedings and effacing its effects, the Court may regard the applicant as having lost his status as a “victim”. Were it otherwise it would be impossible for the national authorities to remedy alleged violations of Article 4 of Protocol No. 7 at the domestic level and the concept of subsidiarity would lose much of its usefulness. 116. Turning to the facts of the present case, the Court finds no indication that the Russian authorities at any point in the proceedings acknowledged a breach of the non bis in idem principle. The applicant ’ s acquittal under Article 213 § 2 of the Criminal Code was not based on the fact that he had been tried for the same actions under the Code of Administrative Offences. The reference to the administrative proceedings of 4 January 2002 in the text of the judgment of 2 December 2002 was merely a statement that those proceedings had taken place. On the other hand, it emerges clearly from the text of the judgment that the District Court had examined the evidence against the applicant and found that it failed to meet the criminal standard of proof. Accordingly, his acquittal was founded on a substantive rather than a procedural ground. 117. The failure of the domestic court to acknowledge a breach of the non bis in idem principle distinguishes the instant case from the Ščiukina case (cited above), where the Supreme Court of Lithuania had expressly acknowledged a violation of this principle by reference to the provisions of the Lithuanian Constitution and Code of Criminal Procedure. 118. In the Russian legal system, however, the prohibition on repetition of proceedings is restricted to the criminal justice sphere. Under the Code of Criminal Procedure, a previous conviction for an essentially similar administrative offence does not constitute a ground for discontinuing the criminal proceedings (see paragraph 27 above). Similarly, the Russian Constitution only protects an individual against a second conviction for the same “crime” (see paragraph 26 above). Hence, unlike in the Ščiukina case, the Russian courts do not have at their disposal legal provisions which would allow them to avoid a repetition of proceedings in a situation where the defendant is on trial for an offence of which he or she has already been finally convicted or acquitted under the Code of Administrative Offences. 119. In the light of the above considerations, the Court finds that the applicant ’ s acquittal of the charge under Article 213 § 2 of the Criminal Code did not deprive him of his status as a “victim” of the alleged violation of Article 4 of Protocol No. 7. D. Summary of findings and conclusion 120. The Court has found above that the applicant was convicted of “minor disorderly acts” in administrative proceedings which are to be assimilated to “penal procedure” within the autonomous Convention meaning of this term. After his conviction became “final”, several criminal charges were raised against him. Of those, a majority referred to the applicant ’ s conduct at different times or in different locations. However, the charge of “disorderly acts” referred to precisely the same conduct as the previous conviction of “minor disorderly acts” and also encompassed substantially the same facts. 121. In the light of the foregoing, the Court considers that the proceedings instituted against the applicant under Article 213 § 2 (b) of the Criminal Code concerned essentially the same offence as that of which he had already been convicted by a final decision under Article 158 of the Code of Administrative Offences. 122. There has therefore been a violation of Article 4 of Protocol No. 7. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 123. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 124. In the proceedings before the Chamber, the applicant left determination of the amount of compensation for non-pecuniary damage to the Court ’ s discretion. The Chamber awarded him 1,500 euros (EUR). 125. The applicant was not requested to submit a new claim for just satisfaction in the proceedings before the Grand Chamber. 126. The Court sees no reason to depart from the Chamber ’ s assessment, made as it was on an equitable basis. Accordingly, it awards the applicant EUR 1,500 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount. B. Costs and expenses 127. In the proceedings before the Chamber, the applicant claimed 12,700 Russian roubles for the work of two lawyers in the domestic proceedings, EUR 500 for 10 hours ’ work by his representative Mr Koroteyev and 300 pounds sterling (GBP) for 3 hours ’ work by Mr Leach in the Strasbourg proceedings, and GBP 138.10 for translation costs. The Chamber awarded him EUR 1,000 in respect of costs and expenses, plus any tax chargeable on that amount. 128. The applicant claimed an additional EUR 1,724.70 and GBP 4,946 in respect of the proceedings under Article 43 of the Convention. These amounts were broken down into EUR 1,380 for 23 hours ’ work by Mr Koroteyev, GBP 4,017 for 40 hours and 10 minutes ’ work by Mr Leach, EUR 344.70 and GBP 159 for their travel and accommodation expenses in Strasbourg, and the remaining GBP 770 for administrative and translation expenses. 129. The Government submitted that the claims “contradict[ed] the principle of necessity and reasonableness of costs and expenses”. They also alleged that the administrative and translation expenses had not been sufficiently detailed. 130. According to the Court ’ s established case-law, an award can be made in respect of costs and expenses incurred by the applicant only in so far as they have been actually and necessarily incurred and are reasonable as to quantum (see Belziuk v. Poland, 25 March 1998, § 49, Reports of Judgments and Decisions 1998-II). 131. In the present case the Court notes that the applicant was represented by Mr Koroteyev and Mr Leach from the outset of the proceedings before it. It is satisfied that the rates and the hours claimed are reasonable and that the expenses were actually incurred by the applicant ’ s representatives. On the basis of the material produced before it, the Court awards the applicant EUR 9,000 in respect of costs and expenses, plus any tax that may be chargeable to the applicant, the award to be paid into the representatives ’ bank account in the United Kingdom as identified by the applicant. C. Default interest 132. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | As to the existence of a “criminal charge” in the applicant’s case, the Grand Chamber took the view that although the proceedings instituted against the applicant before the District Court in January 2002 were classified as administrative in national law, they were to be equated with criminal proceedings on account, in particular, of the nature of the offence and the severity of the penalty. Then, as to whether the offences were the same, the Grand Chamber noted that it had adopted a variety of approaches in the past, placing the emphasis either on identity of the facts irrespective of their legal characterisation, on the legal classification, accepting that the same facts could give rise to different offences, or on the existence or otherwise of essential elements common to both offences. Taking the view that the existence of these different approaches was a source of legal uncertainty which was incompatible with the fundamental right guaranteed by Article 4 of Protocol No. 7, the Grand Chamber decided to define in detail what was to be understood by the term “same offence” for the purposes of the Convention. After examining the scope of the right not to be tried and punished twice as set forth in other international instruments, it stated that Article 4 of Protocol No. 7 should be construed as prohibiting the prosecution or trial of an individual for a second offence in so far as it arose from identical facts or facts that were “substantially” the same as those underlying the first offence. This guarantee came into play where a new set of proceedings was instituted after the previous acquittal or conviction had acquired the force of res judicata. In the instant case the Grand Chamber considered that the facts underlying the two sets of administrative and criminal proceedings against the applicant differed in only one element, namely the threat to use violence against a police officer, and should therefore be regarded as substantially the same. Lastly, as to whether there had been a duplication of proceedings, the Grand Chamber found that the judgment in the “administrative” proceedings sentencing the applicant to three days’ detention amounted to a final decision, as no ordinary appeal lay against it in domestic law. The Court further stressed that the fact that the applicant had been acquitted in the criminal proceedings had no bearing on his claim that he had been prosecuted twice for the same offence, nor did it deprive him of his victim status, as he had been acquitted not on account of the breach of his rights under Article 4 of Protocol No. 7, but solely on the ground of insufficient evidence against him. In the present case, the Court concluded that the proceedings instituted against the applicant under Article 213 § 2 (b) of the Criminal Code concerned essentially the same offence as that of which he had already been convicted under the Code of Administrative Offences, and that he had therefore been the victim of a breach of Article 4 of Protocol No. 7. |
651 | Lawyers | THE LAW I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 31. The applicant complained that the disciplinary penalty imposed on him was incompatible with Article 10 of the Convention, which reads as follows: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” ... B. Merits 1. The parties ’ submissions 33. The applicant justified the forcefulness of his defence by the unreasonableness of the French authorities ’ request to the Syrian authorities to question S.A., thus clearly exposing the latter to torture. He emphasised that the Government had made no mention of any effort by the prosecuting or investigating authorities to prevent such acts of torture or to ensure that those acts would not have any effect on the French proceedings. They could have ( 1) requested the suspect ’ s extradition, or ( 2) referred the matter to the Investigation Division with a view to having the relevant statements excluded from the file under Article 173 of the Code of Criminal Procedure ... In that context he indicated that he had been in a difficult situation, since the committal decision was supposed to have removed all such defects from the previous proceedings. In that connection he observed that the public prosecutor had failed to react to his remarks before the trial court. 34. The applicant argued that the offending remarks, and in particular the use of the word “complicity”, had to be placed in their context and were dominated by the denunciation of an unacceptable lack of intervention. In addition, a number of points warranted particular attention : ( 1) the origin of the disciplinary offence lay in written pleadings submitted before the criminal courts and not in public remarks made outside the courtroom; ( 2) the forceful criticisms, of a systemic nature, did not refer to the judges ’ names and were strictly part of a debate in the general interest geared towards the defence of S.A.; and (3) the judiciary itself had not been impugned, as the criticism of the public prosecutor ’ s office or the judicial investigation had not been directed at the trial courts themselves. 35. The applicant took the view that the option of disciplinary proceedings did not meet any compelling need. The authorities could have used other, less harmful means to limit his freedom of expression, such as a request by the public prosecutor for the redacting of any remarks in his pleadings considered irrelevant to the defence of S.A. or proceedings brought by the investigating judges for defamation or insult under the press legislation. He observed that the trial courts had, moreover, noted the excessive nature of the defence and that this assessment could have been regarded as sufficient without extending the matter to the disciplinary plane. He concluded by pointing out that to be found to have impugned the honour of judges had severe repercussions on a lawyer ’ s career and was a disproportionate sanction. 36. The Government did not dispute the fact that there had been an interference. They argued that it was prescribed by law, namely by the decree of 27 November 1991 organising the legal profession, and that it pursued the legitimate aim of protecting the reputation or the rights of others; in addition, the proceedings against the applicant had been such as to “maintain the authority and impartiality of the judiciary”. Further, the interference had met a pressing social need and had been proportionate to the aims pursued. 37. The Government took the view that it had not been necessary for the defence of S.A. to make derogatory comments about the judges concerned. They considered that the attacks had been pointless and gratuitous and that the applicant could have simply submitted that the prohibition of torture was absolute. 38. In the Government ’ s submission, the content of the statements could not merely be regarded as a lack of regard for the authorities concerned; they were in reality capable of undermining public confidence in the justice system ( contrast Foglia v. Switzerland, no. 35865/04, § 95, 13 December 2007, and the judgments cited ). The allegations of complicity in torture had thus been directed personally against the judges, who could be recognised and identified even though not named, and had impugned their respectability, their moral integrity and their professional and ethical qualities. The remarks were dishonourable as they related to particularly serious criminal offences carrying severe penalties. The applicant was precluded, in the Government ’ s opinion, from minimising the meaning of his remarks and defining the alleged complicity in torture as a mere lack of curiosity on the part of the judges concerned: the comment that they had “promoted torture ” referred to the idea of active complicity, as found by the Paris Court of Appeal. 39. The Government emphasised that the impugned remarks, contained as they were in the applicant ’ s pleadings, had been the result of careful consideration and not of a fit of anger or the sort of sudden immoderate language that could be heard in the occasional vociferous exchanges during court proceedings. 40. The Government added that such exchanges certainly did not allow disrespectful remarks to be directed against investigating judges, who were not parties to the criminal proceedings ( unlike prosecutors – they referred to Nikula, cited above, § 52). They argued that the immunity of lawyers in respect of their pleadings was not absolute : it did not entail disciplinary immunity and did not obviate the need to use prudent language. 41. The Government further noted the lack of basis of the impugned statements, which amounted to value judgments. They did not dispute the veracity of the factual information about the acts of torture, but took the view that the subjective conclusions as to the judges ’ implication in the commission of those acts were inadmissible; the Criminal Court had pointed out that M.B. had not been authorised to participate in S.A. ’ s interviews in Syria. 42. The Government concluded that the impugned remarks had constituted attacks on judges which could endanger the dispassionate conduct of judicial proceedings, without regard for the essential principles of tactfulness and moderation that lawyers, on taking the oath, undertook to uphold. They were of the opinion that, in view of the gravity of those accusations, a disciplinary sanction, which was less of a deterrent than a criminal sanction, appeared proportionate. 2. The Court ’ s assessment ( a) General principles 43. The Court refers to the general principles concerning freedom of expression as set out in Morice v. France ( [GC], no. 29369/10, §§ 124 - 27, 2 3 April 2015 ). 44. In terms, more specifically, of maintaining the authority of the judiciary, the Court has emphasised that regard must be had to the special role of the judiciary in society. As the guarantor of justice, a fundamental value in a law-governed State, the judiciary must enjoy public confidence if they are to be successful in carrying out their duties. It may therefore prove necessary to protect such confidence against gravely damaging attacks that are essentially unfounded, especially in view of the fact that judges who have been criticised are subject to a duty of discretion that precludes them from replying. Nevertheless – save in the case of such attacks – judges may, when acting in their official capacity, be subject to wider limits of acceptable criticism than ordinary citizens ( see Morice, cited above, §§ 128 and 131, and Peruzzi v. Italy, no. 39294/09, § 52, 30 June 2015). 45. Freedom of expression is applicable also to lawyers. It encompasses not only the substance of the ideas and information expressed but also the form in which they are conveyed. Lawyers are thus entitled, in particular, to comment in public on the administration of justice, provided that their criticism does not overstep certain bounds. The usual rules of conduct imposed on members of the Bar, particularly as regards “dignity, honour or integrity” or “ respect for the fair administration of justice”, contribute to the protection of the judiciary from gratuitous and unfounded attacks, which may be driven solely by a wish or strategy to ensure that the judicial debate is pursued in the media or to settle a score with the judges handling a particular case. The question of freedom of expression is related to the independence of the legal profession, which is crucial for the effective functioning of the fair administration of justice. It is only in exceptional cases that restriction – even by way of a lenient criminal sanction – of defence counsel ’ s freedom of expression can be accepted as necessary in a democratic society ( see Morice, cited above, §§ 134 - 35). 46. It is nevertheless appropriate to distinguish between the expression of lawyers inside and outside the courtroom. As regards “conduct in the courtroom”, which is the relevant aspect in the present case, only those remarks which exceed what is permitted by the exercise of defence rights would legitimise restrictions on the freedom of expression of lawyers. The Court would refer to paragraph 137 of the Morice judgment, which reiterates the terms of the Nikula judgment ( cited above ) : “§ 137 ... since the lawyer ’ s freedom of expression may raise a question as to his client ’ s right to a fair trial, the principle of fairness thus also militates in favour of a free and even forceful exchange of argument between the parties ... Lawyers have the duty to ‘ defend their clients ’ interests zealously ’ ..., which means that they sometimes have to decide whether or not they should object to or complain about the conduct of the court ... In addition, the Court takes into consideration the fact that the impugned remarks are not repeated outside the courtroom and it makes a distinction depending on the person concerned; thus, a prosecutor, who is a ‘ party ’ to the proceedings, has to ‘ tolerate very considerable criticism by ... defence counsel ’, even if some of the terms are inappropriate, provided they do not concern his general professional or other qualities ...” In the Nikula judgment ( cited above, §§ 51 and 52), the Court took the view that remarks made by a lawyer during the hearing did not constitute personal insults, but criticisms directed at the prosecution strategy which were “of a procedural character”. More recently, in the case of Kincses v. Hungary ( no. 66232/10, §§ 33 and 37, 27 January 2015, and see all the cases cited therein ), the Court reiterated that a clear distinction must be made between criticism and insult ( see also Wingerter v. Germany (dec.), no. 43718/98, 21 March 2002, and Fuchs v. Germany (dec.), nos. 2922 2 /11 and 64345/11, 27 January 2015, concerning a judgment against a lawyer for defamatory remarks made against an expert for the prosecution ). 47. Lastly, the Court would point out that it has previously found that ex post facto review of remarks made by a lawyer in the courtroom is difficult to reconcile with defence counsel ’ s duty to defend their clients ’ interests zealously and could have a “chilling” effect on the practise of the legal profession ( see Nikula, cited above, § 54; Steur v. the Netherlands, no. 39657/98, § 44, ECHR 2003 ‑ XI; and, mutatis mutandis, Roland Dumas v. France, no. 34875/07, § 48, 15 July 2010). ( b) Application of those principles to the present case 48. The impugned judgment against the applicant can be regarded as an “interference” with his right to freedom of expression, as the Government acknowledge. Such an interference will breach Article 10 of the Convention, unless it is “prescribed by law”, pursues one or more of the legitimate aims listed in paragraph 2 of Article 10, and is “necessary in a democratic society” in order to fulfil the said aim or aims. 49. It is not in dispute between the parties that the interference was prescribed by law, namely by the legislation organising the legal profession ... They also agree that the aim of the interference was the protection “of the reputation or rights of others”. The Government were of the view that it also had the aim of maintaining the authority and impartiality of the judiciary. The Court, like the Government, finds that the proceedings brought against the applicant also pursued the legitimate aim of protecting the “authority of the judiciary”, to which the investigating judges belonged. 50. The Court must further examine whether that interference was necessary in a democratic society, thus requiring it to ascertain whether it was proportionate to the legitimate aim and whether the reasons given by the domestic courts were relevant. 51. The Court notes that the impugned remarks, on account of their virulence, were clearly insulting for the investigating judges. It reiterates that the proper functioning of the courts would not be possible without relations based on consideration and mutual respect between the various protagonists in the justice system, at the forefront of which are judges and lawyers ( see Morice, cited above, § 170). The Court finds in this connection, as did the Paris Court of Appeal ( see paragraph 21 above ), that the applicant ’ s conclusions accusing the investigating judges of being complicit in torture were not necessary for the pursuit of his stated aim, namely to have the statements taken from S.A. under torture excluded from the evidence, especially as the first-instance court had already accepted that request ( see paragraph 14 above ). Nevertheless, it must be ascertained whether the disciplinary sanction imposed on the applicant by the Paris Court of Appeal, as upheld by the Court of Cassation, struck a fair balance between courts and lawyers in the context of a fair administration of justice. 52. The Court observes that the impugned remarks had been made in a judicial context, because they had been transmitted in writing when the applicant submitted his pleadings before the Paris Court of Appeal. They were part of his efforts to obtain, before addressing the merits of the case, the exclusion by that court of the statements that had been taken from his client under torture in Syria. The Court notes that the passages identified as offensive by the public prosecutor were not directed at the investigating judges by name but concerned the manner in which they had conducted the investigation. In particular, the applicant had complained about the choice of issuing an international letter of request when the judges should have known that interrogations by the Syrian secret service were conducted without regard for human rights and more specifically in breach of Article 3 of the Convention. The Court took the view that this “accusation” concerned the procedural choice of the judges. The Court finds, moreover, that the national courts did uphold the request to exclude evidence obtained in violation of Article 3 of the Convention ( see, for example, Gäfgen v. Germany [GC], no. 22978/05, §§ 107-108, ECHR 2010) whereas that cause of exclusion had not been raised during the judicial investigation, neither by the judges themselves nor by the public prosecutor ( see paragraphs 12 ... above ). In that procedural context, the Court found that the impugned pleadings directly contributed to the applicant ’ s task of defending his client, to ensure that the case file going forward would be “cleansed” of any inadmissible evidence. 53. The Court agrees with the Government ’ s characterisation of the remarks, which were more like value judgments, as they mainly consisted in an overall assessment of the conduct of the investigating judges during the judicial investigation. It takes the view, however, that the remarks did have some factual basis. It notes that while the judge M.B. was not able to take part in the interviews, he followed them in real time, in Damascus, on the basis of the list of questions contained in the international letter of request and the supplementary questions to which he wished to have answers, in addition to those already recorded ( see paragraph 14 above ). Moreover, the Court observes that the methods of the Syrian police were notorious, as shown by the witness statements adduced in the Criminal Court in the present case and also by all the international reports on this subject ( see, for example, Al Husin v. Bosnia and Herzegovina, no. 3727/08, §§ 40 - 43, 7 February 2012). 54. The Court further finds that the applicant ’ s criticisms remained inside the “courtroom”, because they were contained in written pleadings. They were not therefore capable of undermining or threatening the functioning of the justice system or the reputation of the judiciary among the general public. It observes in this connection that the Paris Court of Appeal and the Court of Cassation failed to take this contextual element into account ( contrast Fuchs, cited above, § 42) and did not give consideration to the limited audience to which the remarks had been addressed. 55. Having regard to the foregoing, the Court is of the view that the disciplinary sanction imposed on the applicant was not proportionate. In addition to the negative repercussions of such a sanction on the professional career of a lawyer, the Court finds that any ex post facto review of offending oral or written submissions on the part of a lawyer must be implemented with particular prudence and moderation. While it is certainly the task of the judicial and disciplinary authorities, in the interest of the smooth operation of the justice system, to take note of, and even occasionally to penalise, certain conduct of lawyers, they must ensure that such review does not constitute for the latter a threat with a “chilling” effect that would harm the defence of their clients ’ interests. Thus, in the present case, the President of the Division of the Court of Appeal which examined the case of the applicant ’ s client had already, at the hearing, invited the applicant to moderate his remarks, and then, deeming them excessive, the Division had indicated in the operative part of its judgment that it dismissed the relevant submissions on the ground that the remarks were dishonourable ( see paragraph 16 above ). Finding this warning to be sufficient, the judges had not considered it appropriate to ask the Principal Public Prosecutor to refer the matter to the disciplinary bodies. It was only several months after the filing of the impugned pleadings in the Court of Appeal, and after that court ’ s judgment, that the said prosecutor initiated disciplinary proceedings. In the light of all the circumstances of the present case, the Court finds that by going beyond the firm and dispassionate position of the Court of Appeal and imposing a disciplinary sanction on the applicant, the authorities excessively undermined the lawyer ’ s task of defending his client. 56. In conclusion, the Court finds that there has been a violation of Article 10 of the Convention on account of the disproportionate nature of the sanction imposed on the applicant. ... | The Court held that there had been a violation of Article 10 (freedom of expression) of the Convention. It found in particular that the remarks in question, as they were so harsh, clearly showed some contempt for the investigating judges. However, they did not refer to the judges personally but concerned the manner in which they had carried out the investigation. The written submissions, which had a factual basis, contributed directly to the defence of the applicant’s client and did not leave the courtroom. As the applicant had already been summoned to show moderation, during the hearing in the Paris Court of Appeal, the Court found that the disciplinary sanction was not proportionate. In this case the Court also recalled that, while it was for judicial and disciplinary authorities, in the interest of the proper functioning of the justice system, to penalise certain conduct by lawyers, those authorities had to ensure that such scrutiny did not have a chilling effect that would hinder them in defending their clients’ interests. |
Subsets and Splits